1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.282 OF 2005 1. Arun Khan (expired) represented by legal heirs: (a) Mohamad Azim Khan; (b) Bilkies Banu Gazi, (c) Mohamad Hanif Khan; (d) Ashmat Khan; (e) Arshad Khan; (f) Ramila Khan; (g) Farid Khan; (h) Marzia Khan; (i) Adil Khan; (j) Latifa Bi, All residents of Muslimwada, Sanguem-Goa. (2) Adam Khan, resident of Muslimwada, Sanguem-Goa. (3) Haroon Khan (expired), represented by legal heirs: (a) Mohamad Azim Khan; (b) Bilkies Banu Gazi; (c) Mohamad Hanif Khan; (d) Ashmat Khan; (e) Arshad Khan; (f) Ramila Khan; (g) Farid Khan; (h) Marzia Khan; (i) Adil Khan; (j) Latifa Bi, All residents of Muslimwada, Sanguem-Goa. …. Appellants V/s (1) Mr. Anandrao Govind Quencro; (2) Seema A. Quencro, 2 Both residents of Pansulem, Canacona-Goa. (3) Caxinath Xamba Sinai Salelkar; (4) Indirabai Caxinath Sinai Salelkar, Both residents of House No.1178, Pansulem, Canacona-Goa. (Both expired), represented by legal representatives: (a) Smt. Seema @ Sudha Anadrao Sinai Kekre, daughter, resident of Ponsulem, Canacona-Goa. (b) Shri Anandrao Govind Sinai Kenkre, son-in-law, resident of Ponsulem, Canacona-Goa. (c) Smt. Sulochana Vinayak Kudchadkar, daughter (deceased) (d) Shri Vinayak Kudchadkar, son-in-law (deceased) and their sons:- (i) Shri Nitin Vinayak Kudchadkar, resident of Goa Carbon Ltd., Nessai Industrial Estate, Salcete-Goa. (ii) Pradeep Vinayak Kudchadkar ….appeal stands Amendment carried out as per dismissed order dated 3/07/2003 at Exhibit 13). Shri D. Pangam, Advocate for the Appellants. Mr. C.A. Coutinho, Advocate for Respondents Nos.3 & 4. CORAM : F.M. REIS, J. DATE : 1st APRIL, 2011. 3 JUDGMENT : The above appeal challenges the judgment and award dated 27/09/2005, passed by the learned Additional District Judge, South Goa, Margao in Land Acquisition Case No.143/2000. 2. Pursuant to a notification under Section 4 of the Land Acquisition Act, 1894, herein after referred to as "the said Act", dated 22/01/1997, published in the Official Gazette dated 31/01/1997, various portions of the property from the village of Xelpem and Cotarli from Sanguem Taluka were intended to be acquired. Amongst the said properties, a portion of the property admeasuring an area of 1240 square metres bearing survey no.6/0 (part) from village of Cotarli in Sanguem Taluka was also acquired. By an award dated 27/01/2000, the Land Acquisition Officer awarded compensation of Rs.17,041/- for the said land acquired and in view of the dispute between the parties, the same was referred for adjudication under Section 30 of the said Act to the learned District Judge. By the said judgment and award dated 27/09/2005, the learned Additional District Judge directed that the compensation awarded be paid to the legal heirs of the deceased party no.6 and 7, who are the respondents nos.3 & 4 in the present appeal. Being aggrieved by the said judgment, the appellants who 4 are party nos.1,2 & 3 have preferred the present appeal. 3. Shri Pangam, the learned Counsel appearing for the appellants has assailed the impugned judgment and submitted that the Reference Court has misread the evidence on record and failed to consider that the survey record stand in the name of the appellants, and such records are duly promulgated and, consequently, the compensation ought to have been awarded to the appellants herein. The learned Counsel further submitted that the appellants were factually in possession of the acquired portion of the land and the respondents nos.3 & 4 have no right at all to the compensation awarded. The learned Counsel further submitted that even assuming the findings of the Court below are accepted by this Court the same should not prejudice the rights of the appellants with regard to the remaining portion of the land which according to him is in possession of the appellants and the appellants as such have acquired title and interest therein. The learned Counsel further submitted that the appellants have put up a claim of adverse possession which has been duly established by them by cogent evidence on record. The learned Counsel further submitted that respondents nos.3 & 4 were never in possession of the acquired portion of the land and, as such, the question of awarding any 5 compensation to them would not arise. 4. On the other hand, Shri C.A. Coutinho, appearing for respondents nos.3 & 4 supported the impugned judgment and pointed out that there is no dispute that the original grant was in favour of the respondents nos.3 & 4 and their ancestors and, as such, the question of appellants claiming the property in their favour would not arise. The learned Counsel has taken me through the evidence on record and pointed out that once the grant in favour of respondents nos.3 & 4 has been established, the question of appellants claiming that the property belongs to them would not arise. The learned Counsel further submitted that there are no particulars of the claim of adverse possession and as such the alleged claim is very vague and the same has been rightly rejected by the Reference Court. The learned Counsel also pointed out that in order that a party can succeed in his claim of title by adverse possession, he has to give necessary particulars as to when his possession was hostile to the true owner and that such possession was exercised for the statutory period. The learned Counsel further submitted that there is no evidence on record to show any hostile possession by the appellants to claim any rights to the acquired portion of the land by adverse possession. The learned Counsel 6 further submitted that this Court can clarify that the findings given herein are only with regard to the acquired portion of the land and would not affect the claim of the rival parties with regard to the unacquired portion of the land which have to be decided on its own merits. 5. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: POINT FOR DETERMINATION : Whether the Reference Court was justified to award the compensation in favour of the legal representatives of respondents nos.3 & 4, herein. 6. On perusal of the written statement filed by the respondents nos.3 & 4, it is stated therein that the property surveyed under no.6/0 of Cotarli Village of Sanguem Taluka is owned and possessed by the deceased party nos.3 & 4 and that no other person has any right thereto. It is further their claim that the said property is registered in Land Registration Office under No.21980 at page 101 of book B-59 in view of the grant of the emphytheusis under title no.1326 dated 8/03/1944 by the Government. It is further 7 stated that the said property is in cultivation of Kashinath Salelkar upto his death to whom the land was granted and thereafter from the year 1971 in cultivatory possession of his wife, deceased party no.4, up to her death in the year 1987. It is further stated that in an earlier acquisition the amount of compensation was paid to the said party nos.3 & 4. It is further stated that the land is basically cashew grove and that objections to the survey records have been filed and matter is pending before the learned Deputy Collector. It is further stated that the names of Arun Khan and Adam Khan have been wrongly recorded in the survey record. The appellants have also filed their written statement and they have stated that the land surveyed under no.6 was applied by the late father of the appellant no.1 in the name of Kashinath Salelkar. It is further their case that since the time the grant was given, the same was developed and brought under cultivation by the late father of the appellant no.1 during his life time and, thereafter, by appellant no.1 and his late brother Arun Khan. They have further stated that the land revenue is also paid by the appellants. They have also stated that the said Kashinath Salelkar and his wife were never in possession of the land surveyed under no.6 nor they have done any cultivation therein except received the compensation fraudulently from the Land Acquisition Officer. They further stated that the DC case 8 filed by the said respondents came to be rejected and that the appeal has also been dismissed and the matter is pending before the Administrative Tribunal at Panjim. It is further their case that since 1944 the land has been in open peaceful and continuous possession and occupation and enjoyment of the father of the appellant no.1 and after his death by the appellant no.1 and late Arun Khan without any objection whatsoever and such possession of the acquired land together with remaining land is adverse to the family of Kashinath Salelkar. They have further claimed that the land is in their possession and that they have planted substantial number of cashew trees. In support of their claim, the appellants have examined Adam Khan, who has reiterated the claim as put forward in the said written statement. In the cross-examination, he has admitted that the chalan of the tax produced by him at Exhibit 28 show the payments made by the deceased respondent no.3. He has further admitted that the said property is recorded in the revenue office in the name of deceased party no.3. He has further admitted that the property after the said grant was registered in the Land Registration Office in the name of the deceased respondent no.3. He has further admitted that after the death of Kashinath Salelkar, his wife was staying in Canacona. He has further stated that there are about 800 cashew trees in the said property and denied the 9 suggestion that the same were cultivated by deceased party no.6. He has further stated that his father has not kept anything in writing to show that he has applied for the grant in the name of said Kashinath. He has further admitted that not a single chalan shows that the payment of land tax stands in the name of his father or himself. The next witness examined is Hiru Vithal Velip, who has stated that at the instance of Abdul Khan, he had cleared the said property and that he was doing agricultural work in the said property. In the cross-examination, he has stated that he is not aware about the area where the said Abdul, has done the cashew plantation nor the survey number. He has further stated that the property surveyed under no.6 was granted by the Government to Abdul. He denied the suggestion that he had not done any clearing work in the said property. He denied the suggestion that the property was always in possession of Kashinath Salelkar. Suraj Kenkre is examined as AW3, who is the grandson of the said Kshinath Salelkar. He has stated that the property was granted to his grand father Kashinath and that by the year 1993 there were about 800 cashew trees, around 300 cashew saplings of about 6 years old in the said property. He has further stated that his father Anandrao, who is of 80 years old was getting agricultural work done in the said property. He has further reiterated the statement 10 of the claim of the said respondents. In the cross-examination he has stated that his father resides in Canacona. He has further stated that Kashinath Salelkar is the father of his mother and has visited the property many times. He has further stated that Kashinath was paying towards the Aframento and the cashew plantation was done by his grand father. He has further stated that his father has planted the cashew saplings. He has further stated that in the year 1985 his father came to know about the name of Arun Khan and Adam Khan in the records of the survey and he had filed objections thereof. He denied the suggestion that he and his father started cleaning the property only after the death of Kashinath Salelkar. He denied the suggestion that the said Adam Khan was cultivating the said property. He has stated that the cashew saplings were of local variety. He denied the suggestion that Arun Khan and Adam Khan have right to the acquired land. 7. The learned Judge after appreciating the evidence on record has come to the conclusion that in view of the grant in favour of Kashinath Salelkar, who is the ancestor of the appellants, the compensation awarded is to be paid to the legal representatives of respondents nos.3 & 4. On perusal of the said statement of claim as referred to herein above, I find that the pleadings of the 11 appellants to the effect that the acquired portion of the land was in their possession and that they have acquired title thereon by adverse possession are very vague and do not meet the requirements of law to put up such claim. There are no particulars furnished by the appellants as to when such possession became hostile to the true owner. There is no material on record that such hostile possession continued for the statutory period. When the pleadings to that effect are found wanting, the contention of the learned Counsel appearing for the appellants that they had acquired title therein by adverse possession, cannot be accepted. The law is well settled that the person who is trying to deprive the true owner of his right to an immovable property by claiming adverse possession has to furnish and prove all material facts to establish that he has acquired title by adverse possession. Even in the evidence of the appellants, I find that there was no requisite material on record to consider the claim of the appellants that they had acquired right to the acquired portion of the land by adverse possession. The contention of the appellants that grant was obtained by the father of the appellant no.1 in the name of Kashinath Salelkar has not been established by any evidence on record. The appellants have failed to establish that they they have any right to the acquired portion of the land. Merely because the 12 survey record stands in their name which are otherwise disputed and the matter has not been finally decided, I find that in view of the material on record, especially the grant of the Aframanto in favour of Kashinath Salelkar coupled with the inscription of the matriz record in his name as well as the registration of the property in his name in the Land Registration Office itself disclose that the title and ownership of the acquired portion of the land belongs to the respondents nos.3 & 4. The apprehension of the learned Counsel appearing for the appellants that the findings arrived at by the Reference Court to the effect that the appellants have no right at all to the compensation would affect their claim of adverse possession with regard to the remaining portion of the land which is unacquired stands redressed in view of the submission of the learned Counsel Shri Coutinho appearing for respondents nos.3 & 4. As such, it is clarified that the findings given in the present proceedings are confined to the acquired portion of the land which is subject matter of the acquisition and such findings would not affect the claim of the appellants, if any, to the remaining portion of the property which is unacquired and in case of any such dispute the same would have to be decided on its own merits in accordance with law. The respondents nos.3 & 4 in fact disputed that the appellants have any right to the remaining portion of the land 13 acquired or that they are in possession thereof. 8. Accordingly, on the basis of the material on record, I find no infirmity committed by the Reference Court in coming to the conclusion that ownership of the acquired portion of the land belongs to the respondents nos.3 & 4 and consequently the compensation is to be paid to the legal representatives of respondents nos.3 & 4. The learned Counsel for the appellants was unable to point out any infirmity in such findings of the Reference Court. The contention of the learned Counsel that the appellants were in possession of the acquired portion of the land cannot be accepted. There is no evidence adduced by the appellants to substantiate the said claim, but on the contrary on the basis of claimants' evidence on record as well as the other evidence adduced by respondents nos.3 & 4, there can be no dispute that respondents nos.3 & 4 were entitled for the compensation of the land acquired. On the basis of the evidence on record and on perusal of the impugned judgment, I find no justification to interfere in the directions of the Reference Court that the compensation awarded is to be paid to the legal representatives of respondents nos.3 & 4. The point for determination is answered accordingly. 14 9. Subject to the clarification stated herein above, I find no merit in the above appeal and, consequently, the appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-