There can be no right to sue
until there is an accrual of right asserted in the suit and
its infringement or a clear threat to infringe that right by
the defendant. In the case of “Daya Singh and another
Vs. Gurudev Singh (Dead) by Lrs. and others”
[(2010) 2 S.C.C. 194], the Apex Court has held that mere
existence of adverse entry in revenue records does not
give rise to cause of action and that the cause of action
to sue accrues when right asserted in suit is infringed or
there is threat to infringe that right. In the case supra, in
paragraph 16 of the plaint, it was pleaded that the right
to sue accrued when such right was infringed by the
defendants about a week back when the plaintiffs had for
the first time come to know about the wrong entries in
the record of rights and when the defendants had refused
to admit the claim of the plaintiffs. It was held that right
to sue accrued when the defendants refused to admit the
claim of the plaintiffs i. e. only seven days before the
filing of the suit and hence the suit cannot be held to be
barred by limitation. Entries in the record of rights have
only presumptive value and they are presumed to be true
until the contrary is proved. In the case at hand, since the
wrong entries in the survey records created a cloud of
suspicion over the claim of lawful possession and
enjoyment of the plaintiffs with regard to the suit
property, the plaintiffs had sent letter dated 6/5/1991 to
the defendant no. 2 informing about the wrong entries in
the survey records and requesting to agree for correction
of the same. Since the defendant did not reply, the
plaintiffs sent legal notice under Section 80 of C.P.C. The
defendants still did not reply. This non-compliance gave
cause of action to the plaintiffs and hence the prayer of
declaration has been sought. The suit, therefore, was not
barred by limitation.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 51 OF 2004
1 Smt. Maina Sada Gaude
Versus
1 State of Goa,
: U. V. BAKRE, J.
PRONOUNCED ON: 23rd November, 2012.
Citation;2013(2)ALL M R 652
This is plaintiffs' second appeal. Heard learned
counsel for both the parties.
2.
The parties shall be referred to in the manner in
which they appear in the cause title of the Regular Civil
Suit No. 64/2001/A.
3. The plaintiffs had filed the said Suit for
declaration that
they
are
in lawful possession
enjoyment of the suit property
and
and that the name of
forest department entered in the other rights column
of Form No. I & XIV of record of rights in respect of suit
property is illegal and incorrect.
A direction
was also
sought to be given to the Land Survey Department,
Panaji, Goa to delete
the name of Forest department
from the other rights column in Form No. I & XIV
in
respect of the suit property and to enter the name of
plaintiffs in that place and in occupants' column.
4.
Case of the plaintiffs, in short, was as follows :-
The suit property known as
“Goulewada” or
“Zambolichem Mol”, admeasuring 38.97.00 hectares,
situated in village
Melaulim
of Taluka Sattari, Goa,
consists of cashew trees, mango trees, jackfruit trees and
teak wood trees and they and their family
members
have been cultivating paddy and nachne in a portion of it
for last more than 45 years. By deed of title of
assignment dated 17/08/1983, the Government of Goa,
Daman and Diu granted an area of 20.5259.62 hectares
of the suit property in favour of late Sada Seguna Gaudo,
the husband of plaintiff no. 1/father-in-law of the plaintiffs
no. 2 to 10, on payment of annual rent of Rs. 31.75. Late
Sada Seguna Gaudo had applied for grant of the said land
in the year 1981 and accordingly the Government had
made the said grant on 17/08/1983. The remaining area
of 18.4440.38 hectares of suit property has been
developed by the plaintiffs for the last more than 50
years
and the plaintiffs are
enjoyment
in possession
and
of the said remaining area and have
perfected their title to the said area by their continuous
possession and enjoyment. In the survey records, the
name of forest department has been wrongly entered in
the other rights column. They had addressed letter dated
6/5/1991 to defendant no. 2
for correction of the survey
records by deleting the name of forest department but
Defendant no. 2 did not reply.
Legal notice dated
20/6/1991, under section 80 of the C.P.C., was served on
the defendants who did not comply with the same.
5.
The defendants resisted the suit and stated as
follows :
The
suit
property
has
always
been
in
possession and enjoyment of defendant no. 2 and in the
year 1977 it was declared as “Reserved Forest”. The suit
property consists
of teak wood trees and other jungle
trees and not cashew trees, mangoes trees and jack-fruit
trees. The plaintiffs have never objected to the survey
records which are in the name of defendant no. 2. The
defendant no. 2 have cultivated teak plantation and the
said teak trees are more than 10 years old. The plaintiffs
are in possession of another property bearing sub-
divisions no. 1 and 3 of survey no. 60 of Village Melaulim
of Taluka Sattari, Goa, in which
they are residing and
having mango trees and jackfruit trees. Even otherwise,
the alleged title of assignment does not relate to the
entire property under survey no. 20/1 and the said title
of assignment does not confer domain of title
property under survey no. 20/1, on the plaintiffs.
of the
The
right conferred under the said title of assignment has
ceased to exist in view of the breach of Article 76(a) of
the Decree no. 3602. The plaintiffs never cultivated any
paddy or nachni in any part of the suit property. The suit
property is a forest and by virtue of notification of the
Government dated 22/07/1993, published in the Official
Gazette, under
section 4 of the Indian Forest Act, 1927,
the same is a reserved forest and such forests get
protection under section 2 of the Forest Conservation Act,
1980. The defendants have been holding auction for the
sale of timber from the suit property since 1979 and it is
false that the plaintiffs had been in possession of the
same at any time.
6.
The plaintiffs examined plaintiff no. 5 namely
Shyam S. Sangodkar as PW1 and four other witnesses
namely Narayan V. Gaude as PW2, Mahadev N. Gawde
as PW3, Harischandra Hazare as PW4 and Govind
Girodkar as PW5. The defendants examined the Range
Forest Officer of Valpoi namely Vikas Dessai
another Range Forest Officer
as DW1,
of Valpoi namely
V. T.
Thomas as DW2, a Forest Guard namely Pandurang
Sawant as DW3 and one Prabhakar Gopal Nadkarni as
DW4. In the course of proceedings, a Surveyor namely
Purshottam
R.
Dalvi
was
appointed
as
Court
Commissioner and he submitted his report and was cross-
examined on behalf of the defendants.
7.
Upon assessment of the entire evidence on
record, the Civil Judge, Senior Division, Bicholim (trial
Court, for short) held that the plaintiffs could not prove
their lawful possession and enjoyment in respect of the
suit property for more than 45 years. He held that the
title of assignment does not confer upon the
plaintiffs
title to the property under survey no. 20/1. He also held
that the Decree no. 3602 dated 24/11/1917 under which
the said assignment was granted stood repealed as per
section 201
of the Land Revenue Code, 1968 and the
same is not saved by any of the provisos to section 201
of Land Revenue Code. He further held that the plaintiffs
could not prove that they were in possession and
enjoyment of the remaining area of 18.440.38 hectares
of survey no. 20/1 for more than 50 yeas. The trial Court
held that under the notification published in the Official
Gazette dated 22/07/1993, the Government proposed to
constitute the forest land in Village Melaulim of Taluka
Sattari as reserved forest under section 3 of the Indian
Forest Act, 1927 which covers part of survey no. 20/1 of
Village Melaulim
of Taluka Sattari.
He also held that
since the notification under Section 4 of the Indian Forest
Act, 1927 has been issued by the Government, declaring
that it has been decided to constitute above land as
reserved forest, the Government acquired certain rights
over the said portion. The trial Court therefore held that
the plaintiffs are not entitled to any reliefs either of
declaration or of correction of survey records.
The suit
therefore came be dismissed.
8.
The plaintiffs then approached the District
Court, Panaji against the judgment and decree passed by
the trial Court and in Regular Civil Appeal no. 159/01, the
learned Additional District Judge(II) Panaji (first Appellate
Court, for short) held that the suit is barred by Law of
Limitation. The first Appellate Court further held that the
suit property is a forest and hence the State Government
had no power to grant the land to any person. The appeal
therefore came to be dismissed.
9.
Aggrieved by the judgment and decree dated
06/05/2004 passed by the first Appellate Court in the said
Regular Civil Appeal no. 159 of 2001 and the judgment
and decree dated 17/01/2001 passed by the trial Court in
Regular Civil Suit no. 62/01/A, the plaintiffs have filed this
second appeal which has been admitted on the following
substantial question of law:
“ Whether source of power to grant land which
is vested on the State Government under
Section 21 of the Land Revenue Code renders
the title of assignment granted in favour of the
appellants herein valid and binding and mere
omission in reciting the correct provision of law
does not denude the power of authority so
long as the
grant can be legitimately re-
traceable to the statutory power under Section
21 of the Land Revenue Code?”
10.
Mrs. Agni, learned counsel appearing on behalf
of the plaintiffs, showed from the Written Statement filed
by the defendants that the original assignment is
admitted by the defendants. She contended that there is
absolutely no evidence on record to show that there was
a breach of Clause no. 76(a) of the said Decree and also
no finding by Lower Courts that there was such a breach.
The learned Counsel pointed out that the issues no. 3 and
4 framed by the trial Court pertained to alleged breach of
Article 76(3) of the Decree and to reversion of the land
back to the Government. According to her, these issues
were material but were treated as irrelevant by the trial
Court which has resulted in miscarriage of justice. The
learned Counsel further submitted that there is power
under Section 21 of the Land Revenue Code, for the
Government to grant land and therefore merely because
some provisions of repealed Decree no. 3602 have been
cited in the title of assignment, the same cannot make
the said assignment as illegal and non-existing. In this
regard the learned counsel relied upon judgment of the
Apex Court in the case of “B.S.E. Brokers' Forum,
Bombay and others v/s. Securities and Exchange
Board of India and others” [(2001) 3 SCC 482] and
“High Court of Gujarat and another v/s. Gujarat
Kishan Mazdoor Panchayat and others” [(2003) 4
SCC 712].
She also placed reliance upon judgment of
the Apex Court in “Nutan Kumar and others v/s. IInd
Additional District Judge and others” [(2002)8 SCC
31]. Learned counsel
argued that the defendants have
not passed any order of reversion of the said land
assigned
in
favour
of
the
plaintiffs
back
to
the
Government. She submitted that there is no cancellation
of the assignment done by means of any documents.
She pointed out from the evidence on record and more
particularly
from
the
evidence
and
report
of
the
commissioner Shri Purshottam Dalvi that there are
cashew trees, jack-fruit trees and mango trees and also
seasonal crops in the suit property.
She showed that
according to the commissioner the soil was more
susceptible for cashew and for fruit bearing trees. The
learned Counsel also invited my attention to Form No. I &
XIV of survey No. 20/1 which mentions the land as dry
crop. She therefore submitted that the finding of the first
Appellate Court to the effect that the land assigned to the
plaintiffs was forest land is erroneous. According to her,
the application of Section 2 of the Forest (Conservation)
Act to the suit property
is misconceived. The learned
counsel therefore contended that on the basis of title of
assignment, the plaintiffs were entitled for declaration of
possession and enjoyment in respect of the land covered
by the said assignment. Insofar as the point of limitation
is concerned, the learned counsel argued that no such
point was raised by the defendants previously and that
the same was neither argued before the trial Court nor
before the first Appellate Court and the plaintiffs were not
heard by the first Appellate Court on this point. She
further argued that in the plaint it was
specifically
pleaded that the cause of action for the plaintiffs arose
on or about 17/05/1991 when defendant no. 2, in spite
of receipt of letter dated 06/05/1991, failed to comply
with the same. She, therefore, urged that the suit, filed
in September 1991, was well within the period of
limitation and not barred by limitation. The learned
Counsel, therefore, urged that the impugned judgments
and decrees of the lower courts be set aside and the suit
be decreed, as prayed for.
11.
Per contra, Ms. Linhares, learned Additional
Government Advocate, appearing on behalf of the
defendants, argued that under Section 106 of the Land
Revenue Code there is specific provision for amendment
to the survey records. Relying upon the judgment of the
learned Single judge of this Court in the case of
“Narendra Voikunt Raikar V/s. Amaral Pereira”
[2007(3) Mh. L. J. 52], the learned Counsel submitted that
the trial Court could not have issued any direction to the
Land Survey Department to correct the survey records.
Insofar as possession and enjoyment of suit property is
concerned, the learned Counsel contended that there are
concurrent
findings of fact given by the Lower Courts
that the plaintiffs have not proved the same. She pointed
out that on this ground itself this court had declined to
grant interim relief to the plaintiffs.
She pointed out that
the title of assignment is of the year 1983 whereas the
assignee namely
Sada S. Gaudo had already expired
prior to that and in the year 1982.
she therefore
submitted that the deed of assignment granted in favour
of dead person is ab-initio void. The learned Counsel also
submitted that Section 201 of the Land Revenue Code
has repealed the Decree no. 3602 under which the said
assignment was made. According to her, plaintiffs' entire
evidence
pertained to survey no. 60/1 and 3 in which
they have their house, mango trees, jack fruit trees and
other fruit bearing trees. Regarding some cashew trees
and mango trees
existing in the suit property, the
learned Additional Government Advocate contended that
there is evidence to show that there was natural growth
of such trees.
She argued that the defence evidence
sufficiently proves the possession of the Government in
respect of the suit property. She contended that there is
absolutely no evidence to prove adverse possession of
the plaintiffs in respect of the land which is not covered
by the deed of assignment, but claimed by the plaintiffs.
She
supported the finding of the first Appellate Court
that the land is forest land covered by Section 2 of the
Forest
(Conservation)
Act
and
hence
the
State
Government could not have assigned the land in favour
of any person. She urged that there is no scope
for
interference with the impugned judgment and decree of
the
lower
courts
and
prayed that the
appeal be
dismissed.
12.
In
rejoinder,
Mrs. Agni,
learned
counsel
appearing on behalf of the plaintiffs, submitted that
defence regarding death of Sada S. Gaudo prior to the
date of assignment was not taken in the Written
Statement and the said point was also not raised before
the trial Court as well as first Appellate Court. Placing
reliance in a decision of the Supreme Court in the case of
“Krishnapasuba
Rao
Kundapur
Vs.
Dattatray
Krishnaji Karani”, reported in AIR 1966 SC 1024, the
learned Counsel submitted
that the defendants cannot
be permitted to raise this point in the Second Appeal.
She submitted that the application for grant of the said
land was made by said Sada Gaudo in the year 1981. She
further argued that in terms document of assignment, the
Government had put the plaintiffs in possession of land
described therein. She therefore argued that possession
of the plaintiffs is proved by the document itself.
13.
I have carefully gone through the entire
material on record in the light of the submissions made
by the learned Counsel, for the parties.
14.
At the outset, I would consider the effect of
death of Sada Gaude prior to the date of title of
assignment. In paragraph (I) of the Written Statement,
the defendants have averred that the title of assignment
does not relate to entire property under survey no. 20/1
and does not confer domain of title to the property under
survey no. 20/1. In paragraph (II), it has been alleged that
right conferred under the title of assignment has ceased
to exist in view of
breach of the Article 76(a) of the
Decree no. 3602. In paragraph (4) of the Written
Statement, it has been pleaded that though the title of
assignment was granted in favour of late Sada Sagun
Gaudo, husband of Plaintiff no. 1, no cultivation of any
crop was made by late Sada or any of the plaintiffs, in the
suit property, due to which part of the suit property which
was assigned to late Sada Sagun Gaudo reverts back to
the State and no right survives in favour of the plaintiffs.
From the above pleadings, it is clear that it is an admitted
fact
that
the
Government
has
admeasuring 20.5259.62 hectares
assigned
the
land
from survey no. 20/1
to late Sada, the husband of plaintiff no. 1, by virtue of
which the plaintiffs were handed over possession of the
said land.
15.
For the first time in this second appeal, the
learned Government Advocate, appearing on behalf of
the defendants,
has raised the point that the title of
assignment is dated 17/12/83, when the assignee namely
Soda Seguna Gaudo had already expired. According to
her, the assignment in favour of a dead person is non-est
and ab-initio void. In this regard, the plaintiffs themselves
had produced before the trial Court the death certificate
of Sada Sagun Gaudo as Exh. PW/1/G which revealed that
he died on 4/7/1982. However, neither during the course
of the Regular Civil Suit nor that of the first Appeal, the
defendants had raised such an objection. It is a settled
principle of law that if a plea is not raised in the trial
Court or first Appellate Court, a party cannot raise it for
the first time before the High Court.
In this regard,
reliance has been rightly placed, by the learned Counsel
appearing
for
the
plaintiffs,
in
the
case
of
“Krishnapusuba Rao Kundapur” (supra). In such
circumstances, the defendants cannot be allowed to raise
this point in this second appeal. The records reveal that
Sada Gaudo had applied for the said grant somewhere in
1981 and the same was processed in the Office of the
Collector of Goa, under file no. RB/AGR/I/35/75, which
culminated into
the said grant of title of assignment
dated 17/12/83.There is, therefore, no substance in the
objection of the learned Counsel for the defendants that
the grant is ab-initio void, as the same was in the name
of dead person.
16.
The title of assignment, along with the plan,
in respect of an area of 20.5259.62 hectares, in the name
of Soda Segun Gaudo, is at Exh. PW1/F and the receipts
of payment of annual rent of Rs. 31.75 are at Exh. PW1/H
colly. The title of assignment says that the Government is
pleased to assign the land under Article 140 of Decree
No. 3602 dated 24/11/1917. Indisputably, till 1/3/1971,
the above Decree was in force. Section 201 of the Land
revenue Code, 1968 (The Code, for short) has repealed
the said Decree as from 1/3/1971. The provisos to Section
201 of The Code cannot protect the said grant made after
1/3/1971.
17.
After the commencement of The Code and
under section 21 thereof, the Government is empowered
to grant land vested in the central Government and
Section 26 thereof empowers the Collector to grant any
uncultivable land for any purpose, subject to Rules made
thereunder.
The
learned
first
Appellate
Court
has
observed that learned Advocate for the defendants has
not disputed the settled proposition of law set out in
various judicial pronouncements which states that wrong
mentioning of provisions of law would not invalidate the
order if a source thereof can be found out either under
general law or a statute law. In the case of “B. S. E.
Brokers' Forum” (supra), the Apex Court has held that
mere omission or error in reciting the correct provisions of
law does not denude the power of the authority from
taking statutory action so long as its action is legitimately
traceable to a statutory power governing such action and
in such cases, Courts will always rely upon Section 114 III
(e) of the Evidence Act to draw a statutory presumption
that the official acts are regularly performed and if
satisfied that the action in question is traceable to a
statutory power, the courts will uphold such State action.
In
the
case
of
“High
Court
of
Gujarat
and
another”(supra), the Apex Court has held that it is trite
that non-mentioning or wrong mentioning of a provision
of law under which power has been exercised would not
invalidate an order if a source therefor can be found out
either under general law or a statute law. It is further held
that it is well settled that when there are two sources of
power, even if one is not applicable, the order will not
become invalid if the power of the statutory authority can
be traced to another source. In view of the above, merely
because the provision of Article 140 of the Decree No.
3602 dated 24/11/1917, has been mentioned in the title
of assignment (Exh. PW1/F), it cannot become invalid.
18.
The rent receipts in Exh. PW1/H colly show that
such rent has been paid from June 1984 till January 1998,
by the plaintiffs. There is no explanation as to why the
Government collected rent if the said assignment was not
valid and if the possession was not handed over to the
plaintiffs. Article 76, which is
one of the terms and
conditions of the said title of assignment, provides
for
cancellation of the assignment if particular amount of
cultivation work is not done within one year; thereafter by
the end of two years; and when in each year, after
cultivation of 1/5 of the land, the cultivated area is not
increased, at least by 1/10 of the total area, till the
cultivation is complete. The defendants in their written
statement have alleged that there is breach of Article
76(a) of the title of assignment and hence the right
conferred under the said title ceases to exist. Admittedly,
the assignment has not been cancelled. Article 76 speaks
about cancellation of the assignment. There is no
provision in the said title of assignment for automatic
cancellation of the same. On the contrary, there is a
covenant that in the event of the assignee failing to
comply with all or any of the conditions, the assignment
shall thereupon be cancelled and the Government shall
have the right to re-enter
the land and enjoyment of
rights of the entire land assigned shall revert in favour of
the Government, etc. However, here also the assignee
can compromise by paying the total initial ground rent
fixed and retain the cultivated portion. Then, if the land is
required for public purpose, the Government, by giving
notice in writing, can terminate the assignment, in which
case the assignee would be entitled to reasonable
compensation. Nothing like the above has happened.
19.
Therefore, there is no material on record to
establish that the land
admeasuring
20.5259.62
hectares given under the title of assignment (Exh.
PW1/F), in possession of the plaintiffs has reverted back
to the Government on account of alleged breach of
Article 76(a) of the said title, or that the assignment has
been cancelled for any other reason, mentioned in the
said title of assignment.
20.
The learned first Appellate Court has held
that in view of Section 2 of the Forest (Conservation) Act
and since the defendants have pleaded that the suit
property is forest land which mainly consists of teak
trees, the State Government had no powers/authority to
grant title of assignment at Exh. PW1/F in favour of Sada
Gaude. It has been further held by the first appellate
court that in the light of observations in the judgment in
the case of “Vithalrao Mahale V/s State of M.P
.”
reported in AIR 1984 M.P., 70 and the provisions of
Section 2 of the Forest (conservation) Act, 1980, the title
of assignment (Exh. PW1/F) cannot be construed to mean
that title to the said land vests in the plaintiffs. Section 2
23
of
the
Forest
(Conservation)
SA 51 of 2004
Act,
1980
imposes
restrictions on the de-reservation of forests or use of
forest land for non-forest purpose. In the case of
“Vithalrao Mahale” (supra), it has been held that the
Government would not be bound by the act of its officers
and agents who act beyond the scope of their authority
and a person dealing with the agent of the Government
must be held to have notice of the limitation of his
authority. Section 4(1) of the Indian Forest Act, 1927
(Forest Act, for short) does not require that the land
should be forest land before a declaration under said
provision is made. For application of Section 2 of the
Forest (Conservation) Act and the ratio in the case of
“Vithalrao Mahale” (supra), first of all, it had to be
established that the land from survey no. 20/1 assigned
under the title of assignment (Exh. PW1/F) was forest
land. The title of assignment does not say that the land
assigned under it is forest land. On the contrary, it
specifically says that the said land is assigned for the
purpose of cultivation. The assignment is after the
coming into force of the Forest (Conservation) Act. The
concerned officers of the Government very well knew
that forest land cannot be assigned to any person. The
Form No. I & XIV of survey No. 20/1 shows the entire land
as dry Crop and not forest land. There is no definition of
'forest' in the Forest (conservation) Act. No issue as to
whether the land assigned under the title of assignment
was forest, was framed by the trial Court. Obviously, no
evidence was led by the parties ,with regard to such a
point. There is no specific finding of the trial Court on this
point. The trial court has taken it for granted that the land
is forest land. For the first time in the Regular Civil Appeal
No. 159/2001, the learned first Appellate court, merely on
the basis of the observations of the Division Bench of this
Court made in the oral judgment in Writ Petition No.
162/87, to explain as to what constitutes a 'forest' and
stating that it is pleaded by the defendants that suit
property is a forest land mainly consisting of teak trees,
has held that the land was forest land and `State
Government had no powers to grant title of assignment.
In fact, the trial Court has held that only a part of survey
No. 20/1 is covered by the notification proposing to
constitute the land as reserved forest and there is no
specific plan showing what part of survey no. 20/1 is
reserved as forest. Even otherwise, the defendants could
not convincingly prove as to which part of survey no 20/1
has been declared as reserved forest. The learned first
Appellate Court has held that though the notification at
Exh. DW1/A declaring suit property as reserved forest has
been issued, however, the same is in the year 1993 and
DW1 Vikas Dessai was unable to say as to what part of
survey no. 20/1 is reserved forest making it clear that
contention of defendants to the above effect does not
help them to prove that suit property is reserved forest.
There is no evidence on record or the finding of the lower
Courts that the teak wood trees were existing in the said
land granted under the title of assignment prior to the
date of said assignment. Hence, it was not proved that
the land assigned to Sada Segun Gaude, under the title of
assignment
(Exh.PW1/F)
circumstances
above,
was forest
Section 2
land.
of
the
In
the
Forest
(Conservation) Act and ratio of the decision of this Court
in Writ Petition No. 162/1987 is not applicable to the
present case.
21.
The official Gazette dated 23/6/1993 at Exh.
DW1/A, produced by the defendants through DW1 reveals
that the Government, under Section 4(1) of the
Forest
Act, has declared that it has been decided to constitute,
inter alia,
part of survey no. 20 of Melaulim Village as
reserved forest. Indisputably, a notification under Section
4(1) of the Forest Act merely declares the intention of the
Government to constitute certain land as a reserved
forest. After that, a proclamation under Section 6 has to
be issued; inquiry under section 7 has to be held, claims
under Section 9 have to be disposed of, etc., etc. Final
notification declaring the proposed forest as reserved
forest is issued under Section 20 of the Forest Act, which
admittedly, in the present case has not yet been issued.
Be that as it may, such process had started in the year
1993 whereas the assignment of title in favour of Sada
Gaude was in the year 1983. Even otherwise, the
defendants could not convincingly prove as to which part
of survey no 20/1 has been declared as reserved forest.
Hence, the said title of assignment, being prior in time as
compared to the declaration under section 4(1) of the
Forest Act, would prevail.
22.
In the circumstances above, the substantial
question, as
framed, is answered in
favour of the
plaintiffs.
23.
Possession of the plaintiffs, in respect of the
land admeasuring 20.5259.62 hectares, by virtue of title
of assignment (Exh. PW1/F) cannot, therefore, be said to
be illegal or unlawful.
24.
As per the condition under Article 14 of title
of assignment, the right to mines, stones, quarries,
springs of mineral waters and also to springs of potable
water is reserved in favour of the Government. The sole
para 1 to this Article says that
assignee can use the
waters that pass through the land assigned to him but
the portion of these waters, which are not required for
agricultural uses of
assignee, continues to vest in the
Government. Article 20 which is also a condition of the
said assignment says that the assignee shall not cut or
fell or destroy
plots,
without
trees which serve as landmarks to his
permission
from
the
land
survey
department. By virtue of Article 24, the assignee is bound
to give the right of way or passage to the neighbours who
do not have any other more accessible or convenient way
or passage to any of the nearest populational centre,
under prior payment of compensation by the neighbours.
Then, as already discussed above, there are powers of
cancellation of the assignment, vested in the Government
and there are also powers of reversion of land, vested in
the Government. In terms of clause (3) of the other
conditions, the assignee cannot, without permission of
the Government, cut or fell any standing timber unless
such action is necessary to prevent imminent danger to
life or property, without prior permission of government.
As per clause no (4) , the assignee cannot transfer the
rights inherent to the said title, without the prior
permission
of
the
Government.
Thus,
there
are
restrictions on the plaintiffs over the enjoyment of the
said granted land. The control of the State Government
is still there on the said land under the
assignment.
The
name
of
the
Government
title of
cannot
therefore be deleted from the occupant's column of
survey records.
25.
Admittedly, the remaining land admeasuring
18.4440.00 hectares from survey no. 20/1 is not part of
the title of assignment. The plaintiffs claim this area by
way of continuous possession and enjoyment of the
same.
The alleged claim of perfection of title to this
additional land is merely on the basis of possession. In
the Written Statement, nature of the right is not pleaded
whether it is by way of adverse possession or by way of
prescription, or otherwise. The trial Court has held that
the plaintiffs have failed to prove that they have acquired
a title to the said land by adverse possession. Before the
first Appellate court, it was contended by the learned
Counsel, appearing on behalf of the plaintiffs, that they
had never claimed adverse possession with respect to
the remaining portion of land but their claim was of
prescription. The learned first Appellate Court rightly
found that in the memo of appeal, at ground
(m), the
plaintiffs had claimed the said land by way of adverse
possession. She has concurred with the findings of the
trial Court, with regard to the claim to additional land
from survey no. 20/1. The substantial question framed in
this second appeal pertains only to the land granted
under the title of assignment. The plaintiffs are not
entitled to any relief with respect to the land which is
beyond the area mentioned in the title of assignment but
included in survey no. 20/1 of Melaulim village. In view of
the above, the plaintiffs cannot make any grievance
about the name of the Government of Goa figuring in the
occupants
column
and
the
name
of
the
Forest
Department figuring in the other rights column of
the
Form No. I & XIV of survey no. 20/1, since the possession
of the said additional area of survey no. 20/1
is
exclusively with the Government.
26.
The learned first Appellate court, on the basis
of facts pleaded and the facts which came on record in
the evidence, has held that the suit is barred by
limitation, in view of the provision of Article 58 of the
Limitation Act. No doubt, under Section 3 of the
Limitation Act, inter alia, it is the duty of the Court to
consider whether the suit is barred by limitation or not,
whether the defendants take such defence or not.
However, Rule 2 of Order VIII of C.P.C. provides that the
defendant must raise by his pleadings all matters which
show the suit not to be maintainable, or that the
transaction is either void or voidable in point of law, and
all such grounds of defence as, if not raised, would be
likely to take the opposite party by surprise, or would
raise issues of fact not arising out of the plaint, as, for
instance,
fraud,
limitation,
release,
payment,
performance or facts showing illegality. Thus, it is
necessary that limitation should be pleaded. It is also not
open to the defendant to raise a substantive plea of
limitation without stating the necessary facts in the
Written Statement. It is a general rule that effect should
be given to a plea of limitation raised at the hearing even
though it is raised for the first time. But the point of
limitation should not be allowed to be raised for the first
time in appeal where it involves the question of fact and
that also without putting the plaintiffs on notice. In
paragraph 5
of the plaint,
the plaintiffs have pleaded
that since they found that the name of forest department
was wrongly entered in the other rights column in the
survey records, the plaintiff no. 5 vide letter dated
6/5/1991 addressed to the defendant no. 2 requested to
agree for the correction of survey records, but the
defendant no. 2 did not respond. In paragraph 9 of the
plaint, the plaintiffs have pleaded that the cause of action
arose on or about 17th May 1991 when the defendant no.
2 inspite of receipt of letter dated 6/5/1991
failed to
comply with the same. In paragraph 11 of the plaint, it
was specifically pleaded that the suit is not barred
by
the law of limitation. The suit was filed on 21/9/1991.
The defendants, in their Written statement, did not deny
the contents of paragraphs 9 and 11 of the plaint. The
issue of limitation was a mixed question of law and facts,
in the present case. There was no issue of limitation
framed by the trial Court and no evidence was led on this
point. The trial Court had not dealt with the point of
limitation as the same was not raised before it. In the
Regular
Civil Appeal,
the
learned
Counsel
for
the
defendants had not raised the point of limitation. The first
Appellate court could not have considered the point of
limitation suo motu without putting the plaintiffs to
notice.
27.
Be that as it may, Article 58 of the Limitation
Act says that to obtain any other declaration, the
limitation would be three years from the date when the
right to sue first accrues. There can be no right to sue
until there is an accrual of right asserted in the suit and
its infringement or a clear threat to infringe that right by
the defendant. In the case of “Daya Singh and another
Vs. Gurudev Singh (Dead) by Lrs. and others”
[(2010) 2 S.C.C. 194], the Apex Court has held that mere
existence of adverse entry in revenue records does not
give rise to cause of action and that the cause of action
to sue accrues when right asserted in suit is infringed or
there is threat to infringe that right. In the case supra, in
paragraph 16 of the plaint, it was pleaded that the right
to sue accrued when such right was infringed by the
defendants about a week back when the plaintiffs had for
the first time come to know about the wrong entries in
the record of rights and when the defendants had refused
to admit the claim of the plaintiffs. It was held that right
to sue accrued when the defendants refused to admit the
claim of the plaintiffs i. e. only seven days before the
filing of the suit and hence the suit cannot be held to be
barred by limitation. Entries in the record of rights have
only presumptive value and they are presumed to be true
until the contrary is proved. In the case at hand, since the
wrong entries in the survey records created a cloud of
suspicion over the claim of lawful possession and
enjoyment of the plaintiffs with regard to the suit
property, the plaintiffs had sent letter dated 6/5/1991 to
the defendant no. 2 informing about the wrong entries in
the survey records and requesting to agree for correction
of the same. Since the defendant did not reply, the
plaintiffs sent legal notice under Section 80 of C.P.C. The
defendants still did not reply. This non-compliance gave
cause of action to the plaintiffs and hence the prayer of
declaration has been sought. The suit, therefore, was not
barred by limitation.
28.
Insofar as the prayer to direct the Land Survey
department to amend the survey record, is concerned, it
is well settled that such a direction cannot be given by
Civil Court in view of express bar under Section 106 of
The Code which provides that no suit shall lie against the
Government or any officer of the Government in respect
of a claim to have an entry made in any record or register
that is maintained under this Chapter or to have any such
entry omitted or amended. Such function is assigned to
revenue authorities under The Code. In the case of
”Narayan
Mugu
Teli
(since
deceased)
Vs.
Ramchandra Mugu Teli” [2004 (3) All M.R. 880], it has
been held that it is neither the function of Civil Court to
issue direction for making or deleting entries in the
record of rights and that this function is assigned to the
revenue authorities under the Maharashtra Land Revenue
Code. It is further observed that the proper relief which
could be prayed for was declaration of the title to the suit
land and once such a declaration is obtained from the
Court, the revenue authority will have to make or correct
the entries accordingly in the record of rights in respect
of the suit land. The provisions of The Code are almost
similar to the Maharashtra Land Revenue Code. In the
case of “Anandi Bhicaro Veluskar and others Vs.
Kustanand Vithu Veluskar and others” [2006 (6)
Bom. C.R. 384], the learned Single Judge of Panaji Bench
this Court has relied upon the judgment in the case of
“Narayan Mugu Teli” (supra) and has held that the
Appellate Court could not have directed insertion of the
names of the plaintiffs in the survey records. Again in the
case
of
“Narendra
Voikunt
Raikar
Vs.
Amaral
Pereira” [ 2007 (3) Mh. L.J.,252], a similar view has been
taken. Therefore, the question of directing amendment to
the survey records does not arise.
29.
The plaintiffs would therefore be entitled only
to a declaration that they are in lawful possession and
enjoyment of the land admeasuring 20.5259.62 hectares
which is part of survey no. 20/1 of Melaulim Village of
Sattari Taluka, by virtue of the title of Assignment which
is at Exh. PW1/F. The impugned judgments are therefore
not sustainable insofar as the above relief is concerned.
30.
In the result, the Appeal is partly allowed.
(a) The impugned judgments of the lower
courts are quashed and set aside.
(b) The Regular Civil Suit No. 64/2001/A
is partly allowed.
(c) The plaintiffs are declared to be in
lawful possession and enjoyment of the
land admeasuring 20.5259.62 hectares
from survey no. 20/1 of Melaulim
Village of Sattari Taluka.
(d) Appeal stands disposed of accordingly.
Parties to bear their own costs.
U.V. BAKRE, J.
MV
No comments:
Post a Comment