Shri Lilio Germano Fernandes Retired vs Shri Madhukar P. Dessai, Mrs Jyoti S. Desai, Miss Meena Madhukar Raut Desai, Master Purshotam M. Raut Desai(expired) and Miss Ujwala M. Raut Desai and Others

F.M. Reis, J.—Heard Shri M.B. Da Costa, learned Senior Counsel appearing for the appellant and Shri D. Pangam, Learned Counsel appearing for respondent nos. 5a and 5b.

The above appeal challenges the judgment and award dated 28.07.2003, passed in Land Acquisition Case No.54/1982.

The Government has acquired the land for the purpose of construction of approach road and school building at Xelvona, Quepem, and an award was passed u/s 11 of the Land Acquisition Act, 1894 ( hereinafter referred to as ''the said Act" ) dated 22.08.1981, fixing the compensation in respect of the land acquired. In view of the rival claim put forward for the said compensation, the dispute was referred by the Land Acquisition Officer u/s 30 of the said Act to the learned District Judge. By the impugned judgment and award dated 28.7.2003, the learned Reference Court held that the party no.5 who are respondent nos. 5a and 5b in the above appeal were entitled to receive the entire compensation together with interest accrued thereon. Being aggrieved by the said judgment and award, the appellant has preferred the present appeal.

Shri M. B. Da Costa, learned Senior Counsel appearing for the appellant has assailed the impugned judgment and pointed out that the Reference Court has misappreciated the evidence on record to come to the conclusion that the acquired portion of the land belongs to respondent nos.5a and 5b. The Learned Counsel further pointed out that as per the matriz records relied upon by the appellant, the depiction sought to be made by the said respondents does not corresponds to the boundaries as shown in the said document. The Learned Counsel has taken me through the plan at Exhibit Aw6/84 and pointed out that the depiction sought to be made by the respondent no.5 is not at all correct and not in accordance with the document produced by the appellant in support of his case. The Learned Counsel further pointed out that the expert examined by the respondent no.5 has admitted that he had wrongly shown boundary of the property towards western side. The Learned Counsel further pointed out that though there was a suit filed by the appellant against the wife of the original respondent no.5 which came to be dismissed by the learned Civil Judge Junior Division, at Quepem being Regular Civil Suit No.22/92/B nevertheless the said suit would not come in the way of the appellant while establishing his title over the suit property. The Learned Counsel further pointed out that dismissal of a suit for injunction simpliciter, does not preclude the appellant from filing an appropriate proceedings based on title to establish his right over the suit property. Learned Counsel further pointed out that the Reference Court has failed to consider that the document produced by the appellant establishes that the acquired portion of the property belongs to the appellant and not to the respondent no.5. The Learned Counsel has taken me through the evidence on record as well as the deposition of the witnesses and pointed out that the Reference Court has misappreciated the evidence on record and has come to an erroneous conclusion that the compensation should be paid to respondent no.5.

On the other hand, Shri D. Pangam, Learned Counsel appearing for respondent no.5a and 5b has supported the impugned judgment. The Learned Counsel has pointed out that the depiction made by respondent no.5 as per the said plan at Exhibit Aw6/84 is in accordance with the document produced by the respondent no.5 in respect of his property and as such no interference is called for in the impugned judgment. The Learned Counsel further submitted that in the suit filed by the appellant, the learned Civil Judge Junior Division, Quepem, whilst passing the impugned judgment dated 13.08.1999 has held that the appellant has failed to establish his possession as well as the title to the suit property. The Learned Counsel further pointed out that as the appellant has not challenged the said judgment, the findings arrived at by the learned Judge are binding on the appellant and as such the question of seeking any compensation in respect of the land acquired in the present proceedings would not arise at all. The Learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has rightly appreciated the evidence on record and has given cogent reason to come to the conclusion that the respondent no.5 is entitled for the compensation awarded in the acquisition proceedings.

Having heard the Learned Counsel for the parties and on perusal of records, the following point for determination arises in the present appeal :

POINT FOR DETERMINATION

Whether the Reference Court was justified to direct the payment of compensation to the legal heirs of respondent no.5 who are respondent nos.5a and 5b in the present appeal ?

Whilst passing the impugned judgment, the learned Judge after considering the matriz document as well as other documents produced by the respective parties has come to the conclusion that the property acquired was a part and parcel of the property claimed by respondent no.5. While arriving the said decision, the Reference Court has relied upon the document produced by respondent no.5 and also considered the documents produced by the appellant. No doubt, the evidence discloses that there is a discrepancy with regard to the boundaries as mentioned in the matriz records in respect of the property claimed by the appellant which is matriz no.60 and the identification of the property of the respondent no.5 nevertheless it is well settled that the discrepancies with the boundaries shown in the matriz record does not in any way affect the title over such property. The Reference Court has rightly come to the conclusion that the appellant has failed to discharge the burden cast on him to establish that the acquired portion of the land comes within the boundary as claimed by the appellant. Apart from that, the appellant is also not in a position to establish his possession over the acquired portion of land and has admitted that the boundaries mentioned in respect of matriz no.60 are not correct. The appellant has also admitted that the plan produced before the Civil Court and before the Reference Court differ. The Reference Court has appreciated the documentary and the oral evidence of the appellant and has come to the conclusion that the appellant has failed to discharge the burden that he has a right to the compensation awarded in the acquisition proceedings. As such the Reference Court was justified to reject the claim put forward by the appellant.

Dealing with the contention of Shri M. B. Da Costa, learned Senior Counsel appearing for the appellant that the appellant would be entitled to file an appropriate suit based on title to establish his claim of title and possession over the property, no doubt in appropriate cases a suit for injunction simpliciter by itself does not disentitle a party to file a suit based on title. But however whether such suit would be maintainable in the facts and circumstances of the case, is a matter which has to be adjudicated after hearing the respondent no.5 and others in accordance with law. In case such proceedings are initiated, the learned Judge has to decide the said aspect after hearing the respondent no.5 in accordance with law.

Considering that the proceedings herein is a reference u/s 30 of the Land Acquisition Act, I find that the findings of the Civil Judge Junior Division, Quepem whilst passing judgment dated 13.08.1999 would be sufficient for the Reference Court to come to the conclusion that the appellant has failed to establish his possession over the acquired portion of the land. There is no dispute that the appellants have not challenged the judgment passed in the said suit and as such the findings therein have attained finality. As such, no infirmity can be found in the judgment of the Reference Court to come to the conclusion that the compensation awarded is to be paid to the respondent no.5 herein. The respondent no.5 has produced the document on record as well as the report of the expert to establish his claim over the acquired portion of the land. The Reference Court as such has rightly come to the conclusion that the compensation awarded is to be paid to the legal heirs of the respondent no.5. At para 12 of the impugned judgment, the Reference Court has found that the acquired land comes within the boundaries of the property inscribed under matriz no.59 belonging to the respondent no.5. The plan produced at AW6/84 has been accordingly accepted by the Reference Court. Considering the said judgment passed in the suit, I find no reason to interfere in the impugned judgment directing that the compensation should be paid to the respondent no.5. The point for determination is answered accordingly.

In view of the above, I find no merit in the above appeal and is dismissed with no order as to costs.