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Judgment
A. P. LAVANDE, J.—By this appeal the appellant takes exception to the judgment and award dated 07/03/2000 passed by the Additional District Judge, South Goa, Margao in Land Acquisition Case No. 183/1981. Briefly, the facts relevant for disposal of this appeal are as follows :
Plot No. 41 admeasuring 2791 square metres and plot No. 42 admeasuring 3191 square metres situated at Maina of Quepem Taluka were acquired by the Government of Goa for construction of Ambaulim-Maina Road. The Land Acquisition Officer passed the award dated 06/12/1976 and fixed the market rate of the acquired land at Rs. 3592/-. Since there was dispute as to the ownership of the acquired land, the same was not disbursed and reference u/s 30 of the Land Acquisition Act (''the Act'' for short) was made to the District Court at South Goa at Margao.
In Land Acquisition Case No. 183/1981, the appellant was the applicant and Sunderabai Vishwanath Sinai Sirvoikar was the respondent. The respondents in the appeal are the legal representatives of said Sunderabai Sirvoikar, who were brought on record during the pendency of reference before the District Court, South Goa, Margao. In support of the rival claims, the applicant examined AW1-Dattu Nilu Faldessai, who was the procurador of Communidade from 1982 to March 1989 and AW2-Datta Babu Velip. In support of their claim, the respondents examined five witnesses namely RW1-Rudraji Shirvoikar, RW2-Rajesh Shirvoikar, RW3-Siddha Lambor, RW4-Chandrakant Devidas and RW5-Gajanan Shirvoikar. Both the parties produced voluminous documents in support of their respective claims.
The Reference Court framed the following issues in the reference :
(i) Whether the applicants prove that the land acquired by the Government belongs and is in their possession as part of their property Attalevoril Molla identified in their written statement, they therefore being entitled to the entire amount of compensation awarded ?
(ii) Whether the respondent proves that the land acquired belongs and in possession of the respondent as part of their property Nigueteamola, identified in her written statement, she therefore being entitled to the entire amount of compensation awarded.
(iii) What order ?
The Reference Court held that the respondents were the owners in possession of the acquired property and consequently, the applicant was neither the owner nor in possession of the acquired property.
Mr. Agha, learned Counsel appearing for the appellant submitted that the findings recorded by the Reference Court are contrary to the evidence on record and the Reference Court has not appreciated the evidence led by the parties in correct perspective and has wrongly recorded the findings in favour of the respondents. Learned Counsel further submitted that RW1 Rudraji Shirvoikar has clearly admitted that the property bearing Survey No. 24/1 belongs to the Communidade and since plot No. 41 forms part of Survey No. 24/1, the Reference Court ought not to have awarded compensation in respect of Plot No. 41 in favour of the respondents. Learned Counsel further invited my attention to the fact that RW1 Rudraji Shirvoikar had clearly admitted that the property purchased in auction as per exhibit RW1/A is aforamento of the applicant Communidade and as such, the Reference Court has erred in awarding compensation in favour of the respondents. According to the learned Counsel, the documents produced by the respondents do not establish that the acquired land forms the part of the property claimed by the respondents. Learned Counsel further took me through the relevant evidence, oral and documentary, tendered by the parties and submitted that the Reference Court has erred in answering the reference in favour of the respondents.
Per contra, Mr. D''Costa, learned Senior Counsel appearing for the respondents submitted that the reference made by the Deputy Collector, South Goa, Margao in terms of letter dated 07/12/1976 discloses that the acquired plots were shown in the name of original respondent Smt. Sunderabai Vishwanath Sinai Sirvoikar and as such the presumption arises that she was in possession of the acquired land. Learned Senior Counsel further submitted that the acquired land was a part of property originally belonging to the applicant and was granted by way of aforamento to one Pandurang Nadkarni which was purchased in public auction by Rudraji Sinai Shirvoikar, the predecessor-in-title of the original respondent in auction conducted on 14/10/1898. Mr. D''Costa further submitted that once the land is granted by way of aforamento by the Communidade, the title no more vests in the Communidade and at the most, it can claim foro from grantee. Learned Counsel further submitted that in the written statement filed by the applicant, the claim is made in respect of an area admeasuring 2791 square metres which actually is an area of plot No. 42. Learned Counsel, therefore, submitted that even in written statement, the applicant did not specifically claim any compensation in respect of plot No. 41. Learned Counsel, therefore, submitted that one plot forms part of the property ''Nigueteamola'' which is surveyed in record of rights under Survey No. 1/3 in favour of the respondents and the other plot forms part of the property ''Culneavoli'' also known as ''Matamola'' which is surveyed in record of rights under Survey No. 24/1 in the name of the original respondent, Uttam Gaonkar and Soiru V. Bhende, though the respondents are the exclusive owners and possessors of the said property. Learned Counsel further submitted that both these properties were in possession of the respondents for more than 45 years at the time of filing of the written statement by original respondent. Learned Counsel further submitted that at the time of publication of notification under Sections 4 and 6 of the Act both these plots were shown in the name of the mother of respondent No. 1 and as such, the respondents are entitled to entire compensation in respect of the plots. Mr. D''Costa further submitted that in any case, the respondents have proved that they were in settled possession of the acquired plots at the time of acquisition and for a considerable length of period prior to the acquisition and as such, even if it is held that the respondents have not proved title to the acquired plots, the respondents are entitled to the entire compensation on the basis of the settled and peaceful possession of the acquired plots. In support of his submissions, Mr. D''Costa placed reliance upon the judgment in the case of Chief Conservator of Forests, Govt. of A. P. Vs. Collector and others; (2003)3 SC 472 and unreported judgment of Division Bench of this Court dated 18/10/2005 in F.A. No. 160/2002 in F.A. No. 160/2002 (Jacinto Minguel De Quardros Barretto and 10 others Vs. Haridas Kamat and two others).
I have carefully considered the rival submissions, perused the record and the judgments relied upon by Mr. D''Costa, learned Senior Counsel appearing on behalf of respondents No. 2(a)(i) to (vi), 2b, 3(a) to (c).
In view of the rival submissions, the following points arise for determination in the appeal :
(i) Whether the Reference Court was legally justified in awarding entire compensation in respect of the acquired plots in favour of the respondents ?
(ii) Whether the finding recorded by the Reference Court that the respondents have proved title and possession in respect of the acquired plots and that the applicant has not proved the ownership and possession of the acquired plots, is legally justified ?
I shall now deal with the evidence led by the parties before the Reference Court.
AW1-Dattu Nillu Fall Dessai deposed that the road from Ambaulim to Pirla was of the width of about 21/2 metres and the same was widened by the Government by about 11/2 metres on either side for which the land was acquired. According to AW1, the acquired land is 500 metres in length on either side of the road and it falls partly in the property Attalevoril Mol and partly in Andolleagottan of the Communidade. These two properties are registered in matriz record in the name of Camra Agraria Provincia de Balli and surveyed under Survey No. 24/1. He further deposed that the acquired land has been falsely surveyed in the name of Sirvoikar, Gaonkar and Bhende and that previous procurador namely Rama Krishna Fal Dessai had filed objection for wrong entries in the year 1981. He further stated that the name of the applicant was also recorded in the survey holding. He further deposed that there were forest trees like Matti, Kindal, etc in the acquired land and licences were given for cutting such trees. He further deposed that the applicant used to give permission to do bharad and kumeri cultivation, based upon Calculo (estimate), for three years at a time. He further deposed that the property ''Neguteamola'' of the respondents was bounded on one side by ''Andolleagotton'' but it was at a distance of about 75 metres from the acquired land and it was given to Nadkarni by the applicant from whom it came to Shirvoikar. The property ''Attalevoril Mol'' bore matriz No. 59 and Property Andolleagotton bore matriz No. 61. He produced the matriz certificate exhibit AW1/A; the blue print of Survey No. 24 as exhibit AW1/B, Form No. III of survey No. 24 as exhibit AW1/C; certificate of Communidade in respect of Nigueteamola as exhibit AW1/D; copies of licences as exhibit AW1/E and exhibit AW1/F and the Calcula as exhibit AW1/G. He further stated that Shri Vasant Velip had his house in Survey No. 25 and coconut and cashew trees of said Vasant were in Survey No. 25 belonging to the Communidade. AW1 claimed that this acquired land lay in Survey No. 24 only, and in the occupants column the name of the applicants, Shirvokar and Bhende appeared. He did not depose that the acquired land of their property lay in Survey No. 1/3. In cross-examination, he deposed that in Survey No. 24/1 there were about one or two houses where cow-heards stayed. He further stated that cashew trees were planted by Velips, who enjoyed them but nothing was given in writing to Velips for planting and enjoying the trees. He further stated that in Survey No. 24/1 Shirvoikar had cultivated sugarcane but added that this was done forcibly. He further stated that the applicant had filed complaints in writing against the respondents for having done cultivation of sugarcane in Survey No. 24/1 forcibly. However, no complaints had been produced on record.
AW2-Datta Babu Velip deposed that property Attalevorilmol belonged to the Communidade of Balli and also property known as Aundemolla which was adjacent to the property Attalevorlimol. There was a road which was proceeding from Kavrem to Pirla and this road was passing through the property Attalevorlimol. The width of road was 2.5 metres. He further deposed that the road was widened on both sides by 1.5 metres, the present breadth of the road at the time of his deposition was 5.5 metres and this widening was done about 10 to 15 years ago. Before the road was widened, in the said portion there were different types of trees such as Marti trees, Kindal trees etc. He further deposed that he knew Dr. Shirvoikar from Quepem because they used to go to him for consultations. Dr. Shirvoikar had property at Maina, Quepem which lay after the Government High School, Maina, Quepem. He did not know the boundaries of property of Dr. Shirvoikar, but one of the boundaries of the property of Shirvoikar was the river which was on the east of the property of Shirvoikar and such property was at a distance of 100 metres from the road. In cross-examination, he stated that he did not know the boundaries of the property Attalevorlimol and Aundamol nor he knew the length and breadth of the said properties. He never worked in the said properties. He further deposed that there was a Government High School on the left side of the road as one proceeds towards Pirla from Kavrem which was at a distance of 20 to 30 metres from the road. He further deposed that he did not know who was the owner of the land which was situated in between said Government High School and the road. The said Government High School was in existence for about 20 years. He also did not know whether the said Government High School was falling in the property of said Shirvoikar. He admitted that the Government school was situated opposite the road proceeding from Kavrem to Pirla. He denied the suggestion that the road passed through the property ''Niguetemola'' and ''Marteamol''. He denied the suggestion that the property Attalevorlimol or Aundamol did not touch the road which was widened. He stated that there was no sugarcane plantation in between the said road and boundary of the property of Shirvoikar at river point. Thereafter he corrected himself saying that there was sugarcane plantation and stated that he did not know who was cultivating the said sugarcane plantation in the said portion. He admitted that there were houses of shepherds on the north side of the property of Sirvoikar and he did not know who had allowed them in the said property. The witness voluntarily stated that the houses of said shepherds were situated at Aundamol. He denied the suggestion that the houses of shepherds were situated in the property of Shirvoikar. He denied the suggestion that Communidade of Balli did not have any right to the land acquired by the Government nor he knew as to who was the owner of the land acquired by the Government.
RW1-Rudraji Shirvoikar was examined and cross-examined for quite sometime. But thereafter, he could not attend the Court because he was suffering from cancer. He deposed that he owned the property known as ''Niguetamola'' or ''Motamol'' which was purchased by his grandfather in Court auction held on 14/10/1898. He stated that the said property bore matriz nos.52 and 53 of Village Maina and gave boundaries of both the properties. He further deposed that Niguetemol bore mariz No. 52 and was bounded towards east by property Borcem of Nadkarnies, on the west by Motamol belonging to him, on the north by rocky land and on the south by property Culna of Peru Gaunkar. He further deposed that Motamola bore matriz No. 53 and was bounded towards east by Niguteamol belonging to him, towards west by property Gogkan of Padiyar, on the north by property Ambea of Zulp Gaunekar and on the south by the property Arjuna Mol of Carlos Fernandes and Andoleagotton of Communidade de Provincia de Bali. He produced the auction certificate exhibit RW1/A and the matriz certificates exhibit RW1/B, and exhibit RW1/C. He further deposed that in the property Niguteamol, there was sugarcane plantation and that part of the said property had been sold by him to Manguesh V. Sinai Bendo. He produced the sale deed at exhibit RW1/H. He further deposed that sugarcane cultivation was done by Chandrakant Mainekar, Bombai Malmolkar and Fondu Gaunkar, as lessees. He produced the deed of lease dated 26/10/1974 at exhibit RW1/F. He further deposed that two portions of the said property Niguteamola lying on the northernn side had been gifted to Government Primary School and other to Siddi Vinayak Society. He further stated that property gifted to school admeasures 1931 square metres. He produced the certificate issued by Assistant Director of Education exhibit RW1/I which showed that land from survey No. 1/3 by name Niguteamola was donated by him for construction of school. He further stated that his properties Niguteamola and Mota mola were surveyed under nos. 1/3 (northern part) and 24 (southern part). He produced the promulgated survey form No. I and XIV of survey No. 1/3 which showed the names of RW1 and other Shirvoikars. The name of the applicants did not figure in this survey record. He further stated that on 25/01/1989 Government acquired an area of 2400 square metres of the said property for establishing sub-health centre at Maina and that compensation was paid to them. He produced the notice u/s 12(2) of the Land Acquisition Act which is at exhibit RW1/E. This notice clearly showed that an area of 2400 square metres of land from survey No. 1/3 was acquired and apportionment of the compensation was done in the name of RW1. He further produced the order of the Dy. Collector in case No. LRC/PART/30/91/7927 filed by Headmistress, Government High School against the respondents and Siddi Vinayak S.D.Y.S. Ltd. for separation/ partition of survey No. 1/3. By that order in exhibit RW1/G series, an area of 1931 square metres had been separated and given survey No. 1/3-A in the name of Educaion Department, Government of Goa. He also produced the order of the Dy. Collector in the case No. LRC/PART/45/92/759 filed by the Chairman Siddi Vinayak S.D.V. Sansthan Ltd. against the respondents for partition of their area of 178 square metres and by that order in exhibit RW1/G series the said area had been separated from survey No. 1/3 and given new number 1/3-B.
He further stated that in the property Nigueteamol there were cashew trees and other forest trees such as matti, kindal, etc. and that the cashew trees were enjoyed by him. He further stated that in the property Motamol, there were cashew trees, forest trees like matti, kindal, etc., one coconut tree, one jackfruit tree and banana tree and also there were two houses one in occupation of Siddu Lambor and the other in occupation of his daughter Bhaguem. He further stated that attached to the house of Siddu there was cowshed and Siddu being a milkman by profession had cows and buffalows. He further stated that Siddu was cultivating Nachini and Pakol in half acre of the said property Motamol and that it was he who allowed Siddu to stay in the portion of that property in the year 1974. He further stated that the road lying in his properties runs from west-east direction and the same had been extended for which portions of his properties were acquired. He further stated that the northern part of his properties had survey No. 1/3 while the southern part bore survey No. 24. He further stated that in survey No. 24 besides his portion of the properties, there were portions of property of Communidade and Carlos Ansosecao Fernandes. He produced the sketch of his property which subsequently came to be marked as exhibit RW5/A. He further stated that he was entitled for entire compensation.
He further deposed that the lease deed exhibit RW1/F was made in respect of Niguteamol in respect of an area of 40,000/-square metres and in this leased area which lay in survey No. 24/1, there was sugarcane cultivation done by the lessee Chandrakant Moyenkar. The existence of such sugarcane cultivation in survey No. 24 was admitted by AW1. The respondents had examined the milkman Shri Siddhu Lambor as well as lessee Shri Chandrakant.
RW2-Rajesh Shirvoikar deposed that they had a property at Maina bearing matriz nos.52 and 53 and that matriz No. 52 was Niguteamol and matriz No. 53 was Motamol and that his great-grandfather Rudraji Pandurang Shirvoikar purchased this property in court auction and since then their ancestors and now they were enjoying them. He further stated about trees, houses of Siddu Lambor and his daughter, government primary School for which land was donated by them, the Siddi Vinayak Society for which also land was donated by them and lease of Chandrakant Mainekar. He gave the boundaries of Nigueteamol and Motamol and stated that northern part of their property bore survey No. 1/3 and southern part bore survey No. 24. He confirmed that previously some portion was acquired from survey No. 1/3 by Government and entire compensation was paid to them. He stated that present acquisition was regarding road passing through their property which was bisecting their property. He further confirmed about all the documents produced by RW1. In cross-examination, he stated that he was residing in Andheri for last 38 years and he was doing the business of training surgeons to use the equipments for last six years. He stated that the Shrikant Shirvoikar was his cousin. He admitted that document at exhibit RW1/A pertained to the auction of the property Niguteamola. He did not know whether the property originally belonged to Communidade de Provincia of Balli. He stated that he knew that it was belonging to Nadkarni. He admitted that deed of lease exhibit RW1/F was in respect of the portion of Niguteamol and documents at exhibits RW1/G, RW1/H, and RW1/I all pertained to Niguteamol. The witness was shown exhibit AW1/D and asked whether the property Niguteamol was the same property purchased by Shirvoikar in auction with Nadkarni. He stated that he did not know Voikunt Santu Sinai Narcornim and Voikund Sinai Narcornim of exhibit RW1/A was one and the same person. He stated that he had visited the said property last in 1999 and for the first time about 3 years back. He further deposed that he did not know whether there was any property by name Culna Voli on the southern side of Niguteamol. He stated that they had not purchased Niguteamol from Communidade de Provincia de Balli. Culna of Gaonkar was a paddy field and he did not know its survey number. He further deposed that he did not know which were the other properties included in the Survey No. 24 or that he did not know whether entire survey No. 24 belonged to them. There was no demarcating marks between the property Motamol and Niguteamol. Rudraji Shirvoikar RW1 was looking after the properties Motamol and Niguteamol and no other person from their family was looking after the said property. He candidly admitted that he had not seen any coconut trees or cashew trees being planted in the property or even nachni being cultivated in the said property. He stated that he did not know any document to show compensation in respect of previous acquisition from survey No. 1/3 was paid to their family, except the notice exhibit RW1/E.
RW3-Shri Sidda Lambor deposed that he resides in the property of Shirvoikar situated at Maina, by name Motamol, in which there were cashew trees, one or two jackfruit trees, banana plantations and one coconut tree. He further stated that there was another house in this property belonging to his daughter. He further stated that he had cattle heads and was doing the business of milk and, during rainy season he cultivated vegetables like bhendi, cucumber, etc. He further stated that he also cultivated nachini. He further deposed that there was road going through this property which went to village Maina and that except Dr. Shirvoikar, nobody had enjoyed this property. In cross-examination he stated that he had not seen the document of the property Motamol. He further deposed that whether the property belonged to Shirvoikar or Communidade he did not know but he was kept by Shirvoikar, but added that 2 -3 persons of the Communidade used to come in the said property, see and go, but they were not taking anything from it. He further stated that he had not given tender coconuts or coconuts to the Communidade people. He added that the said persons were saying that Communidade was the owner of the said property and were asking him as to who kept him. He further stated that the coconut trees were planted by him about 5 to 6 years back and cashew plants were planted by him about 7 to 8 years back. He maintained that Dr. Shirvoikar was his landlord and he used to go to him for treatment and never paid fees. He further deposed that there was rocky land between river and school. The rocks were on the side on which sun sets and the river was on the side on which the sun rises. He further deposed that he did not know as to who was enjoying the property Arjunamol. The said river was towards south-eastern side of the property. He denied that he was tutored by RW2 and he deposed falsely .
RW4-Chandrakant Devidas deposed that he had taken land of Dr. Rudraji Shirvoikar on lease for sugarcane cultivation since last about 26 years and he along with Fondu Gaonkar and Bombo Shankar Gaonkar were the lessees cultivating sugarcane. He further stated that they cultivated in an area of about 6 acres. He identified his signature on the lease agreement exhibit RW1/F. He gave the boundaries of Niguteamol saying that his leased portion lay in the property and had confirmed that the house of Govli by name Sidda lay in Motamol belonging to Dr. R. Shirvoikar. It had been suggested to RW4 that the land wherein they cultivate sugarcane, did not belong to Shirvoikar.
In cross-examination, he deposed that his house was at the distance of 500 metres from the sugarcane cultivation towards south. He did not know the name of the property of Gaonkar in which his house was situated. He further deposed that in Borcem there was sugarcane cultivation. He further deposed that there was some land belonging to Nadkarni in between road and his sugarcane cultivation but no part of the land which was under lease was acquired by the Government. Property Borcem of Nadkarni touches his sugarcane cultivation on the eastern side and major portion of the property Borcem fell on the left hand side of the road Quepem to Pirla and only small portion fell on the right hand side.
RW5-Gajanan Shirvoikar deposed that he was working in technical section in Municipality and he was retired. Prior to that he was working as surveyor. He claimed that he was handed over the plan of land survey and the certificate public auction by RW1 for the purpose of identification and demarcation of his property at loco. He went to the site and drew the plan of the property of RW1-Rudraji Shirvoikar. He was shown the plan marked ''X'' for identification. He stated that this was the same survey plan of the land survey department on which the he drew red lining showing the property of RW1. The plan was marked as RW5/A. He further deposed that towards north of the property of RW1, there were jungle trees and paddy field, towards west there were jungle (firewood trees), towards south sugarcane plantation and towards east paddy field and firewood trees. Towards the west of the property, there was property of Communidade. He stated that on the west he had drawn a line from the point of road towards the southern side and that line was the base of the hill which was towards west. He further deposed that the property towards east belonged to Nadkarni and that towards north belonged to Zulpo Gaonkar. He claimed that when he visited the place, there was rubble stones in the form of a wall on the northern side. He claimed that although as per document the property towards north was of Julpo Gaunkar but at loco it was enjoyed by Padiyar. He further deposed that about 8 days back, he had visited the property and he saw laterite stone wall in place of rubble stone wall. There was a river on the south partly and the remaining portion was covered by sugarcane. On the south there was property Culnavoli of Gaonkar as per the document. He further stated that in the property of RW1, there were two Government buildings, some huts of people from Gowli community and also sugarcane plantation. The total area of the property of RW1 was 2,59,525 square metres.
In cross-examination, he stated that he had not drawn the said plan, but he had only shown the land of RW1 on the survey plan by drawing red lines and this was done on the basis of possession of RW1. He maintained that he was not related to RW1 and further claimed that he had not seen any document of title for drawing of plan. He further admitted that the plan on which he drew red lining was a blue print and was not certified copy of the official plan. He admitted that in the documents of aforamento granted by Communidade, length and breadth of the land was mentioned and the name of the person to whom aforamento was granted, was also mentioned. He further stated that plan exhibit RW5/A was handed over to him by RW1 in or about 1975. He denied the suggestion that plan RW5/A under red lining does not have any connection to property Niguteamol or Motamol.
Upon perusal of the written statements filed by both the parties, what emerges is that in the written statement filed by the applicant, it has claimed ownership only of 2791 square metres which in fact is plot No. 41 only and the respondents have also made claim to plot No. 42. However, since the reference is made in respect of both the plots, this Court has to find out as to whether either of the parties has proved title to the acquired land and if not, whether either of the parties has proved possession in respect of the acquired land.
The applicant has not produced Tombo to prove its title to the acquired land. The Reference Court has held that matriz certificate does not confer title. Moreover, AW1 has admitted that in Survey No. 24/1 Shirvoikar has cultivated the sugarcane and stated that this was done forcibly. Lincences at exhibit AW1/E and AW1/F do not mention that the property Audoliagotona or Andolleagoton and certificate of auction exhibit AW1/G also does not mention the property. However, these documents by themselves do not prove that Survey No. 24/1 and 1/3 form part of these properties. AW1 has not produced any plan drawn by expert showing the boundaries mentioned in the documents and verifying them at loco. AW2 deposed that he did not even know the boundaries and the area of the properties Attalevorilmol and Aundomolla. Thus, the evidence led by the applicant/ appellant neither proves title nor possession in respect of the acquired land. Insofar as the oral evidence led by the respondents is concerned to which reference is made hereinabove and documentary evidence by way of matriz certificate exhibit RW1/G, Form No. I and XIV-RW1/D, notice u/s 12(2) of the L. A. Act exhibit RW1/E and order of Deputy Collector RW1/G prove that the respondents are in possession of the property bearing Survey No. 1/3. It is pertinent to note that a suggestion was put to RW4 Chandrakant Devidas that the land wherein they cultivated sugarcane did not belong to Shirvoikar. It is the case of RW4 that he along with Fondu Gaonkar, Bombo Gaonkar were granted lease by Dr. Rudraji Shirvoikar for cultivating sugarcane at the rate of Rs. 400/-per year and the same was continued. AW1-Dattu Faldessai has admitted existence of sugarcane cultivation in Survey No. 24/1. Admittedly, the appellant/ applicant has not taken any action for carrying out sugarcane cultivation in the said property, the ownership of which is claimed by it. Moreover, The matriz certificates exhibits RW1/B & C showed that RW1 had given correct boundaries. The property ''Andoleagotton'' bearing matriz No. 61 of the applicants mentions the northern boundary as Motamola bearing matriz No. 53. The matriz certificate exhibit RW1/C, of matriz No. 60 (property Arjuna Molla, showed that it was bounded towards east by Andoleagotton of Communidade of Bali and towards west by Attalevoril Mola of Communidade of Province of Bali and towards north by Motamola of RW1. Thus in between Andoleagotton and Attalevoril Mola of the applicant there lay the property Arjunamolla of Carlos Fernandes. Hence, the said two properties of applicant were not adjacent to one another. Thus, the evidence of all the above referred witnesses clearly proves the possession of the respondents insofar as Survey No. 24/1 is concerned. There is absolutely no evidence led by the applicant to prove its possession in respect of the acquired property bearing Survey No. 1/3, but the evidence led by the respondents proves their possession of the acquired property bearing Survey No. 1/3.
No doubt, the Reference Court has recorded a finding that the respondents have proved their title to the acquired land. In my view, the entire evidence led by the respondents is not sufficient to hold that the respondents have proved their title to the acquired land bearing Survey No. 1/3 and 24/1. However, the oral and documentary evidence led by the respondents, more particularly the revenue records, which are in favour of the respondents, clearly proves that the respondents were in possession of the entire acquired land at the time of acquisition.
Thus, the finding recorded by the Reference Court that the respondents have proved that they were in possession of the acquired land is borne out from the evidence on record. However, the finding recorded by the Reference Court regarding the ownership of the acquired land is unsustainable in law, having regard to the documentary evidence led by the respondents.
Mr. D''Costa, learned Senior Counsel appearing for the respondents has rightly placed reliance upon the judgment of the Supreme Court in the case of Chief Conservator of Forests and judgment of the Division Bench of this Court in the case of Jacinto Minguel De Quadros Barretto (supra). In the case of Chief Conservator of Forests (supra), the Apex Court, placing reliance upon Section 110 of the Evidence Act, has held that there is presumption that the person in possession of the property is the owner and the burden to rebut the presumption lies on the person who denies such ownership.
In the case of Jacinto Minguel De Quadros Barretto (supra), while dealing with the case u/s 30 of the L. A. Act, the Division Bench has held that the respondents were entitled to compensation since they were in settled, continuous and peaceful possession of the acquired property for a considerable length of time. In my considered view, the ratio of the both these judgments is applicable in the present case.
In view of the above, I am of the considered opinion that the respondents are entitled to the entire compensation awarded in respect of the acquired land since they were in possession of the acquired land at the time of acquisition. However, the finding of the Reference Court that the respondents were the owners of the acquired land deserves to be set aside and is hereby set aside. In the result, therefore, the respondents are held entitled to the entire compensation in respect of the acquired land. Consequently, the appeal is dismissed. Parties to bear their own costs.