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Judgment
1 The challenge in this appeal is to the judgment and award dated 15/1/2002 passed by the learned Additional District Judge, Panaji in Land
Acquisition Case no.9/1991. By the impugned judgment, the learned District Judge has directed payment of the entire compensation in respect of land
acquisition to be paid to the respondent, in a reference under section 30 of the Land Acquisition Act 1894 (Act, for short).
The brief facts necessary for the disposal of the appeal may be stated thus: That land admeasuring 12800 sq.mtrs from out of survey no.89/2
(totally admeasuring 14,440 sq.mtrs.) of village Chorao, Taluka Tiswadi was acquired for a Village Panchayat playground (hereinafter referred to
as the the suit land). The Notification under section 4 (1) of the Act, was published in the Official Gazette on 9/3/1989. The learned Land Acquisition
Officer (LAO) by Award dated 5/7/1990 determined the compensation of Rs.2,85,629/- towards the acquired land. At the time when the notification
under section 4(1) of the Act was published, the appellant Comunidade of Chorao (the respondent before the reference Court) was alone shown as
the interested party. However on publication of the Notification under section 6 of the Act, the respondent Leiticia D'Souza (the original applicant
before the reference Court) filed an application on 12/4/1990 before the Land Acquisition Officer claiming that the land belongs to her late father
Domingos Francisco D'Souza and not to the appellant. Since the Form No. I and XIVÂ of survey no.89/2 showed the name of the appellant as the
occupant, notices under section 9 of the Act were issued to both the appellant as well as the respondent. Neither the appellant nor the respondent filed
any reply before the Land Acquisition Officer. The Land Acquisition Officer eventually made a reference of the dispute as to apportionment under
section 30 of the Act to the learned Additional District Judge which came to be registered as Land Acquisition Case no.9/1991.
The respondent filed a claim stating that the suit land was originally belonging to the appellant and the said land was granted as 'Aforamento', to
late Domingos, who expired somewhere in the year 1935. At the time when reference was made, according to the respondent, herself and oneÂ
Bernard D'Souza, (who is the son of the brother of the respondent), were the only surviving heirs and the legal representatives of late Domingos.
It was contended that the land was granted on Aforamento basis to late Domingos by order of the Government dated 20/6/1906 and the
definitive possession was handed over on 14/1/1908 under Article 301 of the Code of Comunidades 1904 (Old Code, for short). It was contended
that subsequently on payment of foro of 20 years, the respondent has acquired absolute right and title to the said land entitling her to receive the entire
compensation.
The appellant resisted the claim. It was however not disputed that the suit land was granted on 'Aforamento' basis to late Domingos, somewhere
in the year 1906 and as per the terms and conditions of the said grant, late Domingos was required to pay the foro to the Communidade and was
required to put the said land to use for the purpose for which it was allotted. According to the appellant, late Domingos abandoned the property and
had not put it to use for which it was allotted, within the time as required, nor got the time extended and even did not pay the foro. It was thus
contented that for all these years, the land continued to be in possession and enjoyment of the appellant. It was contended that only upon the
issuance of the Notification under section 4 of the Act that the respondent in collusion with the then Committee of the Comunidade or by
misrepresentation made certain payments which are contrary to law. It was contended that the payment of foro for 20 years could not have been
accepted by the 'Escrivao', without the consent of the President and the Treasurer and as such, the payment being ineffective would not have the
effect of reviving the original grant made to late Domingos. The appellant also denied that the respondent was the heir of late Domingos.
On the basis of the rival pleadings, the learned District Judge framed a solitary issue as to whether the respondent proves that she is the owner of
the suit property and therefore is entitled to full compensation.
The parties led oral and documentary evidence in which the respondent examined herself (AW.1)  along with Mr. Diogo Falcao (AW.2),
Luis C. Viegas (AW3). The appellant examined Policarpo Cipriano Souza (RW.1) being the attorney of the appellant.
The learned District Judge found that RW.1 had admitted that the respondent or her ancestors have been paying foro to the appellant from the year
1908 till 1969Â and he further admitted that the respondent had paid foro from 1969 to 1984 and the remission of foro was done in the year 1984 and
a certificate was accordingly issued to the respondent. The learned District Judge further noticed that there were two receipts Exhibit 15 and Exhibit
16 produced on record which would establish the payment of foro and the foro equal to 20 annual installments (remisscao de foros no.728) has been
credited in the coffers of the appellant as per the certificate Exhibit 14. The learned District Judge also found that as per the certificate Exhibit 13 late
Domingos had made paddy cultivation in the said land. The learned District Judge thereafter noticed the provisions of the Code of Communidade
1961 (New Code for short) and has found that the land can be reverted only during the period when it is provisionally handed over to the allottee
and in the present case there was no such reversion. It was found that the appellant had failed to show any provision of automatic reversion. In so far
as the contents of Form No. I and XIV are concerned (which shows the name of the appellant as the occupant), the learned District Judge found that
it can only raise a presumption of correctness which is rebuttable and in the opinion of the learned District Judge the respondent has successfully
rebutted the presumption. In that view of the matter, the solitary issue came to be answered in the affirmative and the entire amount of the
compensation has been directed to be paid to the respondent. Feeling aggrieved, the appellant is before this Court.
I have heard Shri Desai, the learned Senior Counsel for the appellant and Shri Usgaonkar, the learned Senior Counsel for the respondent. With the
assistance of the learned counsel for the parties, I have gone through the record and the impugned judgment.
Shri Desai, the learned Senior Counsel for the appellant has raised thefollowing contentions:
(i) That at the time when the suit land was allotted to late Domingos, the Code of Comundiade 1904 (the Old Code )Â was in operation. It is
contended that Article 1904 of the Old Code postulates that an aforamento can be given during the life time of the allottee and is a personal grant
which is not heritable. It is thus contended that upon the death of late Domingos the suit land stood reverted to the appellant.
(ii) It is submitted that for the first time after a gapof nearly 50 years from the of death of Domingos the respondent paid an amount of Rs.106/- as
foro from the year 1969 to 1984 by way of remission. It is submitted that the said amount was paid on 14/5/1984 under the provisions of the new
Code. It is contended that the provisions as to remission as contained in the 1961 of the Code do not apply to the case in hand as the remission was
not done in terms of Article 255, 256 and 257 of the new Code. It is submitted that there is a fundamental error in the impugned judgment which
applies the new Code, when the Afaramento was granted under the old Code.
(iii) It is submitted that the Village Panchayat Chorao resolved to acquire the land for a playground on 24/7/1987 and the respondent laid her claim to
the compensation for the first time before the LAO on 12/4/1990. That the survey of village Chorao was promulgated in the year 1972 and Form No. I
and XIV of the suit land showed the appellant as the sole occupant.
(iv)Â It is contended that the affidavit by Jose Noronha the attorney of the appellant before the Revenue Authority giving no objection to delete the
name of the appellant from the occupant's column and to enter the name of Domingos or his heirs is by way of misuse and abuse of powers vested in
the Attorney under Article 74 of the New Code. It is next contended that the certificate dated 21/9/1990 issued by Jose Noronha is also by way of
an abuse of the powers and authority, for which an action was taken against him.
(v) It is contended that the respondent and BernardD'Souza had filed Special Civil Suit No.171/91/A before the Civil Court for a declaration that
they are entitled to entire compensation and the said suit was also filed in collusion with Jose Noronha. It is submitted that the suit was not
maintainable inasmuch as an identical issue involving the dispute as to apportionment of compensation was pending before the competent Court.
(vi) It is submitted that the written statement filedby Jose Noronha on behalf of the appellant in the said suit is again in gross abuse of the authority
vested in the attorney.
(vii) That the conduct of the attorney does not fallwithin the parameters of Article 74 of the Old Code. The receipts produced by the respondent
are not proved since Escrivao of the appellant has not been examined. It is also contended that the Escrivao has no authority or power to receive
cash on behalf of the appellant and the receipts have not been issued by the treasurer in terms of Article 100 of the Old Code.
(vii) The original grantee died in the year 1935 andas such was not available for personal compliance or to fulfill conditions that are required to be
fulfilled in terms of the original grant during the period 1969 to 1984 and therefore the payment effected by the respondent in collusion with the
attorney of the comundiade is illegal and cannot be considered as valid.
(viii) It is submitted that even assuming that the1961 Code (New Code) is applicable, still the remission made in the year 1984 was illegal and void
ab-initio as it was not done in the terms of the procedure prescribed under Articles 248 and 262 of the 1961 Code.
(ix) It is submitted that the learned District Judgewas in error in holding that the respondent and her brother's son namely Bernard D'Souza were the
owners of the suit property, in the absence of any title document and when it was an admitted position that the appellant was the owner and the land
was granted on afaramento basis to late Domingos. It is submitted that the receipts as to the payment of the 20 times foro in the year 1984 cannot be
construed as title documents.
x) It is submitted that in terms of the provisions ofthe New Code, the appellant has established that upon death of Domingos there was no continuation
of the lease in terms of Article 301 of the Code and consequently the lease had lapsed and the suit land stood reverted in favour of the appellant
in terms of Article 302 of the New Code.
(xi) It is submitted that the evidence of the respondent and the two witnesses does not inspire confidence and the evidence is not credit worthy. The
appellant has been shown to be the sole occupant in Form No.I and XIV and the presumption available under section 105 of the Goa Revenue Code,
1968 is not rebutted.
(xii) Under Articles 30(4)(e), 30(4)(f) , 30(4)(i) or 30(4)(g) of the Old Code only the general body of Communidade has power of sale or to grant a
long lease or of remission and that too after sanction of the Governor General and therefore the alleged remission in the year 1984 is per se illegal,
invalid and void.
(xiii) It is contended that Articles 341 to 346 do notapply in the present case and the appellant continues to have 'Dominio Direto' over the land on
the death of the original grantee in the year 1935.
(xiv) Aforamento under the Code is a lease and not a permanent lease and therefore the Comundiade does not lose ownership of the land unless
ownership is transferred by following the procedure under the Code.
On the contrary it is submitted by Shri Usgaonkar, the learned Senior Counsel for the respondent that 'Aforamento' or  'Emphytensis' are
governed by Chapter VI, Section I of the New Code. He has taken me through the various Articles governing the Aforamento or Emphytensis. It is
stated that the Aforamento are heritable and it is not necessary to bring the legal representatives of the original allottee on record. It is submitted that
once the document of definitive possession is executed, the same 'virtually', confers title. The learned Senior Counsel was at pains to point out that
the Comunidade after the grant of definitive possession is only entitled to receive 'foro' and there is no provision in the Code for reversion of the land,
once the definitive possession is delivered. The learned Senior Counsel has submitted that there are three types of leases contemplated under the
Code.
The ones governed by Article 291 (Section VII) are the short term leases for six years of paddy fields, the second are long term leases governed by
Article 317, in respect of uncultivated lands or paddy fields or lands which are having fruit bearing trees where the Comundide is not in a position to
carry out the expenses necessary for its improvement. The period of such long term leases is from 9 to 18 years. The third ones are Aformento or
emphytensis governed by Article 324 of Chapter VI. It is submitted that the present case is governed by Article 324 of the New Code. It is submitted
that the provisions of the Old Code would cease to apply on coming into force the new Code.
It is submitted that the reliance placed on Article 301 and 304 is misplaced as the same are not applicable in the present case. It is submitted that
Article 341 is the only provision which envisages reversion of lands granted on emphytensis. It is submitted that the land granted on emphytensis shall
revert back to the Comunidade if it is not utilized within four years from the date of possession and Article 346 provides that the order of reversion
shall be published in the Government Official Gazette recorded in the final Book. It is submitted that admittedly the final possession has been delivered
in the present case and the remission of the foro having been done in the year 1984, the respondent has become the owner of the land.
I have given by anxious consideration to the rival circumstances and the submissions made.
 It is not in dispute that the suit land was given to late Domingos on 'Aforamento' on 14/11/1906. Domingos died on 22/1/1935 and his wife Eliza
D'Souza died on 6/10/1981. Domingos and Eliza had a son and a daughter i.e Manuel D'Souza and the respondent. Manuel D'Souza died on 11/3/1974,
while his wife Nuemia Aguiar died on 24/5/1979. Bernard D'Souza is the son of Manuel and Nuemia. It is further a matter of record that after the
grant of the aformento in the year 1906Â definitive possession was granted to Domingos on 20/6/1908. The Deed of Definitive Possession is on
record at Exhibit 13. It recites that the definitive possession is conferred in accordance with para 1 of Article 301 of the Code of Comundiades (Old
Code) to confer the definitive possession of the suit land granted in emphytensis for the cultivation of fruit trees and rice to Domingos D'Souza. It
also recites that the definitive possession has been granted as the said plot had rice cultivation over its entire area and “coming, therefore, under
the provisions of Article 304 (2) of the Code and the concessionaire Domingos D'Souza having accepted the said possession had undertaken to pay
annually to the Comundiade the fee of “Rs.5/- and one tangaâ€. It can thus be seen that the definitive possession was granted to late Domingos
under Article 301 and 304 of the Old Code. Articles 301 and 304 of the Old Code correspond to Article 337 and 341 of the new Code. Once theÂ
definitive possession was granted to late Domingos it cannot be accepted that there was any breach of conditions as to the cultivation or the planting
of trees in the land by late Domingos. Aforamento or emphytensis presupposes that the provisional possession is given subject to the condition of the
cultivation of the land and/or planting of the trees and it is only after the said condition is fulfilled that the final/definitive possession is granted. Thus,
it cannot be accepted, and that too at this distance of time, that the definitive possession was granted to late Domingos, although there was a breach
of condition as to cultivation of the land or planting of trees. The case made out by the respondent is that late Domingos was cultivating the land and
was taking paddy crop and he also planted cashew trees in it. The appellant claimed that the land was kept barren which in my considered view
cannot be accepted. It would be significant to note that “ Deed of Definitive possession†(Exhibit 13) specifically mentions about the grant of
the definitive possession, as the said plot had rice cultivation over its entire area' .
It would now be necessary to deal with the the contention that the provisions of the New Code would not be applicable and the matter
would still be governed by the provisions of the Old Code.
The learned District has noticed that although Aforamento was granted to late Domingos under the old Code, however, the provisions of the old
Code were not produced before the learned District Judge. If at all the appellant was relying upon the provisions of the old Code, (which according to
the appellant are at variance with the new Code), it was necessary for the appellant to have brought the specific provisions to the notice of the
learned District Judge which has not been done. Shri Desai, the learned Senior Counsel submitted that this being a pure question of law can be
allowed to be raised and this Court can notice the provisions of the old Code. Articles 658 and 660 of the New Code, which are relevant read thus :
Art. 658 â€" The provisions of this Code shall apply to the pending cases, without prejudice to the procedure carried out before the enforcement of
this Code.
Art.659.......
Art. 660 â€" From the date of this enforcement of this Code was made effective all the prior legislation relating to the comunidades is revoked and
specially the Legislative Enactments Nos. 651, 966, 1035, 1051, 1294, 1301, 1306, 1308, 1317, 1381, 1471, 1578, 1628, 1629, 1651, 1741 and 1869, of
30th March, 1933, of 1st September, 1937, of 23rd December, 1938, of 27th April, 1939, of 30th July, 1949, of 18th August, 1949, of 22nd September,
1949, of 13th October, 1949, of 2nd December, 1949, of 21st June, 1951, of 30th April, 1953, of 24th February, 1955, of 15th March, 1956, of 15th
March, 1956, of 20th September, 1956, of 3rd October, 1957 and of 18th December, 1958, respectively, and Orders Nos. 5028, 5110 and 7664, of 19th
January, 1950, of 28th September, 1950 and of 12th November, 1959, respectively. Goa, 15th April, 1961.
                                            (Emphasis supplied)
It can thus clearly be seen that the provisions of the new Code shall apply to the pending cases, “without prejudice to the procedure carried
out before the enforcement of the new Codeâ€. Article 660 provided that from the date of the enforcement of the new Code “all the prior
legislation relating to the Comundiadeâ€, is revoked and it proceeds to enlist the specific enactments which stand so revoked. Shri Desai, the
learned Senior Counsel of the appellant submitted that the old Code does not find place as the one which is revoked in Article 660 and therefore, the
old Code cannot be said to be revoked. The contention in my considered view cannot be accepted. A conjoint reading of Articles 658 and 660 of the
new Code Code would make it explicit, that from the date of the enforcement of the new Code “all the prior legislation (which would include the
old Code) relating to the Comunidade would stand revoked. There is no reason to exclude the old Code from the operation of Article 660. Article
658 makes the position further clear that all pending cases shall be governed by the new Code.
It was submitted by Shri Desai, the learned Senior Counsel for theappellant that Article 658 would be attracted to only those cases which were
pending in the year 1961, when, the new Code came into force and not to cases instituted subsequent thereto. The contention has to be recorded only
to be rejected. If the contention is accepted, it would lead to a incongruous situation where the matters which are pending in the year 1961 would be
governed by the new Code and those instituted subsequently would be governed by the old Code. The interpretation which would lead to such a
startling result cannot obviously be accepted. As noticed earlier a conjoint reading of the Articles 658 and Article 660Â Â leaves no manner of doubt
that from the enforcement of the new Code all the prior legislation relating to the Comunidade is revoked and the matter would be governed by the
new Code.
Shri Desai, the learned Senior Counsel submitted that on repeal of the old Code the situation would be governed by Section 6 of the General
Clauses Act. Section 6 of the General Clauses Act which provides for effect of repeal reads thus :
“6 Effect of repeal -Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto
made or hereafter to be made, then, unless a different intention appears, the repeal shall not(a) revive anything not in force or existing at the time at
which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as
aforesaid.â€
It is thus evident that section 6 of the General Clauses Act applies subject to any different intention appearing in the enactment or the Act
repealing the previous enactment. The effect of the repeal in the present case is set out in Article 658 of the new Code and therefore section 6 of
the General Clauses Act cannot apply in the present case. For all these reasons the contention based on the provisions of the old Code in my
considered view cannot be accepted and the matter will have to be looked into in the context of the provisions of the new Code.
I would now propose to deal with the grounds based on the conduct of Jose Noronha, the Attorney of the Comunidade. It is contended that the
said Attorney in collusion with the respondent had given no objection before the Revenue Authority for deletion of the name of the appellant from
Form No. I and XIV and had also filed a written statement admitting the claim of the respondent in the civil suit and had accepted the payment of the
arrears of foro from the year 1969 and 1984 and the remission without any authority. In this regard it would be significant to note that the respondent
has produced two receipts at Exhibit 15 and Exhibit 16 towards payment of foro of Rs.84.89 from 1969 to 1984 and Rs.106/- towards the remission of
foro for 20 years. The receipts are signed by the 'Escrivao' of the appellant. There is a certificate Exhibit 14 issued by the Clerk of the Commundiade,
Mr. Sebastiao Vaz produced on record, which reads thus:
“This is to certify that on going through the current cash book, of this comundiade, in my charge, of the current year 1984, signed by the
Administrator of Communidade of Tiswadi Taluka, Smt. Naini Jajaseelan, on 15th February, 1984 and at page 30v, it is recorded that on 14th May
1984 at item no.4, it has been credited in the coffer of this Comunidade by Smt. Leticia De Souza, of Taleigoa an amount of Rupees one hundred and
six only (Rs.106.00) of lease rent of twenty annual installments (remissao de foros at 728) of a hilly an uncultivated plot, situated at N. S. da Graca,
granted to Shri Domingos Francisco de Souza, of Piedade for agriculture of trees and paddy crop (cultura de arveres e d'arroz). It is bounded on the
east, west and north by the land of Comunidade and on the south by the public road 15 metres wide in between this lease plot and of the Condor set
Albuquerque. The said property stand in the name of Shri Domingos Franciso de Souza of Piedade and registered the book known as Livro Tombo
20 Bâ€, Volume II at page 159 overleaf and no.728.
  That the aforesaid remission has been anoted in the said inscription.
 This certificate has been issued at the request of Shrimati Leticia de Souza of Taleigao.
The emolument of Rupees one only (Rs.1.00) has been credited in the respective book by at item no.5.â€
It can thus be seen that the amount which was paid by the respondent in the year 1984 has been duly credited in the confers of the Comundiade and
the certificate also recites that the suit property which stands in the name of Domingos D'Souza is registered in the Book known as “Livro Tombo
Bâ€. It can thus be seen that the amount has been entered in the relevant register in the current cash book of the Comunidade which has been
signed by the Administrator of the Comundiade of Tiswadi Taluka on 15/2/1984. It may be mentioned that the Administrator of Comunidade is an
officer appointed by the Government having administrative control over the Communidades. Thus there was an independent officer who had signed
the current cash book showing the entry about deposit of the amount. A useful reference at this stage may be made to the evidence of RW.1 who
was the attorney of the appellant for the year 1996-1998 and for the second term from 1998-2001.
This witness has admitted that the payment of foro has been recorded in the “Livro De Tombo Bâ€. The witness has stated that “it may beÂ
that the appellant (the respondent herein) or the ancestor has been paying foro to the Comundiade right from the year 1908 till 1969. He further stated
that the respondent herself for the first time paid the foro for the year 1969 to 1984.
He further admitted that in the year 1984 the respondent has done the remission of the foro and that a certificate was issued in this regard. It can
thus clearly be seen that as admitted by the solitary witness on behalf of the appellant, the respondent had paid the foro and effected the remission
of the foro in the year 1984. In so far as the payment of foro from the year 1908 to 1969 is concerned, the witness was evasive and did not state in
clear terms that the foro for the period prior 1969 was not paid. In fact, the said witness was the best person to state about the non payment of the
foro up to the year 1969. However, he avoided to answer it in clear terms and on the contrary stated that it may be that the respondent or the ancestor
has been paying the foro to the appellant from the year 1908 till 1969. The fact remains that the amount has been credited to the confers of the
Comundiade and entered in the register Livro De Tombo B and the current cash book has been verified by the Administrator. Thus the contention
based on the authority of the Attorney and the action taken against him cannot take the case of the appellant any further. It has come in the
evidence of RW.1 that in a general body meeting held on 27/11/1994Â (i.e. 10 years after the payment of the foro and the remission) one Mr. Luis
Jose Toscano was appointed as Special Attorney in the place of Jose Noronha. There is absolutely no explanation forthcoming why such action was
not taken for a period of 10 years.
Considering the fact that the amount has been credited to the coffers of the appellant which has been verified by the Administrator and the evidence
of RW.1 about payment of the foro and the remission done and the fact that the some action was taken belatedly in the year 1994 of appointment of a
Special Attorney, I am not inclined to accept the contention based on the want of authority in the Escrivao or the attorney in accepting the payment.
The contention on behalf of the respondent, that the attempt on the part of the appellant to return the amount of Rs.106/- to the respondent, was an
afterthought, appears to be well founded.
The contention that the receipts Exhibit 15 and 16 are not proved since the Escrivao of the appellant has not been examined also cannot be
accepted for the reason that the document Exhibit 13 acknowledges the receipt of the amount and has also been admitted by RW.1.
The reliance placed on Article 301 and 302 of the new Code to my mind is clearly misplaced. Article 301 and 302 of the new Code fall in Section
VII pertaining to leases of paddy fields which can be granted by public auctions for a period of six years. Section VII does not govern the
'Aforamentos or Emphytensis.'Â The Deed of definitive possession (Exhibit 13) obviously refers to Article 301 of the Old Code, which corresponds
to Article 337 of the new Code, while Article 304 of the Old Code corresponds to Article 341 of the new Code. It is clear that once the definitive
possession is granted the appellant can only have a right to receive foro and nothing else. The learned Senior Counsel for the appellant has been
unable to point out any provision under which a reversion of such land to the Comunidade is contemplated after the grant of the definitive possession.
The provisions of Article 341 contemplate reversion of such lands if the same are not utilized within four years from the date of provisional
possession. Thus Article 341 would not apply to a case where the definitive possession has been granted, as in the present case.
A brief reference at this stage may be made to the provisions regarding redemption of the foro which are contained in Article 241 of the New
Code. It provides that after the redemption (when it is of the entire foro) the clerk of the comundiade shall cancel the mutation of the said property
made in the Register-2 (Tombo 2). It can thus clearly be seen that grant of definitive possession and redemption of the entire foro brings about the
cessation of the ownership of the Comundiade over the property.
I have carefully gone through the evidence of the two witnesses examined on behalf of the respondent and I find, their evidence to be consistent
and acceptable about the possession of the land. I have already noticed that the definitive possession could have been granted only on compliance with
the conditions of cultivation/planting of trees and once admittedly such definitive possession was granted, the contention on behalf of the appellant that
there was breach of condition as to cultivation or planting of trees, cannot be accepted.
Shri Desai, the learned Senior Counsel for the appellant had submitted that even assuming that the new Code is applicable still the remission made
in the year 1984 was illegal and void ab initio as it was not done in terms of the procedure prescribed under Articles 248 and 262 of the New Code.
The contention cannot be accepted. Articles 248 of the New Code falls in Section I of Chapter III pertaining to ordinary auctions, while Article 261
falls in Section II of Chapter III. Chapter III provides for estimate or evaluation of items of revenue and items of expenditure in general. Section II of
Chapter III provides for licitation. Article 261 provides for extraordinary auctions of the perishable trees and of the old wood of the gates which
shall be done by way of notices issued eight days in advance, while Article 243 provides for all ordinary auctions, of the properties, works, services
and agreements of the comunidade which shall be preceded by an estimate or evaluation, in compliance with Article 244 onwards. It is difficult to
see as to how these Articles can apply to a case of remission of foro in respect of an Aforamento or emphyteusis. The reliance placed on ArticlesÂ
30 (4)(e)(f) and (i)is also misplaced. Article 30 provides for powers of comunidades and falls in Section II of Chapter II. Article 30(4)(e) provides
that the Comunidade shall deliberate on acquisition of lands. Article 30(4) (f)Â provides for emphyteusis, sale or exchange of land and Article 30(4)
(g) provides for institution, admissions, withdrawal and compromise of civil suit and (i) about the grant of rebate (quita) to the leaseholders. The
contention is that the remission in the year 1984 is per say illegal for want of non compliance with the aforesaid Articles. None of these Articles on
which reliance is placed speak of remission of the foro in respect of an Aforamento or emphyteusis.  It is not disputed that the land was given on
Aforamento basis to late Domingos in the year 1906 and a definitive possession was delivered in the year 1908. The contention, therefore, that the
remission is bad for want of the compliance with Article 30(4) (e), 304(f) and 30(4)(i) cannot be accepted.
Coming to the entry in the Form No.I and XIV, the learned District Judge has held and to my mind rightly so, that the entry in the Revenue
record, can at the highest raise a presumption, which is rebuttable and which stands rebutted on facts, in view of the grant of the definitive possession
and the remission of foro done in the year 1984.
Shri Desai, the learned Senior Counsel for the appellant had referred to Article 1663 of the Portuguese Civil Code in order to submit that it
provides for reversion of the land. The said article reads thus:
“ Right to succeed in the emphyteutic lease. In the absence of testamentary heirs or forced heir of the last emphyteutia the property shall devolve
on the owner of dominium directumâ€
All that Article 1663 of the Portuguese Civil Code provides, is that in the absence of testamentary heirs or forced heir of the last emphyteutia the
property shall devolve on the owner of dominium directum. It was not even the case made out before the learned District Judge that the land would
revert to the appellant by or under Article 1663 of the Portuguese Civil Code. The relationship of the respondent with late Domingos stands
established on record. All that Article 1663 of the Portuguese Civil Code provides is in the nature of an 'escheat', where in the absence of any
heirs, the property reverts to the State. In any event, no such ground was ever raised before the learned District Judge nor it is raised in the
appeal memo, before this Court.
At this stage a brief reference may be made to the decision of this Court in the case of Smt. Basilia M. Gomes and others Vs. M/s. Zuari Agro
Chemicals Ltd. and anr., Second Appeal No.118 of 2003 decided on 5/8/2014. In that case this Court had considered the effect of grant of
Aforamento by the Comunidade. The issue arose in the context of a question as to whether the respondent no.1 therein was an aggrieved person to
challenge the decree passed by the trial court. This Court inter alia held, in para 8 of the judgment that the grant of the Aforamento in terms of
Article 324 of the Code of Comunidade and the contract of emphiteuta is of a permanent nature. This Court further went on to hold that Article
1673 of the Portuguese Civil Code inter alia provides that the emphiteuta has a right to enjoy the property and to dispose of, as his own, save the
restrictions expressed in law. It has further been held in para 16 of the judgment that in view of the Aforamento executed in the year 1969 and on
payment of the annuities, the full ownership of the property vests in the respondent no.1.
The net result is that there is no provision for reversion of the land granted on Aforamento basis, once the final/definitive possession is delivered
and on remission of foro the land vests absolutely in the allottee.
I have carefully gone through the impugned judgment and I do not find that any case for interference is made out. The appeal is without any
merit and is accordingly dismissed, with no order as to costs.
Decree be drawn accordingly.