Shri Janu Gaunkar (Since deceased) and Others vs Shri Rama Yesso Gaonkar and Others

F.M. Reis, J.—Heard Shri R.G. Ramani, learned Counsel appearing for the appellants, Shri Sudin Usgaonkar, learned Counsel appearing for the respondent nos. 1 and 2 and Shri V.G.P. Dukle, learned Counsel appearing for the respondent no. 19.

The above appeal challenges the judgment and award dated 05.06.2002 passed by the IInd Addl. District Judge, South Goa, Margao, in Land Acquisition Case No. 55/1988 whereby the compensation determined by the Land Acquisition Officer was directed to be apportioned in the proceedings u/s 30 of the Land Acquisition Act, 1894 ( hereinafter referred to as "the said Act" ) whereby the compensation for an area of 4025 square metres was ordered to be apportioned in favor of party no. 10-respondent no. 17 herein; the compensation in respect of 900 square metres was directed to be apportioned in favor of the party no. 11-respondent no. 18 herein; the compensation in respect of an area of 5700 square metres was directed to be apportioned in favor of the party no. 12 -respondent no. 19 herein and the remaining compensation in respect of an area of 6375 square metres was directed to be apportioned in favor of the appellants and the respondent nos. 1 and 2 herein.

Shri Ramani, learned Counsel appearing for the appellants has assailed the impugned judgment on the ground that the land which has been acquired was originally registered in the Land Registration Office under No. 3928 and belonged to three persons namely Govind Bisso Gaonkar, Rama Pingo Gaonkar and Govind Guno Gaonkar. The learned Counsel pointed out that they are in exclusive possession of the portion of the property which is the subject matter of the present acquisition and the compensation awarded ought to have been paid to the appellants. The learned Counsel further pointed out that the appellants does not challenge the part of the impugned judgment directing that the compensation in respect of an area of 4025 square metres is to be apportioned in favor of party no. 10 and for an area of 900 to be apportioned in favor of party no. 11. The learned Counsel further pointed out that the respondent nos. 1 and 2 have no right to the acquired portion of the land and consequently the direction given by the Reference Court to the effect that the compensation payable to the appellants is to be paid jointly to the appellants and respondent nos. 1 and 2 is totally unsustainable. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has failed to ascertain as to who has title to the acquired portion of the land and consequently the direction given by the Reference Court to the effect that the compensation is to be paid jointly to the appellants and respondent nos. 1 and 2 in respect of an area of 6375 square metres cannot be accepted. The learned Counsel has also disputed the payment of the compensation in favor of the respondent no. 19 herein as according to him, the property which has been purchased by the said respondent is not a part and parcel of the acquired portion of the land. The learned Counsel has further pointed out that the land which has been acquired was surveyed under No. 328 of Loliem Village and the land which has been sold to the respondent no. 19 does not form part and parcel of the acquired portion of the land. The learned Counsel further pointed out that the acquired portion of the land is surveyed under No. 328/1 which is not the portion which has been purchased by the respondent no. 19. The learned Counsel as such submitted that the judgment of the Reference Court to the effect that the compensation is directed to be paid to the respondent no. 19 is in respect of an area of 5700 square metres deserves to be quashed and set aside. The learned Counsel as such submitted that the total compensation awarded by the Land Acquisition Officer is to be apportioned in favor of the appellants.

On the other hand, Shri Sudin Usgaonkar, learned Counsel appearing for the respondent nos. 1 and 2 has pointed out that it is not in dispute that the property belonged to the said three persons. But however, it is his contention that the respondent nos. 1 and 2 are the descendants of the original owner and the property is undivided. The learned Counsel further pointed out that there is no dispute that the respondent nos. 1 and 2 have got their own residential houses in the remaining portion of the property and that the son of the original respondent no. 1 has planted some fruit bearing trees therein which itself establishes that the said respondent also have a right to the acquired portion of the land. The learned Counsel further pointed out that the appellants have miserably failed to establish that they are in exclusive possession of the property and that they are only the descendants of the said three persons to whom the property originally belonged. The learned Counsel further does not dispute that the share of Govind Bisso Gaonkar was sold to Madhu Timblo whose rights have now devolved upon the respondents who are his legal representatives namely respondent nos. 3 to 8. The learned Counsel further pointed out that the Reference Court has rightly come to the conclusion that the said respondent nos. 3 to 8 have got rights to the acquired portion of the land as the subject matter of the property sold to their ancestor Madhu was the property surveyed under Nos. 328/1, 2 and 3. The learned Counsel further pointed out that as far as the dispute raised by the appellants with regard to the claim of respondent no. 19 is concerned, the learned Counsel Shri Usgaonkar, supports the submission of the learned Counsel appearing for the appellants.

Shri Dukle, learned Counsel appearing for the respondent no. 19 has pointed out that the Reference Court has rightly awarded the compensation to the respondent no. 19 in respect of an area of 5700 square metres which forms part and parcel of the property purchased by the respondent no. 19 way back in the year 1976. The learned Counsel further pointed out that the appellants themselves have sold a portion of the property admeasuring an area of 1,10,000 square metres from the said property registered under No. 3928 in favor of the respondent no. 19 and now it is not open to them to contend that the acquired portion does not form part and parcel of the property sold to the respondent no. 19. The learned Counsel has further taken me through the boundaries as mentioned in the sale deed and pointed out that one of the boundaries to the northern side is the road and the acquisition which has taken place is for the widening of the said road. The learned Counsel further pointed out that on perusal of the sale deed, the western boundary of the property purchased by the respondent no. 19 is the property of Isidoro Fernandes who has also put a claim in the present proceedings and the appellants in fact have not disputed that the compensation is to be paid to the said Isidoro Fernandes who is the respondent no. 18 in the present proceedings. The learned Counsel further pointed out that in fact the appellants have not raised the grievance to the compensation awarded to the respondent no. 19 as according to him, there was no objection raised in the written statement with regard to the claim put forward by the respondent no. 19 to the compensation awarded by the Land Acquisition Officer. The learned Counsel as such submitted that there is no case made out by the appellants for interference in the impugned judgment as far as the amount of compensation awarded to the respondent no. 19 is concerned and consequently the appeal filed by the appellants in respect of such claim deserves to be rejected.

Having heard the learned Counsel and on perusal of the records, the following two points that arise for my determination in the present appeal :

POINT FOR DETERMINATION

Whether the Reference Court was justified to direct the payment of compensation in respect of an area of 6375 square metres from the acquired land in favor of the appellants and respondent nos. 1 and 2 jointly ?

Whether the Reference Court was justified to direct the payment of the compensation in respect of an area of 5700 square metres from the acquired land in favor of the respondent no. 19 herein ?

Dealing with the first point for determination, it is not in dispute that the property was originally belonged to three persons namely Govind Bisso Gaonkar, Rama Pingo Gaonkar and Govind Guno Gaonkar. The learned Judge after appreciating the evidence on record has come to the conclusion that there is no material adduced by the appellants to establish that the appellants were in exclusive possession as owners and only descendants of the said three persons. In fact whilst disposing of First Appeal No. 194 of 2002, this Court in similar circumstances on the basis of similar claim of possession of the parties, has come to the conclusion that the compensation in respect of the same property surveyed under No. 328 is to be disbursed in favor of the appellants and respondent nos. 1 and 2 and some other persons. In the said proceedings, this Court has come to the conclusion that the claim of the appellants that they are in exclusive possession as descendants of the said three persons cannot be accepted. Considering the reason given in the said judgment whilst disposing of the said First Appeal, I find that the learned Judge was justified to come to the conclusion that the appellants have not established that they are the exclusive owners and in possession of the acquired portion of the land. Hence, considering that it is not in dispute that the respondent nos. 1 and 2 as well as the appellants have their residential houses in the remaining portion of the land which forms part and parcel of the property registered under No. 3928, I find that the Reference Court was justified to direct the payment of the compensation in respect of 6375 square metres is to be awarded in favor of the appellants and respondent nos. 1 and 2. The first point is answered accordingly.

With regard to the second point for determination, the respondent no. 19 has produced a sale deed dated 14.09.1976 which is at Exhibit P12/A. On perusal of the said sale deed, it cannot be disputed that the appellants themselves have sold an area of 1,10,000 square metres from the same property to the respondent no. 19 herein. On perusal of the boundaries as mentioned therein, I find that the northern boundary of the property sold to respondent no. 19 is the road and the western boundary of the property which was sold is that of said Isidoro Fernandes. Taking note of the contention of Shri Ramani, the learned Counsel appearing for the appellants to the effect that the appellants do not dispute the apportionment of the compensation in favor of Isidoro Fernandes who is respondent no. 18 herein, I find that the appellants are not justified to contend that the acquired portion of the land does not form part and parcel of the property purchased by respondent no. 19 pursuant to the sale deed at Exhibit P12/A. Apart from that, the appellants have examined an expert as AW3 Dilip Gaonkar who is an Architect and he has also stated in his deposition that the said property forms part and parcel of the property purchased by the respondent no. 19 pursuant to the said sale deed. The said witness has also produced a plan which is at Exhibit PW12/F. On perusal of the said plan, I find that the said Architect has identified the portion of the property purchased by the respondent no. 19 in accordance with the boundaries as disclosed in the said sale deed. On perusal of the cross examination of the said witness, I find that there is no justification not to accept the evidence of the said expert witness. On the basis of overall evidence on record, I find that the Reference Court was justified to come to the conclusion that an area of 5700 square metres from the acquired portion of the land forms part and parcel of the property belonging to the respondent no. 19 and consequently the compensation awarded to that extent is to be paid to the respondent no. 19. The second point for determination is answered accordingly.

It is also to be noted that the compensation which has been directed to be paid by the Reference Court is merely on the basis of possession and not on consideration of the title document of the respective parties. It is made clear that the judgment passed in the above appeal shall not come in the way of the respective parties to their claim in the remaining portion of the property beyond the acquired portion. The issue to that effect is left open.

In view of the above, I find no merit in the above appeal which is hereby dismissed.