Shri Bhisso Ganesh Gaonkar and his wife and Smt. Saraswati Gaonkar, (Since deceased) vs State of Goa and Others

F.M. Reis, J.—Heard Shri Sudesh Usgaonkar, learned Counsel appearing for the Appellants, Ms. Linhares, learned Addl. Government Advocate appearing for the Respondent nos. 1, 25 and 26 and Shri S. D. Lotlikar, learned Senior Advocate appearing for the Respondent nos. 2 to 14. Respondent no. 2(i) has already been deleted. The above Appeal challenges the Judgment and Decree dated 07.03.2000 passed by the learned District Judge, South Goa, Margao, in Civil Suit no. 28/1985. The Appellants filed the suit claiming that they alongwith the Respondent nos. 15 to 24 (Defendant nos. 15 to 25) are the owners in possession of the property known as "Borod Kumeri" situated in Village Morpirla and registered in the Land Registration Office under no. 5792 and enrolled in the Taluka Revenue Officer under Matriz no. 153. It is further their case that the suit property consists of coconut trees, mango trees, jackfruit trees and other fruit bearing trees and that the Appellants alongwith the said Respondents used to cultivate different cereals therein. It is further their case that the Appellants on 10.01.1985, came to know that the Respondent nos. 1 and 2 had allotted the suit property to some of the residents of the neighbouring village besides the Respondent nos. 3 to 14 and 27 to 33. It is further their case that the said Respondent nos. 3 to 14 started interfering with the suit property though according to the Appellants they had no right to any portion therein. It is further their case that a notice came to be served on the Respondent no.1 on 12.01.1985 and, consequently, the suit was filed to claim that they are owners in possession along with the said Respondent nos. 15 to 24 of the suit property. A permanent injunction is also sought to restrain the said Respondent nos. 1 to 14 and 26 to 33 from interfering with the suit property.

Respondent nos. 1 and 2 have resisted the said suit by filing their written statement. The Respondent nos. 25 and 26 have also adopted the written statements of the said Respondents. The Respondent nos. 3 to 14 have also filed their written statement. It is the case of the Respondents that the property is owned by the Government and that several persons had encroached into the suit property and that the Government had regularized the said encroachment by allotting encroached specific portions of the suit property. It is further their case that they have been allotted several pieces of land in the property surveyed under no. 58, 65, 76 and 85. It is further their case that the Appellant no.1 had also encroached into a portion of the suit property in respect of the bharad land known as "Champiafondi" which also came to be regularised. It is further their case that the Appellants were aware about the allotment of the Respondents and, consequently, prayed that the suit be dismissed.

The learned Trial Court, by the impugned Judgment and Decree dated 07.03.2000, dismissed the suit filed by the Appellants. Learned Trial Court has come to the conclusion that the Appellants failed to prove that the suit property "Borod Kumeri" as described in para 1 of the plaint belonged to the Appellants and the said Respondents. Learned Judge further came to the conclusion that the Appellants failed to establish that the properties which have been allotted in favour of the said Respondents by the Respondent no.1 came within the suit property. The learned Judge also came to the conclusion that on the basis of the material on record, the Appellants are not entitled for any reliefs. The learned Judge on the basis of the material on record, further came to the conclusion that the Respondent nos. 3 to 14 and 27 onwards, who are in possession and enjoyment of the land identified in para 24 of their written statement as Government allottees. The learned Judge as such dismissed the suit filed by the Appellants.

Being aggrieved by the said Judgment and Decree, the Appellants have preferred the present Appeal.

Shri Sudesh Usgaonkar, learned Counsel appearing for the Appellants, has assailed the impugned Judgment on the ground that the property of the Appellants registered in the Land Registration Office under no. 5792, according to him, on the perusal of the boundaries mentioned therein, it clearly establishes that the properties which have been allotted in favour of the Respondents, form part and parcel of the property belonging to the Appellants. The learned Counsel has further pointed out that the Appellants have established on the basis of the material on record that the Appellants are owners in possession of the suit property and further that the Respondents have no right at all to any portion therein. Learned Counsel further pointed out that the eastern boundary of the property is that of one Mr. Correia, who owns the property which is surveyed under nos. 65 (part), 67, 68/2, 64/3 and 64/6. Learned Counsel further pointed out that the property which is surveyed under no. 66/3 as well as property surveyed under no. 70/5 stand in the name of the Appellants and, as such, considering that the eastern boundary of the property is the property of the said Correira, the dispute portion of the property surveyed under no. 65(part) forms part and parcel of the property belonging to the Appellants. Learned Counsel further pointed out that considering that there is no dispute that the property surveyed under no. 66/3 forms part and parcel of the suit property and taking note of the fact that the western boundary of the property is the hill and the western boundary of the property surveyed under no. 65 is a Valley which, according to him, is the base of the hill, the property is clearly identified by the expert examined by the Appellants as Pw.5. Learned Counsel further pointed out that considering the depiction made by the expert, Pw.5, it can be conclusively established that the suit portion of the property which has been allotted in favour of the Respondents, by the Respondent no.1, forms part and parcel of their property. Learned Counsel after taking me through the impugned Judgment, pointed out that the learned Judge has erroneously come to the conclusion that the property claimed by the Appellants has not been properly identified. Learned Counsel also disputes the correctness of the findings of the learned Judge to the effect that the Respondents have established their possession over the disputed portion of the suit property. Learned Counsel further pointed out that as per the Land Registration document, the southern boundary of the property is a Village of Cola and, as such, taking note of the boundary surveyed under no. 65 (part) is the village of Cola, it conclusively establishes that the disputed part of the property forms part and parcel of the suit property. Learned Counsel as such submits that the impugned Judgment deserves to be quashed and set aside.

On the other hand, Shri S. D. Lotlikar, learned Senior Counsel appearing on behalf of the Respondents, has joined issue with the contention of the learned Counsel appearing for the Appellants. Learned Senior Counsel further pointed out that as per the allotments made in favour of the said Respondents, southern boundary of the property is the Village of Khedem. Learned Senior Counsel further pointed out that the Land Registration document produced by the Appellants themselves shows that no part of the property of the Appellants is bounded by Village Khedem. Learned Senior Counsel has taken me through the Survey Plan produced by Pw.5 and pointed out that by the alleged depiction by the said Surveyor, the property of the Appellants appears to extend even to the area where Village Khedem is located on the southern side. Learned Senior Counsel has pointed out that even on perusal of the alleged registration document at exhibit P-1, the western boundary of the property claimed by the Appellants is a hill and not top of the hill and taking note of the pleadings of the Appellants to the effect that the western boundary is the top of the hill by itself discloses that the claim of the Appellants that the suit property extends to the western boundary of the property surveyed under no. 65/1, cannot be accepted. Learned Senior Counsel further points out that the Respondents are in possession of the disputed portion of land as per their allotment and, according to him, some of the Appellants have constructed houses and are in their occupation. Learned Senior Counsel has further taken me through the impugned Judgment and pointed out that the learned Judge on the basis of the material on record, has come to the conclusion that the Respondents are in possession of the property allotted to them and, as such, the question of permanent injunction as claimed by the Appellants cannot be granted. The learned Senior Counsel further pointed out that the property described in the pleadings did not disclose any survey number and, as such, the question of describing the property without any survey numbers is erroneous. Learned Senior Counsel further pointed out that the said Respondents are not claiming any portion of the property which is located towards the northern side of the boundary of Village Cola. Learned Senior Counsel as such submits that the Appeal deserves to be rejected.

Ms. Susan Linhares, learned Addl. Government Advocate appearing for the Respondent nos. 1, 25 and 26, has supported the impugned Judgment. Learned Counsel has pointed out that the property surveyed under no. 65, belongs to the Government and, according to her, the said property is part of the forest land and the Respondent no.1 has regularised the encroachments made by the Respondents over the portion of the suit property. Learned Counsel further pointed out that the southern boundary of the property claimed by the Government is bounded by the Village Khedem and taking into consideration that the boundaries as claimed by the Appellants itself disclose that the suit portion of the property cannot form part and parcel of the Appellants and, as such, considering that the Appellants have not sought for any restoration of possession, in any event, the question of granting any reliefs as prayed for in the suit does not arise. Learned Counsel as such submits that the Appeal be dismissed.

Having heard the learned Counsel and on perusal of the material on record, the following points for determination arises in the present Appeal :

POINT FOR DETERMINATION

Whether the Appellants have established that the disputed portion of the property allotted to the Respondents forms part and parcel of the suit property claimed by the Appellants ?

Whether the Appellants have been in the position to identify the suit property on the basis of the boundaries as disclosed in the land registration document and the survey plan in respect of the properties surveyed under survey nos. 58, 65, 76 and 85 ?

On perusal of the boundaries of the property described in the Land Registration Office under no. 5792, I find that the eastern boundary of the property is of one Correia. The said property surveyed under no. 66/3 which stands in the name of the Appellants also has on the eastern side the property of said Correia surveyed under no. 67 and on the lower side by the property surveyed under no. 64/1. The southern boundary of the property surveyed under no. 66/3 which stands in the name of the Appellants is in line with the southern boundary of the property surveyed under no. 67 and 64/6 belonging to the said Correia. It is the case of the Appellants that the southern portion of the property as per the Land Registration Document, goes beyond the southern boundary of the said portion of the property. On perusal of the Survey Plan, if one proceeds towards the southern side beyond the southern boundary of survey no. 66/3, the boundary would extend to the Village of Khedem. On perusal of the Land Registration Document, admittedly, the southern boundary of the property is not the village boundary of Village of Khedem but of Village Cola. The learned Senior Counsel appearing for the Respondent nos. 2 to 14, has pointed out that the portion of the property allotted to the said Respondents are bounded on the southern side by the Village of Khedem. Hence, it cannot be accepted that the property allotted to the Respondents can be considered to be part and parcel of the property belonging to the Appellants as registered in the Land Registration Office under no. 5792 as at exhibit P-1. On perusal of the Land Registration Document at exhibit P-1, I find that the western boundary of the property is a hill. It is well settled that when the boundary is shown to be the hill, it implies the base of the hill and not the top of the hill. As such, the question of claiming that the western boundary of the property surveyed under no. 65 which according to the Appellants is the western boundary of the property in the Land Registration Document, exhibit P-1, cannot be accepted. Pw.5, in his deposition, tried to explain that there was a Valley which slopes down through the western boundary of the property surveyed under no. 65. On perusal of the evidence of the said witness, it transpired that he has stated that the western boundary of the property runs in the middle of the Valley. Be that as it may, there is no cogent evidence on record to establish that the western boundary of the property surveyed under no. 65 as claimed by the Appellants is the base of the hill. Learned Trial Court has rightly come to the conclusion that the Appellants have failed to identify the suit property so as to enable the Court to ascertain as to whether the disputed portion forms part and parcel of the suit property claimed by the Appellants. These findings of the learned Judge cannot be faulted in law.

Apart from that, the learned Judge, on the perusal of the material on record, has come to the conclusion that the disputed portion of the land is in possession of the Respondents. It is not in dispute that much before the filing of the suit, the Respondent no.1 has regularised specific portion of the property in favour of the respective Respondents. In the present case, it is the case of the Respondents that pursuant to the said allotment, some of the Respondents even constructed their residential houses. There is no evidence on record to establish that the Appellants are in possession of the disputed portion. Taking note of the fact that the Appellants have prayed for permanent injunction without any consequential reliefs for restoration of possession, I find that the Respondents not being in possession of the disputed portion of land, the question of granting any permanent injunction as claimed by the Appellants, would not arise at all. The learned Judge has also rightly come to the conclusion that as the property has not been identified by the Appellants, the question of declaration as prayed for would not arise so also taking note of the fact that the Respondents are in possession of the property which has the southern boundary as Village Khedem and also taking note of the fact that the title document produced by the Appellants do not disclose that the southern boundary of their property is Village Khedem. As such, I find that the learned Judge has rightly appreciated the evidence on record and come to the conclusion that the Appellants have failed to prove their case and dismissed the suit of the Appellants.

Shri Usgaonkar, learned Counsel appearing for the Appellants, at this stage, has pointed out that on perusal of the Survey Records, part of the property surveyed under no. 65 is bounded by the Village of Cola and, according to him, atleast part of the declaration prayed for by the Appellants deserves to be granted. As noted above, there is no proper identification of such portion to consider the dispute to that extent nor have the Appellants pleaded nor led evidence with that regard to obtain a declaration of title. As such, the question of granting any such declaration on such vague and scratchy evidence would not arise. The points for determination are answered accordingly. Considering the facts and circumstances of the case, I find that there is no reason to interfere in the impugned Judgment. As such, the Appeal stands dismissed with no orders as to costs.