First Appeal No. 133 of 2005

12th January, 2012

Petitioner Counsel: Mr. P. TALAULIKAR
Respondent Counsel: Mr. IFTIKAR AGHA

Cases Cited:
Silvestre Mascarenhas and ors. Vs. Smt. Shantu Locmu Fotto and Ors., Second Appeal No. 11 of 1994 [Para 27]
The Union of India and Ors. Vs. Vishnu Pai Kane and Ors., First Appeal No. 17 of 1990 [Para 27]

JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and award dated 28/3/2005 passed by the learned Additional District Judge, South Goa at Margao (Reference Court, for short) in Land Acquisition Case No.282 of 1994.

2.Land was acquired for construction of New Broad Gauge Line of Konkan Railway in village Balli of Quepem Taluka. The award under Section 11 of the Land Acquisition Act 1894 (L.A. Act, for short) was passed on 7/12/1993. The acquisition included an area of 12,700 square metres from survey holding no.56/1 of village Balli of Quepem Taluka. There was a dispute amongst the interested parties regarding apportionment of compensation and therefore the matter was referred, under Section 30 of the L.A. Act, to the Reference Court.

3.The Appellant filed its written statement claiming that the entire acquired land from survey no. 56/1/(part) is a portion of their property known as "Muyavolintil Mol" bearing Matriz no.105 and therefore it is the Appellant only who is entitled to receive the entire compensation.

4.The Respondent no. 1, in his written statement, alleged that he is the owner in possession of the property known as "Bulbeachy Fondy" or "Condimol" bearing Land Registration no.4352, Matriz no.139 and survey nos. 53(part), 55/1(part) and 56(part) of village Balli of Quepem Taluka and that the acquired land, which is part of survey no 56(part), as shown under letters "E" and "G" in the plan, is a portion of his said property. He alleged that he and his brother Govind are entitled to the entire compensation.

5.The Respondent no. 2, in his written statement, claimed that he is a co-owner, along with respondent no. 1 and Smt. Kesar D. Xet, of the property known as "Bulbeachi Fondy" or "Condimoll" bearing Land Registration no.4352, Matriz no.139 and survey nos. 53(part), 55 and 56 of village Balli. He, therefore, claimed that the compensation should be equally divided between him, the respondent no. 1 and Smt. Kesar Xet.

6.The Respondent no. 3, in his written statement, claimed that he is the owner in possession of the property bearing survey no.56 and other survey numbers of village Balli and that his name has been recorded in the occupants column and that the acquired land is part of his property due to which the entire compensation should be paid to him.

7.The respondents no.4 and 5 did not file any written statement. They did not contest the proceedings.

8.The Respondent no. 6 had filed his written statement before the Reference Court. But, he died and the proceedings abated as against the legal representatives of the deceased respondent no.6.

9.The contest was therefore between the appellant and the respondents no. 1 and 2.

10.The Appellant examined its Attorney namely Shankar Fol Dessai and one of its share holders namely Ram Krishna Fal Dessai. The respondents no. 1 and 2 examined themselves. One Civil Engineer namely Shri Mahendra Kakule has also been examined by the respondent no.1.

11.Upon assessment of the entire evidence on record, the learned trial Judge held that the Appellant could not prove its title as well as possession in respect of the acquired land. He held that the respondents no. 1 and 2 have proved their right to and interest in the acquired land and that the share of the respondent no. 2 is 1/12th and that of the respondent no. 1 is remaining 11/12th.

12.The Appellant is aggrieved by the impugned judgment and award. The other parties to the reference have not challenged the said award.

13.Learned Advocate Shri P. Talauilkar argued on behalf of the Appellant, whereas, learned Advocate Shri Iftikar Agha argued on behalf of the respondents no. 1 and 2.

14.Perused the entire record and proceedings.

15.Article 549 of the Code of Comunidade requires a Book known as "Tombo 1" to be used for the inscription of the rural, urban and barren lands of the Comunidade, their measurements and land-marks, for the description of the sources of income of the Comunidade other than from private lands and for the registration of the deeds of identification, description and demarcation of the marginal lands of the roads and the paddy fields, exclusively reserved for the constructions and of the lands capable of being brought under the plough at the cost of the Comunidade. This book has to be accompanied by the plans. Under Article 551 of the Code of Comunidade, book called "Tombo 2" should be used for the description of the tributary lands of the Comunidade or those subject to any definite contribution. These are the title documents of the Comunidade. In the present case, the Appellant has not produced any such title document. Learned Advocate Shri I. Agha has further pointed out that under Article 208 of the Code of Communidade, Register No.1 has to be maintained, which contains the list of all the properties of Communidade which are shown in Table No.1 and description of the sources of other incomes not connected with private properties. He further pointed out that under Article 209 of the Code, elaboration and revision of the said Register no.1 is compulsory and map of different properties has to be made. The above documents are also not produced by the appellant. In his cross examination, the Attorney of the Appellant has stated that except the Matriz certificate, they do not have any other document regarding the property. He has, however, added that tombasao book is kept at the office of the Administrator of Comunidade at Margao and that the same is not legible, being very old and having become wet due to rains. The above statement made by Attorney of the Appellant is by way of an afterthought since in the pleadings of the Appellant, there is no whisper that the Tombo book is illegible or has become wet due to rains, etc. The appellant has not produced the copies of such old and wet records in order to show that they are illegible. Hence, adverse inference is bound to be drawn, against the appellant to the effect that they have no title documents and therefore they could not produce them.

16.Admittedly, the Matriz records cannot confer title. The Attorney of the Appellant has produced the certificate of Matriz no. 105 pertaining to the Comunidade property. According to AW.1, their property "Muyaortimol" is surveyed under no.56, entirely. But the boundaries of survey no.56 do not tally with those of Matriz no.105. For example, the western boundary of survey no. 56 is National Highway, but the western boundary of "Muyaortimol" bearing Matriz no.105 is the property "Dantregal" bearing Matriz no.115. There is no explanation from appellant as to why the boundaries of Matriz no.105 do not tally with those of survey holding no.56.

17.The appellant has not engaged any expert surveyor or a civil engineer to draw the plan based on Matriz certificate no.105 and the survey no.56 in order to show that the property bearing Matriz no.105 tallies with that of survey no. 56. There is no evidence produced by appellant to trace the present boundaries of survey no.56 to those mentioned in Matriz no.105. There is no evidence regarding change of boundaries or change of the nature of land on the boundaries, by passage of time, if any.

18.Learned Counsel Shri P. Talaulikar, on behalf of the appellant, argued that the name of Comunidade is recorded as occupant of survey holding no.56 and therefore, the presumption of correctness of the entries of occupancy (possession) under Section 105 of the Land Revenue Code, 1968 (L.R.Code, for short) is in favour of the appellant and unless the respondents no.1 and 2 show better title, the appellant is bound to succeed. Learned Counsel Mr. Talaulikar then tried to show from the records as to how the respondents no.1 and 2 have failed to prove better title.

19.Learned Advocate on behalf of the Appellant, argued that the Land Registration Certificates, Matriz Certificates, and Sale Deeds produced by the respondents no.1 and 2 do not mention survey numbers and that the said respondents have miserably failed to identify their property to be one surveyed under no. 56. He argued that the Civil Engineer, Mr. Kakule who has only drawn the plan of acquisition based on survey plan, has not shown as to how the boundaries in the documents tally with those of survey no. 56. He further showed that Mr. Kakule has stated that his surveyor was one Vaikunth Kamat, but said Vaikunth Kamat has not been examined. He contended that the Reference Court has merely considered the western boundary which is national highway and without seeing whether other three boundaries tally or not, has decided the matter in favour of the respondents no. 1 and 2. He argued that the findings of the trial Judge are not born out from the evidence of witnesses. He therefore, argued that the respondents no.1 and 2 could not prove any better title to the acquired land as against the survey record in favour of the appellant and therefore the impugned judgment and award is liable to be set aside.

20.First of all, what is produced on record by the Attorney of the appellant is only the index of land in form No.III pertaining to survey no.56 which shows the name of the appellant in bracket. It appears from the evidence that the appellant and other interested parties had filed appeals as a result of which the name of the appellant as occupant of survey no.56 has been restored. But admittedly, the appeal before the Administrative Tribunal is pending in respect of entry in the index of land under Form No.III. It was pointed out that the witness of the respondent no.1, namely Mahendra Kakule who is an civil engineer has stated in his cross examination that he has verified Form no. I and XIV of survey no.56 and that the names of Comunidade as well as that of Keni are recorded in the occupant's column. The above casual statement of Mr. Kakule cannot be taken as gospel truth since the dispute regarding the entry in the index of land is still pending before the Administrative Tribunal and it is nobody's case that the records are promulgated. It is not the case of the Appellant that the name of Keni still exists in the index of land as occupant. No Form No. I and XIV of survey no.56 is produced on record. No value, at all, can be given to the said casual statement of Shri Mahendra Kakule.

21.As argued by Shri Iftikar Agha, the learned counsel for the respondents no.1 and 2, the presumption under Section 105 of L.R.Code is available only in respect of the entry in the record of rights. The record of rights, as mentioned in Section 95 of L.R.Code, shall be maintained in the prescribed form. In terms of Rule 3 of the Goa, Daman and Diu Land Revenue (Record of Rights and Register of Cultivators) Rules, 1969, the said prescribed Form is Form No. I and not the Form No. III. Form No. III is only a draft of the index of land prepared under Rule 6 of the said rules of 1969, which is subject to correction and promulgation. Therefore, there can be no presumption regarding the correctness of the entry in the index of land in Form No. III. Admittedly, survey records do not confer title and mere production of Form No. III cannot prove occupation or possession.

22.Both the witnesses of the Appellant have stated that the property of Comunidade known as "Muyavortimolo" bearing Matriz no.105 is surveyed under no.56. However, since there is no documentary evidence like site plan proving that the property bearing Matriz no.105 corresponds with property bearing survey no.56 and further since there is no evidence of an expert who has done the exercise of comparing the documents of matriz and survey, the bare statement of the said witnesses is without any basis and cannot be relied upon.

23.Both the witnesses of the Appellant have stated that there are cashew trees and other forest trees and that crop is given to the local villagers who pay annual rent to the Comunidade. Comunidades are composed of "Jonoeiros" and "share holders" and part of the annual income is claimed by jonoeiros which is known as "jono" and part of it is claimed by the shareholders which is known as "dividend". There is a cashier working for each Comunidade who receives all the returns and makes payments. The items of incomes are auctioned periodically. Necessary documents pertaining to such auctions, income, expenditure, etc. are bound to be maintained by each Comunidade and under the Code of Comunidade, such documents are required to be maintained. Statements in air are made by both the witnesses of the Appellant. Not a single document regarding any act of possession has been brought on record. On the contrary, the witness Ram Krishna Fal Dessai has stated that Comunidade has not auctioned the cashew trees but has enjoyed the income. He has further stated that the said property has not been leased to any person but has further added that persons who are paying rents towards cashew fruits were not issued receipts. The above are irresponsible and baseless statements.

24.It cannot be said that the appellant has proved its title and possession in respect of the acquired land. The learned trial judge has rightly held that the appellant has failed to prove its title as well as possession in respect of the acquired land.

25.The respondent no.1 has produced the Sale Deed dated 3/8/1892 in respect of the property "Bullobeachy Fondy", the Land Registration document of the same property bearing no. 3452 and the Matriz certificate of no. 139. He has produced the Family tree and various documents to trace his relationship with the purchaser named in sale deed. The boundaries in all the three documents namely Sale Deed, Land Registration and Matriz, substantially tally. The oral evidence on record including the evidence of expert witness namely Mahendra Kakule read with the plan drawn by him show that the portion shown under letter "E" and "F" in the said plan is part and parcel of the said property "Bulbeachy Fondy", since it is bounded on the western side by National Highway and on the eastern side by the hill top known as "Dantreagalli Tembo". The southern boundary is shown as Cacha road after which lies the property "Utka Fonaro". The said boundaries tally with the boundaries mentioned in the documents produced by the respondent no. 1. survey no.56 (part) is bounded towards west by National Highway and towards south by "Utkafondaro".

26.The respondent no.2 has produced the sale deed dated 9.9.1988, by which 1/12th share of the said property "Bulobeachi Fondy" bearing Land registration no.4352 and Matriz no.139 has been purchased by him. The respondent no. 2 claims to have purchased some portion of the said portion admeasuring about 15,000 square metres from one of the co-owners. It is an admitted fact that the respondent no. 2 has a house, a bar and plantation which is adjacent to the National Highway and partly in survey no. 55/1. The cross-examination of the respondent no. 2 shows that the said property "Bulbeachi Fondy" is partly surveyed under no. 56. This sale deed mentions only the survey no.55. But the sale deed duly mentions the Land registration no.4352 and Matriz no. 139. In his evidence the respondent no.2 has explained that some portion of survey no.55 has been wrongly surveyed under no.56 and that the eastern side portion of survey no.56 is part and parcel of the property Bulbeachi fondi. The respondent no. 1 has no objection for taking into consideration the claim of the respondent no. 2. As there is no partition, the Reference Court has considered the case of respondent no.2 as one of the co-owners and having right to 1/12th share in the entire property.

27.Learned Advocate Shri I. Agha, on behalf of the respondents no 1 and 2, has relied upon the judgment of the learned single Judge of this High Court in Second Appeal No. 11 of 1994 (Silvestre Mascarenhas and ors. V/s. Smt. Shantu Locmu Fotto and Ors.) and also on the judgment of the learned Single Judge of this High Court in First Appeal No. 17 of 1990 (The Union of India and Ors. V/s. Vishnu Pai Kane and Ors.) wherein it has been held that in terms of Article 953 of the Portuguese Civil Code, the inscription in the registration of a title of conveyance without condition precedent, involves, irrespective of any other formality, the transfer of possession in favour of a person in whose favour such inscription has been done. The Land registration document therefore proves title as well as possession.

28.The respondents no.1 and 2 have therefore produced cogent evidence thereby establishing better title to the acquired land, as compared to the appellant.

29.The learned trial judge has properly assessed the entire evidence on record and has arrived at proper findings. Even if another view is possible, this Court cannot interfere with the impugned judgment. No interference is called for with the impugned judgment and award.

30.In the result, the appeal is dismissed, however with no order as to costs.

Appeal dismissed.