Case: STATE OF GOA Vs. NARAYAN V. GAONKAR &amp; ORS

2. The brief facts of the case necessary to be noted for deciding this appeal are:2.1 Special Civil Suit No. 64 of 1995 was filed by Shri Narayan V. Gaonkar, Shri Shivram V. Gaonkar and Shri Rama S.F. Dessai in the Court of Civil Judge, Senior Division at Quepem praying for following: -In the aforesaid circumstances, it is prayed to your honour, to direct the survey authorities to delete the name of Forest Department from the survey entry No.11/1 of the village Sulcorna from Name of the Occupant column of survey Form No.I & XIV and to declare the plaintiffs as the exclusive owners of the property bearing survey No.11/1 known as CONDA MALL or BINDANGAL or BINDAN MOLL or CARIA MOLL of Village Sulcorna of Taluka Quepem2.2 In the Suit, the Secretary, Forest Department, Government of Goa; the Collector South Sub-Division, Margao, Goa; the Director of Survey & Settlement Officer, Survey of Land Records, Panaji, Goa and the Chief Secretary, Government of Goa, Panaji, Goa were defendant Nos. 1 to 4. A common written statement-cum-counter claim was filed by all the defendants refuting the claim of the plaintiffs. The defendants claimed that entire suit property under Survey No.11/1 of village Sulcorna of Quepem Taluka, admeasuring an area of 23,04,500 sq. mtrs. is in possession and belongs to the Forest Department and as such the name of the Forest Department has been rightly recorded in occupants column in said Survey No.11/1 and the plaintiffs nor any person have any right over the suit property2.3 The plaintiffs claim that they are owners in possession of a landed property known as CONDA MOLL or BINDIGAL or BINDAN MOLL, situated at Sulcorna Village in Quepem Taluka, Goa was disputed. Defendants pleaded that entire plantation existing there are planted and enjoyed by the Forest Department. It was pleaded that suit property is a forest property of the Forest Department vide Notification published in the Official Gazette Repartieao de Femente dated 11.01.19512.4 In the counter claim, it was pleaded that plaintiffs have been wrongly recorded as co- occupants in survey No.11/1 of Village Sulcorna, Taluka Quepem, which is owned, enjoyed and in possession of the defendant No.1 - Forest Department for the last many years and reference to the Notification dated 11.01.1951 was made. In the counter claim, following prayers were made by the defendants in paragraph 17:-17. In the circumstances, the Defendants pray:(a) That by a decree in the nature of direction, the survey authority be directed to delete the names of the plaintiffs from the occupants column in respect of survey No.11/1, Sulcorna Village of Quepem Taluka(b) For any other reliefs in the circumstances of the case may require2.5 Written statement to the counter claim was also filed by the plaintiffs claiming that they are in exclusive possession of Survey No.11/1 and the name of the Forest Department has been wrongly recorded as co-occupants2.6 The learned Civil Judge framed two issues to the following effect:-1) Whether the plaintiffs prove that they are owners in possession of the suit property as described in paragraph 1 of the plaint?2) Whether the defendants prove that the plaintiffs name have been wrongly recorded as co- occupant in the property surveyed under No.11/1 of Village Sulcorna and as such their names may be deleted from the occupants column of Survey No.11/1?2.7 While answering Issue No.1, Civil Judge held that plaintiffs have failed to prove that they are owners of the suit property, however, Civil Judge upheld the plaintiffs possession. Issue No.2 was answered against the defendant. A First Appeal was filed by the defendants in the High Court praying that judgment of the learned Civil Judge be quashed and set aside to the extent that learned Civil Judge held that respondents (plaintiffs) were in possession and the judgment insofar as it dismissed the counter claim of the appellants, it was prayed that the High Court may delete the name of the respondents in occupant column in Form Nos.I & XIV and also hold that respondents (plaintiffs) are not in possession of the suit land2.8 No appeal was filed by the plaintiffs against the judgment of the learned Civil Judge. The High Court dismissed the appeal of the appellants while observing that trial court has rightly rejected the plaintiffs prayer for title and also dismissed the defendants- appellants counter claim that they are owners of the property. The High Court, thus, affirmed the judgment of the learned Civil Judge. Aggrieved with the judgment of the High Court, this appeal has been filed by the State of Goa3. This Court on 05.07.2012 passed following order:-Issue notice on the application for condonation of delay as well as on the special leave petitionHowever, the petitioner is directed to produce the relevant records to show that the property in question is a forest land4. In pursuance of the order of this Court dated 05.07.2012, the appellants filed an affidavit dated 17.08.2012 bringing on record Form Nos. I & XIV dated 13.07.2012. The Notification dated 11.01.1951 published in the Government Gazette was also brought on record. A Mining Lease granted by Government of Panaji, Goa dated 09.03.1998 has also been brought on record where Mining Lease of an area of 51 hectares in Survey No.2 of Village Quepem and Survey No.11 of Village Sulcorna was granted by State of Goa5. An I.A. No. 187381 of 2019 was filed by the appellant seeking permission to file additional documents, i.e., Annexures 1 to 5 to the application. This Court by order dated 10.12.2019 allowed the application and permitted the respondents to file a reply to the application and the documents. On 10.12.2019, following order was passed by this Court:-We find sufficient grounds to take additional documents on record. Application is allowedLet the counsel for the respondents file a reply to the application and the documents, which have brought on the record, within four weeksLet records of the Trial Court be also summoned. Registry to take appropriate steps6. By the above order, the record of the trial court was also summoned, which was duly received by this Court and was perused by the Court. In pursuance of the order dated 10.12.2019, counter reply affidavit in reply to the application have been filed by the respondents dated 10.01.202011. The suit filed by the plaintiffs for seeking direction to delete the name of Forest Department from the survey entry No.11/1 of the village Sulcorna and to declare the plaintiffs as the exclusive owner of the property bearing survey No.11/1 having been dismissed by the trial court and no appeal having been filed by the plaintiffs against the said judgment the rejection of the claim of the plaintiffs ownership of survey No.11/1 has become final. In the suit filed by the plaintiffs the appellant had filed the counter-claim which was rejected by the trial court against which appeal was filed by the appellant which has been dismissed by the High Court against which judgment the appellant has come up in this appeal.

Reasoning:
17. We have noticed above that as per Rule 5 in Form II notice was issued inviting all persons who have any interest in the lands in the village to furnish to him either in writing or orally information and objection. In the present case after draft of the Index of Lands prepared under Rule 6 objection was filed by Vishnu Shivram Gaonkar as noted above on which individual notice was also issued to him in Form VI asking him to appear on 20.10.197518. The record of proceeding sheet dated 20.10.1975 indicates that after recording the statement of Vishnu Shivram Gaonkar the case was closed. The above proceedings indicate that the objection filed by Vishnu Shivram Gaonkar was withdrawn and hence there was no decision taken in Dispute Case No.3. Even after withdrawal of the claim by the plaintiff, the names of plaintiffs, Vishnu Shivram Gaonkar, Narayan Vishnu Gaonkar and Rama S.F. Dessai were added by correcting the Form III in red ink as required by sub-Rule(6) of Rule 6. The entry of names of the above persons along with Forest Department was stated to be as per D.C.3 as is clear from Form III Annexure-2 brought on record by the appellant. A coloured print of above Annexure-2 has been placed before us by learned ASG which is taken on record, which indicates that in Form III the addition of names of three persons was by red ink. When Vishnu Shivram Gaonkar had withdrawn his claim for deletion of name of Forest Department, we fail to comprehend that as to how despite that withdrawal which is duly recorded in the proceedings their names can be added along with Forest Department against survey No.11/1. Thus, the recording of names of the plaintiffs in survey No.11/1 along with the name of the Forest Department was illegal and not as per Rule 6 of Rules, 1969. When there was no decision in favour of the plaintiffs, applicant on the objection dated 07.08.1975, there was no question of adding their names in Index of Lands against survey No.11/1. The addition of the names of the plaintiffs against survey No.11/1 was completely without jurisdiction and the said entry cannot be allowed to be continued19. That in the suit filed by the plaintiffs being Special Civil Suit No.64 of 1995, there is no mention of entire proceedings regarding correction of records undertaken in 1975. The plaintiffs in the suit did not disclose the aforesaid facts which were relevant for determining the issues in consideration in the suit. Plaintiffs thus have completely failed to justify the continuance of their names against survey No.11/120. From the additional evidence brought on the record by the State, it is clear that in the record which was published of the Village Sulcarna for survey No.11, it was the name of only Forest Department which was mentioned on survey No.11 area 230.45.00 hectares and the addition of the name of Vishnu Shivaram Gaonkar and two others were in pursuance of Dispute Case No.3. The Goa, Daman and Diu Land Revenue Code, 1968 was enacted to consolidate and amend the Law relating to Land and Land Revenue in the Union of territory of Goa, Daman and Diu as then existed23. We have already noticed our order dated 10.12.2019 where these additional documents have already been accepted with direction to the respondents to file a reply to the application. The respondents do not dispute of having raised the objection after Revenue records were published mentioning Forest Department against the survey No.11/1, when the plaintiffs-respondents have withdrawn their application on 20.10.1975, they cannot be allowed to object the Entry of Forest Department regarding survey No.11/1 as published in Form II24. The matriz document which is claimed to be the basis of rights by the plaintiffs-respondents is not the document of title25. More so, the plaintiffs ought to have agitated for their claim with regard to survey No.11/1 and ought not to have withdrawn application dated 07.08.1975 before the Revenue Official. It is relevant to notice that in the suit which was filed by the plaintiffs any mention of the proceedings regarding records of rights of survey No.11/1 undertaken earlier were not referred to and the mention of proceedings under Revenue Code, 1968 and Rules, 1969 is conspicuously absent. The trial court having dismissed the suit of the plaintiffs for declaring them owner of survey No.11/1, we do not find any justification for continuance of the names of the plaintiffs in survey No.11/1 of Village Sulcorna26. The State in its written statement has claimed that Sulcorna has declared as forest by Gazette Notification dated 11.01.1951 which Gazette was filed as Annexure AA-3 filed on the record which mentions Forests Sulcorna and the name of Village Sulcorna, the Court below had not placed reliance on the said Gazette only for the reason that the Gazette does not mention any survey number. Survey No.11 was situate in the Forest area is further proved by the documents brought on the record by the appellant i.e. Mining Lease which was granted w.e.f 22.11.1987 for survey No.2 of Village Curpem and survey No.11 of Village Sulcorna28. The suit filed by the plaintiffs was to delete the name of Forest Department from survey No.11 which suit having been dismissed the name of the Forest Department continues with regard to survey o.11/1. Even though Gazette dated 11.01.1951 does not mention survey No.11 but Forest was declared in Village Sulcorna and Survey No.11 is forest land is proved by other evidence. We are satisfied that the counter- claim filed by the State deserved to be allowed and the name of the plaintiffs-respondents from survey No.11/1 deserved to be struck off30. The above judgment of the Bombay High Court reiterated that it is the State which is the proprietor of all minerals beneath the land. There can be no dispute to the above proposition. For the purpose of this case what was relied by the appellant was that Mining Lease granted for survey No.11, Lease conditions clearly mention the area as forest area with the requirement to maintain the status of land as the forest land. The grant of Lease by the State is not disputed by the plaintiffs-respondents also. We, thus, are of the considered opinion that the name of the Forest Department recorded in survey No.11, deletion of which has been refused and the name of plaintiffs-respondents in the record in the manner and circumstances in which it came on the records of rights does not establish any claim of the plaintiffs-respondents and defendant has clearly made out the case for allowing counter-claim. The additional evidence brought on record by the State before this Court which has been accepted on record fully support the counter-claim of the defendant. We, thus, are of the view that counter-claim of the defendant-appellant deserves to be allowed and the judgment of courts below is to be modified to the above extent.