Hussain Khan vs Pandurang S.B. Caculo and Others

R.M.S. Khandeparkar, J.—This Appeal arises from the Award dated 24th November 1989 passed by the District Judge, South, at Margao in Land Acquisition Case No. 104 of 1981. It was a Reference u/s 30 of the Land Acquisition Act, 1894 in relation to compensation awarded for a plot no. 10 which was the subject-matter of Award in Case No. SLAO/43/665/74 for an area of 10,300 square metres. The compensation awarded was Rs. 3,589-15. The land was acquired for the work of canal for Selaulim Irrigation Project in the village of Zanoddem in the Taluka of Quepem. Since the parties raised dispute regarding the right to compensation, the same was referred for necessary decision in terms of Section 30 of the said Act. By Notification No. RD/LQN/37/73 dated 9-1-1974 published in the Official Gazette dated 17-1-1974, the Government acquired 10 plots of land in the village of Zanoddem in Sanguem Taluka for the purpose of construction of the canal for Selaulim Irrigation Project. Out of the said 10 plots, there was no dispute either relating to ownership or possession as regards the 9 plots which were admittedly part and parcel of the property "Gotangalichem Mol" or "Catao Molla" belonging to Panduronga S.B. Caculo, the predecessor of the Respondents Nos. 1 to 6 herein. The dispute related to only plot No. 10.

It is the case of the Appellant that plot no. 10 is part and parcel of the property "Bimo Galli" which is the eastern boundary of the property "Gotangalichem Mol" and 1/2 share of the said property belongs to him and, therefore, he is entitled to the corresponding share in the compensation awarded for the said plot No. 10.

It is the contention of the Respondents Nos. 1 to 6 that the said plot No. 10 forms part of the property "Catao Molla" or "Catao" and the entire compensation in respect of the said plot No. 10 is to be paid to them.

It is the case of the Respondent No. 7 that the plot No. 10 is part and parcel of the property "Bimo Galli". It is her case that she along with her husband is entitled for 3/4 share in the property "Bimo Galli" whereas the Appellant is entitled to 1/4 share only. However, as far as plot No. 10 is concerned, it is the case of the Respondent No. 7 that the area comprised under plot No. 10 falls entirely within the 3/4 share belonging to the Respondent No. 7 and, therefore, the entire compensation in relation to plot no. 10 is to be paid to her.

On detail analysis of the evidence on record, the Reference Court was held that the Respondent No. 1 to 7 have proved that the land acquired by the Government is part and parcel of their property known as "Catao Molla" locally known as "Catao" and they are entitled for the entire amount of compensation awarded by the Land Acquisition Officer. It has been further held that the legal representatives of original Respondent No. 5 as well as of No. 6 are entitled to the whole amount of compensation awarded in share of 50% to the legal representatives of the Respondent no. 6 and remaining 50% to the legal representatives of the Respondent No. 5, by virtue of ''Escrito de Conciliacao'' dated 31-7-1978. It has been further held that the Appellant herein has failed to prove that half of the land acquired forms part of his property "Bimo Galli" while the remaining half is of the property of the Respondent No. 7 and as such, also failed to prove that the Appellant and the Respondent No. 7 are entitled to equal shares in entire amount of compensation awarded by the Land Acquisition Officer for the said plot No. 10.

Being dissatisfied by the said Award, the Appellant who was the original Opponent no. 1 before the Reference Court has filed the present Appeal.

Upon hearing the learned Advocates appearing for the parties and on perusal of the entire records and considering the submissions made by the learned Advocates, two questions arise for consideration in this Appeal:-

(1) Whether the Reference Court misread and misrepresented the evidence on record while arriving at the decision arrived at; and

(2) Whether the Reference Court is justified in discarding or disbelieving the oral evidence on record, while deciding the matter.

The Reference Court on detail analysis of the documentary evidence on record has held that the same disclose that the land acquired for canal does not form part of the property "Bimo Galli" of the Appellant or the Respondent No. 7 herein but forms part of the property "Gotangalichem Mol" or "Catao Molla" of the Respondents Nos. 1 to 6. No doubt, the Reference Court has discarded the testimony of the witnesses of the Respondents Nos. 1 to 6 on the ground that they are either workers or the tenants or the mundkars of the said Respondents and that therefore, are interested witnesses. The Reference Court has also disbelieved the witness of the Appellant on the ground that he was not even of the age of 20 years at the time of acquisition of land and cannot be believed to know anything about the land in question.

Apart from bare submission that the Reference Court has misread or misinterpreted the documentary evidence, the Appellant has not been able to demonstrate as to how the documentary evidence has been misread or misinterpreted by the Reference Court. In fact, on plain reading of the documentary evidence on record along with the testimony of the witness of the Attorney of the Respondents nos. 1 to 6 the same clearly establish that the property which has been acquired for the canal in the village of Zanoddem in plot no. 10 is one that belongs to the Respondents nos. 1 to 6 and no part of the same belongs either to the Appellant or to the Respondent no. 7.

The evidence on record clearly establishes that the property acquired is from the land bearing Survey no. 20 and is situated in the village of Zanoddem. The Attorney of Respondents Nos. 1 to 6, Shripad Sirsat (P.W. 1) in his testimony has deposed that the suit property is surveyed under No. 20 with 8 sub-divisions and has also produced a survey plan thereof along with the certificate of the Survey records which discloses the registration of the said property in the name of the predecessor of the Respondents nos. 1 to 6 and the said facts have not been disputed either by the Appellant or by the Respondents Nos. 1 to 7. The witness has also deposed that the said property was being always enjoyed by Respondents Nos. 1 to 6 and their predecessor and no portion of the said property had ever belonged to the Appellant or the Respondent no. 7. There is a categorical statement by the witness that the entire portion acquired for the purpose of canal and the subject-matter of the present proceedings was owned and possessed by Caculo, i.e., the predecessor of the Respondents Nos. 1 to 6. The witness also deposed that in the acquired portion there was no paddy field. All these statements of the deponent could not be disproved by the Appellant or the Respondent no. 7 and not even a suggestion was put to the witness denying any of the said statements. The testimony of P.W. 1, therefore, has remained unchallenged on material aspects of the case and that itself establishes the claim of the Respondents Nos. 1 to 6 to the acquired land. Moreover, the same has been duly corroborated by other evidence on record.

The Reference Court has discarded the testimonies of the witnesses of the Respondents Nos. 1 to 6 on the ground that the witnesses are either workers or tenants or mundkars of the said Respondents and, therefore, they are interested witnesses. In my considered opinion, whether a witness is interested witness or not is to be considered not merely from the relationship which the witness maintains with the party to the proceedings but basically from the point of interest of the witness in the subject-matter of the dispute. The subject-matter of the dispute in the case in hand is the right to compensation awarded in the land acquisition proceedings. The total compensation awarded is Rs. 3,589-15. The number of witnesses examined by the said Respondent is 4. None of the said witnesses is entitled to claim any share in the compensation awarded for which the parties to the proceedings have laid claim. The witnesses, therefore, have no personal interest of whatsoever nature in the subject-matter of the dispute before the Court. Being so, wholesome discardation of their testimony on the ground that they are interested witnesses because they are workers or tenants or mundkars of the Respondent no. 1 to 6 and that too without even analysing their testimony is neither proper nor justifiable. Moreover, on that count alone there is no justification for interference in the impugned Award as the decision arrived at in the Award can otherwise be established and analysis of the oral evidence cannot lead to a conclusion different from the one arrived at by the Reference Court in the Award.

All throughout it has been the case of Appellant and Respondents No 7 that the property acquired for canal in the village of Zanoddem is from the property "Bime Galli" or "Bimgalle Sordo" of the Appellant and Respondent No. 7. All the witnesses of the Respondents Nos. 1 to 6 have deposed that the property "Bime Galli" of the Respondents is a paddy field. They have also deposed that the canal exists at a distance of about 150 to 250 metres away from the paddy field of the Appellant. The Appellant and the Respondent No. 7 have not been able to shake the testimony of the said witnesses inspite of thorough cross-examination of the said witnesses. Added to the same, the witness of the Appellant himself has lent full support to the evidence in favour of the Respondents Nos. 1 to 6. The witness R.W. 2 Raghu Malik has clearly admitted in the cross-examination that the canal passes through the property "Gotangalichem Mol" and he does not know whether the said property is purchased by Caculo. Respondent No. 7 herself has also stated in her testimony that the canal lies at a distance of about 100 metres from the paddy field.

Besides, as rightly observed by the Reference Court, the property "Bimo Galli" is only a paddy field. The analysis of the materials on record by the Reference Court in that regard reads thus:-

The respondent no. 1, in the course of his deposition, produced a certificate of the Land Registration Office and another certificate of matriz stating that they refer to the property Bimgalle. However, I have no hesitation in stating that the certificate of Land Registration Office produced by him at Exh. 34 has no relevance at all with the property Bimgalle part of which is claimed by him in this certificate the property no. 8182 is described. Its name is given as "Bimgalle Sordo" and it is stated in it that it is "land of rice cultivation and other trees situated at Zanoddem of Molcornem of Sanguem, Quepem Taluka, bounded on the east with top of the hill, on the west with the property Molla of Catao da Costa now his children, on the south with paddy field Bimgalle of Constancio Miranda and on the north with the property Bimgalle of Puttuly Sinainim" Patently, the denomination of Bimgalle Sordo is not the same denomination as "Bimgalle". This difference is very material because from the certificate it can be seen that, in the area, there are properties with the simple name of "Bimgalle" and at least one property by name Bimgalle Sordo. On the other hand, the boundaries given in this document do not tally at all except for the western boundary with the matriz certificate produced by the same respondent no. 1. To be noted that in this matriz certificate produced by the respondent no. 1 the property Bimgalle is registered under no. 1 and though it is not written in the certificate that it is a paddy field, after its boundaries are given, the following entry is made in it: "it is of cultivation of 2 kandis and 1 and half mounds of paddy and one kandi and 2 mounds - gross yield 10 kandis and 8 mounds of paddy in sorod (season) and 2 kandis of paddy in sorod (season)". From this entry in respect to the produce of the property it appears that the property Bimgalle of the respondents is only paddy land.

The analysis of the materials on record disclosed in the above quoted Para from the impugned judgment is perfectly logical and is borne out from record and, therefore, I have no hesitation in endorsing the same to be correct and proper.

In fact, there is a clear admission on the part of the Appellant himself that his property "Bime Galli" comprises of paddy field only. His testimony in that regard reads thus:-

...the canal subject matter of this reference passes through survey no. 20/1 of 5 if I am not mistaken. It is true that my property Bimgalle comprises of paddy field only.

In other words, the fact that the land acquired is from the property bearing survey no. 20 has been clearly admitted by the Appellant himself in his testimony. The said fact was not disputed by the Respondent No. 7 even in the course of cross-examination of the Appellant or while giving her testimony in the Court. Neither the Appellant nor the Respondent No. 7 has ever claimed any right to the property bearing survey no. 20. Undisputedly, the property bearing survey no. 20 is registered in the name of predecessors of Respondents nos. 1 to 6 and the same is owned by and belongs to them.

Considering the entire materials on record, therefore, it cannot be said that the Reference Court has committed any error in arriving at the finding that the land acquired is part and parcel of the property "Gotangalichem Mol" or "Catao Molla" and the same belongs to Respondents Nos. 1 to 6 and, therefore, the Appellant is not entitled for any compensation in the land acquired from the said property. In the result, therefore, the Appeal fails and is hereby dismissed with no order as to costs.