The Reference Court in the impugned Order has
observed that the pleadings of the Appellant are devoid of the
essential ingredients of adverse possession which are (i) the
actual possession, (ii) continuous possession, (iii) possession
with necessary animus on the part of the person claiming title
by adverse possession. Written statement of the Appellant
confirms the observations. The pleadings of the Appellant are
silent on the area of property “CONDI”, the overt acts of
possession over the property and the manner in which the
possession has been hostile to Respondent No.1. The Reference
Court has further noted that there is no evidence produced by
the plaintiff in support of the claim of acquisition of title to the8
first appeal no.248 of 2005
property by adverse possession. In the absence of the necessary
pleadings, the Appellant could not have led any evidence on his
claim of title by adverse possession in respect of property
“CONDI”. It is also undisputed position that in the acquired
land of 9,800 sq. meters of survey No.69/1 there were no
houses or trees and it was a bharad and rocky land. Therefore,
any reference to the houses by the Appellant in his evidence
could not have been related to the land acquired. In the
circumstances, in my opinion, the finding of the Court of
Reference that the Appellant has failed to establish his title to
part of the acquired land by adverse possession does not require
any interference.
first appeal no.248 of 2005
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 248 OF 2005
Gopal Padmanaba Chari,
versus
1. Communidade of Quitol,
CORAM : SMT. R. P. SONDURBALDOTA, J.
DATE : 15TH SEPTEMBER, 2011.
This appeal is directed against the award dated
3-6-2005 passed by the IIIrd Additional District Judge, South2
first appeal no.248 of 2005
Goa, Margao in Land Acquisition Case No. 70 of 1993 which
was a reference under Section 30 of the Land Acquisition Act,
1894 for apportionment of compensation awarded by the Land
Acquisition Officer. The impugned award rejects the claim of
the Appellant and grants the claim made by Respondent No.1.
Respondent No.2 in his written statement before the Reference
Court made a categorical statement that he has no interest in the
property and hence claims no right to any part of compensation
payable therefor. The challenge to the impugned award is on
merits with a contention that the Reference Court has not
properly appreciated the evidence led by the parties before it.
2. By notification bearing No.22/174/89/RD dated
13-12-1989 issued under Section 4 of the Land Acquisition Act,
1894 and published in the Official Gazette dated 4-1-1990,
several lands were acquired for setting out an Institute of Safety
and Environment Management for Petroleum Industries of3
first appeal no.248 of 2005
India at Betul, Quitol Village of Quepem Taluka. One of the
lands acquired was 9,800 sq. meters from survey No.69/1. By
the award of the Land Acquisition Officer compensation of
Rs.16,636/- was awarded for the said land. The matter came to
be referred to the District Court under Section 30 of the Land
Acquisition Act since there were 5 interested parties claiming
ownership of the land. All the parties filed their written
statements. However, at the hearing of the reference, party
Nos.2, 4 and 5 remained absent and the reference proceeded
ex-parte against them. There is no challenge by these parties to
the award of the Reference Court. They have thus accepted the
award.
3. In view of the acceptance of the award by original
party Nos.2, 4 and 5, the dispute in the challenge to the award is
restricted to the claims made by original party No.1 i.e.
Respondent No.1 and original party No.3 i.e. the Appellant.4
first appeal no.248 of 2005
Therefore, the pleadings of these two parties alone are required
to be looked into. Respondent No.1 is Communidade of Quitol.
It claims in its written statement that it is the owner of property
known as “OTHIMOLLO' and “CHINCHAMOLLA” bearing
matriz No.161. It contends that the land acquired admeasuring
9,800 sq. meters forming part of survey No.69/1 is a part of the
property of “OTHIMOLLO” and “CHINCHAMOLLA”. The
written statement refers to original party No.4 and one Ruin
Tato Vaz whose names had been included in Form 1 and XIV of
survey No.69/1 in the occupants' column to contend that the
names have been wrongly included in the forms and that they
have no right to the property. This claim is seen to be accepted
by the two persons by not challenging the award. The Appellant
in his written statement does not dispute that Respondent
No.1 is the owner of the property “OTHIMOLLO” and
“CHINCHAMOLLA”. He, however, claims to be a
co-sharer of a portion of that property having acquired title to it5
first appeal no.248 of 2005
by adverse possession. He contends that property by name
“CONDI” bearing matriz No.176 is a part of property
“OTHIMOLLO” and “CHINCHAMOLLA” and covers survey
Nos.68/1, 69/1 and 70/10 of village Quitol. He claims to have
acquired title to property “CONDI” by adverse possession since
he and his ancestors have been holding and enjoying the same
for a period of more than 100 years. The written statement,
however, does not set out the details of the occupation of the
Appellant and his predecessors.
4. On the pleadings between the parties, the Reference
Court framed the following 4 issues:-
1. Whether the Party no. 1 proves
that the acquired land is part
and parcel of its property
known as “Othimollo” and
“Chinchamolla” bearing Matriz
no.161?6
first appeal no.248 of 2005
2. Whether the Party no.3
proves that the acquired land
forms part and parcel of
property “Condi” bearing
Matriz No.176?
3. Whether the Party no.3
proves that the said property
was owned, possessed and
enjoyed by him and other cosharers since last more than
100 years and that they have
acquired title by adverse
possession?
4. Whether the Party no.5
proves that the acquired
land is part and parcel of
his property known as
“Orzuna Conda”?
By the impugned Order, it answered Issue No.1 in
the affirmative and Issue Nos. 2 to 4 in the negative.
5. The affirmative answer to Issue No.1 is obvious in
view of the pleadings and the admission by the Appellant
contained in the pleadings. The scope of the appeal therefore7
first appeal no.248 of 2005
gets further narrowed down to the claim made by the Appellant
of title to part of the property of “OTHIMOLLO” and
“CHINCHAMOLLA” which part has been described as
“CONDI” by adverse possession.
6. The Reference Court in the impugned Order has
observed that the pleadings of the Appellant are devoid of the
essential ingredients of adverse possession which are (i) the
actual possession, (ii) continuous possession, (iii) possession
with necessary animus on the part of the person claiming title
by adverse possession. Written statement of the Appellant
confirms the observations. The pleadings of the Appellant are
silent on the area of property “CONDI”, the overt acts of
possession over the property and the manner in which the
possession has been hostile to Respondent No.1. The Reference
Court has further noted that there is no evidence produced by
the plaintiff in support of the claim of acquisition of title to the8
first appeal no.248 of 2005
property by adverse possession. In the absence of the necessary
pleadings, the Appellant could not have led any evidence on his
claim of title by adverse possession in respect of property
“CONDI”. It is also undisputed position that in the acquired
land of 9,800 sq. meters of survey No.69/1 there were no
houses or trees and it was a bharad and rocky land. Therefore,
any reference to the houses by the Appellant in his evidence
could not have been related to the land acquired. In the
circumstances, in my opinion, the finding of the Court of
Reference that the Appellant has failed to establish his title to
part of the acquired land by adverse possession does not require
any interference.
7. Shri R. G. Ramani, learned Counsel for the Appellant
then submits across the bar that the Appellant, if not as an
owner of the property acquired, but as a person in possession of
part of the property, would be entitled to receive some share in9
first appeal no.248 of 2005
the compensation awarded. Firstly, this contention ought to
have been taken up as an alternate plea in the written statement
which has not been done. Secondly, the claim of possession by
the Appellant is based on the claim of having houses and fruit
bearing trees enjoyed by him on the land in question. Since the
land acquired had no houses or trees on it and it was a bharad
and rocky land any claim of the Appellant on possession can
also not be sustained. Hence, the appeal is dismissed. No order
as to costs.
SMT. R. P. SONDURBALDOTA, J.
RD
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