Law Web: Notice u/s 80 of cpc-how to be interpreted

In so far as Civil Suit No. 100/1981 is concerned in

paragraph 14 of the plaint, Chowgules have averred that they have

given notice under Section 80 of C.P.C. to the defendants on

04.08.1973.

In answer to this, in paragraph 14 of their written

statement, the Government has admitted that the notice under Section

80 of C.P.C. was served on them on 04.08.1973. The Government did

not allege that the said notice was defective. No issue was framed by

the trial Court on the question of lack of or defective notice under

Section 80 of C.P.C. In the case of “Dhian Singh Sobha Singh and

another V/s Union of India” ( AIR 1958 SC 274), the Apex Court

has held that though the terms of Section 80 of C.P.C. are to be

strictly complied with, it does not mean that the terms of notice

should be scrutinized in a pedantic manner or in a manner completely

divorced from common sense. A little common sense must be

imported in the notice under Section 80 of C.P.C. The copy of the

said notice is at Exhibit 162. In paragraph 1 thereof, all the properties

claimed by Chowgules have been mentioned. It is stated in paragraph

3 of this notice that Chowgules are in exclusive possession of the said

properties. It is stated that the Forest Department has been making

attempts to interfere with the possession of Chowgules. It is clearly

stated that cultivation of cashew seedlings has been done by the

Forest Department and that Chowgules desire to file suit against the

Government. It is true that Chowgules had requested the Government

by the said notice to stop the illegal occupation of any part of the

property “Chactam” in village Mangal and not to disturb their

peaceful possession and enjoyment of the said property, failing which

Chowgules would be compelled to file a suit to defend their rights. It

may be that the said notice puts stress on the property 'Chactam'.

However, it can certainly be said that the Government had understood

that the said notice pertains to the properties mentioned in paragraph

1 of the said notice, which are subject matter of the suit. Therefore,

the Government had not taken any objection regarding the same. It

should be kept in mind that the said notice was given in 1973 and the

suit was filed in the year 1974. Thereafter, the parties had led

voluminous evidence and it is only in the year 2003 that it has been

held that the suit is bad for notice under Section 80 of C.P.C. In the

case of “Ghanshyam Dass and others V/s Dominion of India and

others” reported in (1984) 3 SCC 46, the Apex Court has held thus :

“The whole object of serving a notice under

S. 80 is to give the Government sufficient

warning of the case which is going to be

instituted against it and that the Government, if

it so wished can settle the claim without

litigation or afford restitution without recourse

to a court of law. Though the terms of Section

80 have to be strictly complied with, that does

not mean that the notice should be scrutinised

in a pedantic manner divorced from common

sense. The point to be considered is whether the

notice gives sufficient information as to the

nature of the claim such as would enable the

recipient to avert the litigation. If the notice

substantially fulfills its work of intimating the

parties concerned generally of the nature of the

suit intended to be filed, it would be sufficient

compliance of the section. While interpreting

the pre-amended section the courts must have

due regard to the change in law brought about

by sub-section (3) of Section 80, which shows

legislative acceptance of the rule of substantial

compliance instead of strict compliance.

The question as to whether a notice

under Section 80 is valid or not is a question of

judicial construction. Section 80 of the Code is

but a part of the Procedure Code passed to

provide the regulation and machinery, by means

of which the courts may do justice between the

parties. It is therefore merely a part of the

adjective law and deals with procedure alone

and must be interpreted in a manner so as to

subserve and advance the cause of justice rather

than to defeat it. As far as possible, no

proceedings in a court of law should be allowed

to be defeated on mere technicalities. This is

the principle on which ours laws of procedure

are based.”

35.

In view of the discussion supra, the suit filed by Chowgules

could not have been dismissed on the ground of want of notice under

Section 80 of C.P.C. Point (a) is answered in the negative.

IN THE HIGH COURT OF BOMBAY AT GOA

FIRST APPEAL NO. 238 OF 2003

Mr. Yeshwantrao D. Chowgule,

Versus

1) Government of India,

CORAM : U. V. BAKRE, J.

Pronounced on : 10/5/2013.

Both the above appeals are being disposed of by this

common judgment, since they are inter-connected and the suit

property claimed by the Government is the same, in both the suits.

First Appeal No. 238/2003 has been preferred by the legal

representatives of Yeshwantrao D. Chowgule against the judgment,

order and decree dated 09/06/2003, passed by learned District Judge

South Goa, in Civil Suit No. 100 of 1981(New) / Civil Suit No. 08 of

1974(Old), whereby the said suit filed by said Yeshwantrao

Chowgule against the Government of India; Government of Goa;

Forest Officers of Goa Government (defendants no. 1 to 5),

Comunidade of Balli (defendant no. 6) and one Chandulal Chotai

(defendant no. 7) was dismissed.

First Appeal No. 45 of 2006 has been filed against the

judgment, order and decree dated 03/03/2004, passed by the Learned

Additional District Judge, South Goa,

in Civil Suit No.

158/1981(New) / 04/1980(Old), whereby the said suit filed by Union

of India, through Development Commissioner of Government of Goa,

Daman and Diu against Uttam Balsu Dessai; Bhadru Balsu Dessai;

Smt Laxmi Datta Dessai (defendants no. 1 to 3 who died and whose

legal representatives have been brought on record) and Yeshwantrao

D. Chowgule (defendant no. 4), came to be dismissed.

Mr. Yeshwantrao Chowgule, since deceased and his

legal representatives shall hereinafter be referred to as 'Chowgules';

Government of India, Government of Goa and Forest Officers shall

hereinafter be referred to as the 'Government'; Comunidade of Balli

shall hereinafter be referred to as the 'Comunidade'; and Uttam

Dessai, Bhadru Dessai and Laxmi Dessai and their legal

representatives shall hereinafter be referred to as 'Dessais'.

Chowgules had filed the Civil Suit No. 100 of 1981(New)

/08/1974(Old) for declaration that they are the owners of the twelve

suit properties named and described in the plaint; for direction to the

Government to remove the 300 cashew trees planted by them in the

property 'Chactam'; and for permanent injunction to restrain the

defendants, etc., from interfering with or disturbing the possession of

the plaintiffs with respect to the suit properties. In the said Civil suit

no. 100/1981, Comunidade had filed counter claim praying for

various reliefs. In the said Civil Suit No. 100/1981, even Chandulal

Chotai (defendant no. 7) had filed counter claim for various reliefs.

Government had filed the Civil Suit No. 158/1981(New) /

04/1980(Old) for various reliefs. A declaration was sought that the

forest declared as National forest called “Mangal” or “Chafeancho

Dongor” and “Codelacho Dongor” bearing survey numbers 2, 3, 5, 9,

10, 12, 15, 16, 18/1, 18/2, 19, 20 and 25/3 of village Mangal in

Quepem Taluka is of the ownership of Government. A prayer for

setting aside order dated 5/1/1979 passed by the Inspector of

Cadestral Survey/Survey and Settlement Officer, Panaji and also to

set aside the entries, if any, or amendment of survey numbers and the

names of owners carried out in pursuance of the said order dated

5/1/79 in Case No. LS/CS/ENQ/1/88/76, was also sought.

Mr. Chandulal Chotai, after filing the Written Statement

and Counter Claim in the said Civil suit No. 100/1981 started

remaining absent. The Suit proceeded ex-parte against him. His

Counter Claim was also dismissed. In First Appeal No. 238/2003, he

was shown as respondent no. 7. However, it was reported that he died

on 11/12/2002, which date is prior to the date of judgment and decree

in Civil Suit no. 100/1981. The legal representatives of deceased

respondent no. 7 have not been brought on record, in First appeal No.

238/2003 and the appeal has abated as against him, in terms of order

dated 05/08/2005 passed by the Registrar of this court. There is,

therefore, no need to go into the details of the claim of said Chandulal

Chotai.

The Counter claim filed by the Comunidade, in Civil

Suit No. 100/1981, was also dismissed and Comunidade had filed

First Appeal No. 321 of 2003 against the judgment and decree dated

09/06/2003 in Civil Suit No. 100/1981. However, after filing the

Appeal, Comunidade appears to have lost interest. Advocate Mr.

Iftikhar Agha, who was appearing on behalf of the Comunidade, on

4/01/2013, made a statement that he has already notified the

Comunidade that he would not appear in the matter and that the

Attorney of Comunidade has received the said notice. A pursis was

filed by Mr. Agha for discharge and a copy of the notice was annexed

to the same, which showed the remark made by the Attorney of

Comunidade. Learned Counsel, Mr. Agha was, therefore, discharged

as per his request, on 4/01/2013. Opportunities, to appear, were given

to the Comunidade, thereafter, on 10/01/2013, 11/01/2013 and

18/01/2013, on which dates learned Counsel for other parties argued

at length. On all the above three dates, neither any representative of

the Comunidade nor any lawyer on its behalf appeared. On

18/01/2013, an order was made by this Court that the First Appeal

No. 321/2003 filed by Comunidade stands dismissed for default. In

the circumstances above, though the Comunidade had taken part in

the proceedings of Civil Suit No. 100/1981 and had examined

witnesses namely their attorney, Rohidas Fal Dessai as DW.6, an

Expert Engineer, Vicente Correira Afonso as DW.7 and one Shaba

Gaunkar as DW. 8, there is no need to go into minute details of the

claim of the Comunidade, as it has no interest in the suit properties

now. However, the evidence on record, in the cross-examination done

by the learned Counsel for the Comunidade and the evidence of

witnesses of Comunidade would be relevant, for deciding the present

appeals.

Chowgules have alleged that they are the owners of

following 12 properties (suit properties):

(i)

Parnachi Nomoss

Matriz No. 2

Village Mangal

(ii) Chanpeaparna Matriz No. 3 “ “

(iii) Bisiguirem Matriz No. 4 “ “

(iv) Camrem Matriz No. 5 “ Cordola

(v) Vaingan Chactam Matriz No. 7 “ Mangal

(vi) Sorod

Matriz No. 10 “ Cordola

(vii) Ganeaparnantil Chactam Matriz No. 12 “ Mangal

viii Ghorbhat Matriz No. 13 “ Mangal

ix Dolcumby Matriz No. 14 “ “

x Chactam Matriz No. 17 “ “

xi Culmantil Bandi Matriz No. 33 “ “

xii Gulmantil Bandi Matriz No. 35 “ “

10.

Chowgules have stated the details of various Sale Deeds

by which they allegedly purchased the suit properties from persons

whose names were mentioned in the Revenue Register of Village

Mangal of Quepem taluka. The boundaries of each of the suit

properties and the names of the vendors have been stated. It is alleged

by Chowgules that they subsequently brought the areas from the suit

properties under extensive plantation; constructed buildings; dug

wells, etc. and thereby established their physical possession and

enjoyment of the suit properties. According to Chowgules, on

30/12/1972, Mr. Suresh Krishna Rane and Mr. Pandhari Dessai

started placing a board in the property of Chowgules claiming that the

land measuring 40 hectares belongs to Forest Department. It is the

case of Chowgules that on the same day, the Conservator of Forests

along with Range Forest Officer, Pernem, Range Forest Officer,

Quepem and two others came to the site and demolished the

compound wall of Chowgules and on the resistance being put by the

personnel of Chowgules, they were threatened to death. A Criminal

Complaint was lodged under No. 68 of 1973 in the Court of Judicial

Magistrate First Class, Quepem on 8/01/1973, against the illegal

actions of said Government officers. The learned J.M.F.C. dismissed

the said complaint, on the ground that it was property matter. But

Revision Application filed by Chowgules was granted in their favour,

though subsequently, the said Criminal complaint got dismissed for

default. Chowgules then gave notice under Section 80 of C.P.C. to the

Government. Shri V. K. Chowdhari, the Dy. Collector and Estate

Officer served a notice under section 4(1) of Public Premises

(Eviction of Unauthorised Occupants) Act, 1971 to Chowgules to

vacate the Government land at Mangal within 15 days from the date

of receipt of the notice or to show cause as to why an eviction order

should not be made against them. Chowgules filed Civil Suit No.

100/1981.

11.

Government filed its Written statement in the said Civil

suit No. 100/1981(New) / Civil Suit no 08/1974(Old), thereby

denying the case of Chowgules, and alleging that the said property

described under Matriz Nos. 2, 3, 4, 5, 7, 10, 12, 13, 14, 17, 33 and

35 falls within Government forest situated at Mangal and known as

“Chafeacho Dongor” and Codelacho Dongor”.

12.

The recent survey numbers of the property, under the

Land Revenue Code, 1968, were not stated by any of the parties in

the said Suit No. 100/1981(New).

13.

According to the Government, after the enactment of the

Goa, Daman and Diu Land Revenue Code, 1968, the survey of the

forest was made under the provisions of the Code in the year 1970

and the said Government forest was found recorded in survey records

of survey nos. 2, 3, 5, 9, 10, 12 , 15, 16, 18/1, 18/2, 19, 20, 25/3 of

Mangal village of Quepem Taluka. As the names of Dessais are

shown in the index of land in form no. III of village 'Mangal'

pertaining to survey nos. 5, 12, 15 and 18/2 whereas the name of

Chowgules are shown under surveys no. 3 and 16, the Government

filed civil suit No. 158/1981.

14.

Case of the Government, in short is as follows:

They are owners in possession of “Mangal Forest” or

“Chafeancho Dongor” and “Codelacho Dongor” situated in Mattu Xet

Ward of village Mangal. The records of the Forest Department show

that the said village was demarcated as far back as in the year 1903 by

placing stone cairns as boundary marks. The said forest was listed as

Government forest in the list of Government forests published in the

Agricultural Department of the then Government of Goa, Daman and

Diu on 9/5/1917. The said forest was then shown in the list of

Government Forests in 1933, prepared in terms of the Legislative

Diploma No. 644 dated 27/3/1933, enacted by Portuguese

Government. The said Mangal forest is bounded on the East by the

village limits of Nunem and village limits of Neturlim of Sanguem

Taluka, on the West by the village boundary of Cazur of Quepem

Taluka and village boundary of Gaondongrem of Canacona Taluka,

on the South by the village boundary of Gaondongrem of Canacona

Taluka and on the North by village boundary of

Neturlim

Sanguem Taluka. The said forest was shown as Government Forest

in the Government Gazette No. 2, Series II dated 11/1/1951. Mangal

forest was first surveyed and demarcated by the Government by

placing stones and cairns as boundary marks in 1903; again in 1917;

again in 1933; again in 1967 and this continued every year. In the

year 1965, by Notification dated 1.2.1965, published in the

Government Gazette No. 5 dated 5/2/1965, all the forests of Goa,

Daman and Diu including Mangal Forest were declared as reserved

forest under the Indian Forest Act. Then came the Goa, Daman and

Diu Land revenue Code, 1968. In the survey records prepared under

the provisions of the said Code, in the year 1970, the said Forest has

been surveyed and demarcated under Survey nos. 2, 3, 5, 9, 10, 12,

15, 16, 18/1, 18/2, 19, 20 and 25/3 of village Mangal in Quepem

Taluka. The names of Dessais are shown in the Index of Land of

Form No. 3 under survey nos. 5, 12, 15 and 18/2, whereas, name of

Chowgules is show in respect of survey nos. 3 and 16. The Index of

land is shown in the name of one Domingo Furtado under survey no.

25/3 and the names of

Ganesh Baba Gaonkar and Xaba Babu

Gaonkar also figure in the index of land of the same survey holding.

The index of land in respect of survey holdings no. 10, 12, 15, 16,

18/2, 19, 20 and 25/3 also show the name of Forest Department. The

survey holdings no. 3, 5, 12, 15, 16 and 18/2 were subject matter of

the claim of Dessais before the Inspector of Cadestral Survey and

Settlement Officer, Panaji. The Inspector of Cadestral Survey/Survey

Settlement Officer, Panaji, by his order dated 5/1/1979 in Case No.

LS/CS/ENQ/1/88/76, held that the land in dispute namely part of

survey no. 12 of an area of 55,600 square metres, part of survey no.

15 of an area of 2,81,600 square metres, part of survey no. 16 of an

area of 7400 square metres, part of survey no. 5 of an area of

1,37,600 square metres and part of survey no. 3 of an area of 2,46,600

square metres as shown in red colour in the attached plans and survey

no. 18/2 of village Mangal of Quepem Taluka is private property. The

said order dated 5/1/1979 is wrong without joinder of proper parties

and without necessary evidence required for deciding the claim.

15.

Dessais (defendants no. 1 and 2) filed their written

statement, in Civil Suit No. 158/1981, wherein they described seven

properties with boundaries namely: (i) Culna bearing land registration

no. 16079 and matriz no. 28; (ii) Mattushet bearing land registration

under no. 12427 and matriz no. 32; (iii) Gorbhat bearing land

registration no. 23542 and inscribed under no. 12425 and matriz no.

19; (iv) Gorbatacodil Sorod bearing land registration no. 12426 and

matriz no. 21; (v ) Fondem bearing land registration no. 23543 and

matriz no. 16; (vi) Telachinomous bearing matriz no. 26; and (vii)

Bondhovol bearing matriz no. 31 and stated that these properties

belong to them and are in their exclusive possession for more than

100 years. They gave boundaries of each of the above properties.

They further alleged as follows:- The suit is bad for mis-joinder of

Chowgules who were not party in the proceedings before the Survey

Officer, Panaji. The suit is filed beyond the period of limitation. The

suit is also bad for mis-joinder of party as, Smt Laxmi Datta Dessai

(defendant no. 3) has already died on 4/5/1979. It is false that

Mangal Forest has the boundaries as stated in the plaint or that it was

surveyed and demarcated by stones and cairns as boundary marks in

1903 or in 1917 or in 1933 or again in 1967. Admittedly, within the

boundaries mentioned in paragraph 3 of the plaint, there exists

private properties belonging to the said defendants and also to others.

That none of their said properties is bounded by the Government

Forest. For the first time sometime in the year 1964 and 1965, the

representatives of the plaintiffs without notifying Dessais put some

cairns in part of the properties and Dessais had objected for the same.

The said cairns were put on the boundaries of paddy field of the said

defendants without verifying the boundaries and including also one of

the properties of Dessais having jack fruit trees, mango trees, arecanut

and cashew trees.

It is false that Mangal Forest known as

“Chafeancho Dongor and Codelacho Dongor” consists of land

surveyed under nos. 2, 3, 5, 9, 12, 15, 16, 18/1, 19, 20, 25/3 as

alleged. Dessais are owners in possession of the properties situated

at Village Mangal and consisting of trees of jack fruit, mango,

coconut, arecanut, cashew and other trees and also paddy field.

16.

Chowgules filed their written statement in Civil Suit No.

158/1981. They claimed that the suit is bad for mis-joinder as they

were not party to the Case No. LS/CS/ENG/1/88/76, before the

Revenue Court. They alleged that they have filed Civil Suit No.

08/1974 against the Government which is pending and the main

issues involved in that suit are substantially the same in this suit.

They also denied the pleadings of the Government regarding survey

and demarcation of the forest by placing stones and cairns as

boundary marks. They stated that if the boundary shown in the plan

by the Government be correct, then the said Mangal forest will cover

the whole village of Mangal and no one else would have any piece of

land in that village and said situation would be contrary to the village

survey records. Chowgules stated that the Gazette no. 2, Series II

dated 11/1/1951 only mentions the approved names of forests in all

concerned villages without specifying the extent and their exact

location. They stated that no forest known as “Chafeancho Dongor”

and “Codelacho Dongor” is mentioned in the said Gazette.

17.

Based on the rival pleadings of the parties, the trial Court

had framed various issues in both the suits.

18.

With consent of the parties, Shri Purshottam R. Dalvi,

Assistant Surveyor of Works Division, P.W.D, was appointed as a

Commissioner in order to inspect the properties described in the

Revenue Office Quepem under Matriz nos. 2, 3, 4, 5, 7, 10, 12, 13 ,

14, 15, 33 and 35 and to find out the following:

(a) Whether or not the said properties fall within the

Government forest situated at Mangal village,

Quepem Taluka and known as 'Champeacho Dongor'

and 'Codelacho Dongor';

(b) Whether or not the said properties form part of

the land notified as National Forest by the erstwhile

Portuguese Government under Government Gazette

no.2, Series II, dated 11/1/1951 and whether the said

land was declared as reserve forest under the Indian

Forest Act;

( c) Whether there are boundary marks implanted

according to the Portuguese law - Leis da matas;

(d) Whether there are any other boundary marks

like cairns fixing the boundary of the said forest in

the disputed area. If so and if possible, the

Commissioner should give the age of the boundary

marks and cairns; and

(e) The suit land be demarcated based on title deeds

or matriz documents or any other title documents

produced by the plaintiff, the defendant no. 2,

defendant no. 6 and defendant no. 7 and to show or

demarcate the land showing which of the party is

entitled for suit lands or or portion of the suit lands

based on documents referred above.

19.

The said Commissioner Shri Dalvi, submitted his report

dated 18/11/1987, for the purposes of both the suits, which is at

Exhibit CW.1/A in suit no. 100/1981. Chowgules did not take any

objections to the said report. As there was objection from

Comunidade and Chandulal Chotai to the said commissioner's report,

he was permitted to be cross-examined. It was ordered that evidence

of the commissioner shall be considered in the light of other evidence

to be produced by the parties. In that Civil Suit No. 100/1981,

Chowgules then examined two of their attorneys namely, Mr. Kishor

Bandekar as PW.1 and Mr. Gunaji Faldessai as PW.2. Chowgules

also examined one Chartered Accountant namely Pramod Chandra

Deshpande as PW.3. The Government examined Forest Surveyor

namely, N. Subramaniam as DW.1, Retired Range Forest Officer, Shri

Mukund P. Dessai as DW.2, Assistant Conservator of Forest, Mr.

Ragunath Dessai as DW.3, Forest Guard Shri

Shiva Naik as DW.4

and another Forest Range Officer namely, Dattaram Fal Dessai as

DW.5. Comunidade of Balli examined its Attorney namely Rohidas

Fal Dessai as DW.6, a Civil Engineer, Vicente Correira Afonso as

DW.7 and one Shaba Gaonkar as DW.8.

20.

In Civil Suit no.158/1981, the Government examined

Assistant Conservator of Forests Shri M.K. Bidi as PW.1, Forest

Survey Officer Mr. N. Subramaniam as PW.2, Retired Officer and

Surveyor Mr. Raghunath

Dessai as PW.3.

Dessais examined

defendant no. 2(b) namely Satywan Bhadru Dessai as DW.1, one

Piedade Fernandes as DW.2 and one Mukund Panchawadkar as

DW.3. Chowgules did not lead any evidence in this suit.

21.

Upon detailed analysis of the history of legislation in force

in Goa regarding forests from the time of Portuguese regime till the

coming into force of Goa, Daman and Diu Land Revenue Code, 1968

and evidence led by the parties and also the evidence and report of the

Commissioner, in Civil Suit No. 100/1981, learned trial Court found

that the entire stress put in the notice dated 30/7/1973, issued by

Chowgules,

under Section 80 of C.P.C., to the Government, is

regarding the property 'Chactam' from Mangal village alone and not

the other properties regarding which Chowgules have filed the suit.

Trial Court held that the said notice under Section 80 of C.P.C. was

incomplete and substantially varied from the claim made in the suit

and such defective notice cannot be held to be a good notice under

Section 80 of C.P.C. and on this ground alone, the suit filed by

Chowgules deserves to be dismissed. It has been held that the Counter

Claim of Comunidade also deserves to be rejected for want of notice

required to be given to the Government under Section 80 of C.P.C.

The trial Court held that Chowgules could not prove that the suit

properties described under matriz nos. 2, 3, 4, 5, 7, 10, 12 ,13, 14, 17,

33, and 35 belong to them. It has been held that even if Chowgules

purchased a few “Bandhis” here and there, which Chowgules,

otherwise, have been unable to locate, Chowgules also did not take

help of his sellers to locate the same, and the said “Bandhis” could

not certainly extend to 384 Ha. Trial court held that the evidence of

witnesses examined on behalf of the Government and documents

produced by them show that the forest at Mangal belongs to the

Government and has been under the Government administration with

a definite name at least from the year 1951 and with provisional

demarcation by cairns or ghodges after liberation and prior to the

notification dated 1/2/1965 declaring it as a reserved forest for the

purpose of the Indian Forest Act, 1927. Learned Judge held that the

evidence on record shows that the cairns came to be destroyed by the

agents of Chowgules only after the execution of the sale deeds and

prior to that there was no claim to the said forest either from

Chowgules or from Comunidade. Learned Judge found that the report

and plan of Engineer Correia Afonso (DW.7) examined by

Comunidade cannot be accepted as the same is a guesswork not

involving any experience and and also because he failed to locate the

properties claimed by Comunidade in its Written Statement in relation

to the Government Forest. He also found that the report of the

Commissioner, CW.1, P. R. Dalvi is not acceptable. Learned Judge

concluded that the said suit properties are part of Mangal property

also known as Chafeacho Dongor or Codelacho Dongor, belonging to

the Government, and in their possession. He held that the suit

properties are part of land which was notified as Government Forest

in 1917 by the previous Portuguese Government and published in

government Gazette No. 2, Series II dated 11/1/1951. Trial Court held

that the Government have been planting cashew trees in the Mangal

Forest claimed by them without obstruction from anyone including

Chowgules, Comunidade and Chandulal Chotai. Trial Court held that

Chowgules surreptitiously, fraudulently and falsely got their name

recorded in the survey records. The said Civil Suit No. 100/1981

came to be dismissed. The Counter Claims filed by Comunidade and

by Chandulal also came to be dismissed. Chowgules have filed the

First Appeal No. 238/2003 against the said Judgment and Decree of

dismissal of their Civil Suit No. 100/1981.

22.

Upon consideration of the entire evidence on record, in Civil

Suit No. 158/1981, the learned trial Court mainly held that the

boundaries of the alleged Mangal forest are not proved and the

location of the same has also not been established. The trial Court

held that the Government could not prove that the said forest

corresponds to the survey numbers as pleaded in the plaint. Learned

Judge also held that the deposition of DW.1(Satyawan Bhadru Dessai)

in respect of different properties situated in village Mangal has not

been shaken in the cross examination and there was no challenge at

all to the areas stated by him of the said properties or as to the nature

of trees and the extent of forest trees in the said properties. The

learned Judge held that there is no evidence on record produced by

the Government which can be sufficient for setting aside the order

dated 5/1/1979 passed by the Inspector of Cadestral Survey. The

learned trial Court held that Dessais have proved that they are in

possession of the portions of survey holdings nos. 5, 12, 15 and 18/2

as has been held by the Inspector of Cadestral Survey and

Government has failed to produce evidence to the contrary. Though

PW.1(M. K. Bidi) had deposed that by the notification dated 1.2.1965,

published in the Government Gazette, the Government forest

including Mangal forest were notified as “reserved forests”, however,

PW.2(Raghunath Dessai) in his cross examination had admitted that

the forest was not notified as reserved forest under Section 4 of the

Indian Forest Act, 1927 and no forest settlement officer was

appointed. The trial Court held that though in para 3 of the plaint, the

Government had defined the boundaries of Mangal forest, they

however, did not produce on record any evidence to prove that

Mangal forest exists within the said boundaries. The trial Court,

therefore, concluded that the Government have failed to prove that the

survey numbers which are subject matter of the suit form part of

Mangal forest belonging to the Government. The Civil Suit No.

158/1981, therefore, came to be dismissed. Government has filed the

First Appeal No. 45/2006 against the judgment and decree passed in

the Civil Suit no. 158/1981.

23.

The contest is between Government one one side and

Chowgules and Dessais on the other side.

24.

Mr. Lotilkar, learned Senior Counsel, appearing on behalf

of Chowgules, submitted that the trial Court wrongly held that the

Civil Suit No. 100/1981 deserves to be dismissed for want of notice

under Section 80 of C.P.C. He submitted that the suit was filed in the

year 1974 and in 2003, it has been held that the same is bad for want

of notice under section 80 of C.P.C. He invited my attention to

paragraph 14 of the plaint wherein it has been pleaded that the

plaintiff gave notice under Section 80 of C.P.C. to the Government on

4/8/1973. He pointed out from the said notice that in fact 'Chactam'

was part of that notice and from paragraph 14 of the written statement

of the Government wherein receipt of said notice has been admitted

and no objection to the same has been taken. According to him, the

purpose of giving notice under section 80 of C.P.C. and the fact that

parties were already fighting and there were criminal cases filed, was

not considered by the trial Court. Learned Senior Counsel pointed out

that no issue was framed in the suit as to whether the same was bad

for defective notice. He relied upon “Ghanshyam Dass and others V.

Dominion of India and others” reported in [(1984) 3 SCC 46] and

submitted that the suit could not have been defeated on mere

technicalities when there was substantial compliance of the relevant

provision.

25.

Learned Senior counsel, appearing on behalf of

Chowgules, submitted that though Chowgules did not dispute the

existence of forest land, however, Government also did not dispute

that there is private land. He submitted that the Commissioner

appointed by the trial Court had opined that the properties claimed by

Chowgules did not form part of the land notified as National Forest

in spite of which some of the properties surveyed under nos. 3, 1 and

9 were declared as Reserved Forests. He further pointed out that the

Commissioner found that the Mangal forest has not been demarcated

by the erstwhile Portuguese Government. He pointed out from the

evidence on record, that even otherwise, the Government has not

proved the compliance of various legislations which came into force

from time to time and to which reference has been extensively made

by the trial Court. He submitted that the alleged list with boundaries

prepared on 20/10/49 was marked “X” for identification and was not

proved. He submitted that the Government did not make any

application for leave to produce and rely upon secondary

evidence( xerox copy) and there was no opportunity for Chowgules

and others to cross-examine the witness on the said document.

According to him, the trial court has wrongly placed reliance on the

cases reported in “2000(1) G.L.T. 268” and “A.I.R. 2000 S.C. 2629”.

Learned Counsel contended that the trial Court could not have relied

upon the said list of 20/10/1949. According to the learned Senior

Counsel, evidence of the Commissioner has been erroneously ignored

by the trial Court by holding that his report is one-sided and prepared

by him to help Chowgules, he having availed of the hospitality of

Chowgules. Learned Counsel contended that Chowgules have

purchased the properties in dispute, by means of registered sale deeds

in the years 1969 and 1970 from the persons whose names reflected

in the Revenue register of Village Mangal, which sale deeds have

been produced on record. He further submitted that Chowgules, by

cogent evidence, have established their physical possession and

enjoyment of the said properties from the date of execution of sale

deeds. According to him, the finding of the trial Court in paragraph

127.2 of the impugned Judgment to the effect that the plaintiff

(Chowgules) is trying to make roads into the said forest Mangal based

on the said sale deeds executed by them and which are, in turn, said to

have been based on matriz documents, is an erroneous finding

without any reasons and cannot be sustained.

26.

Learned Senior Counsel submitted that the properties of

Chowgules bear matriz numbers and in the said matriz records the

properties are shown as private properties liable for payment of land

revenue. He submitted that the land revenue records are prepared by

the Government. He questioned as to how Government can claim

ownership of the properties when it is collecting land revenue

regarding said private properties. Learned Counsel submitted that

case of the Government was that the suit properties were part of the

Government Forest whereas the case of Chowgules was that the suit

properties fell beyond the Government Forest. He submitted that the

fact that there is Government land adjoining the property of

Chowgules and that there is private property adjoining the

Government land is not disputed. He contended that in the absence of

demarcation as laid down under the law applicable to Government

Forest, the trial Court could not have presumed that the suit lands

were part of Government Forests. He submitted that the

commissioner, Mr. P. R. Dalvi was specifically asked to demarcate

the suit land. Therefore, according to him, the finding of the trial

Court in paragraph 128 of the impugned Judgment that the dispute

could not have been a boundary dispute as sought to be made out on

behalf of the plaintiff (Chowgules) or the Comunidade, is wrong.

Learned Counsel submitted that even for doing provisional

demarcation by government, there had to be some records, but no

such records have been produced. According to him, the conclusion

of the trial Court that there was provisional demarcation of the

Mangal Forest, after 1949 or 1951 is contrary to the evidence on

record and is based on surmises and conjectures. He pointed out that

the Government has not produced any plan showing the extent of

Mangal Forest. He submitted that DW.1 has stated that Chowgules

have rest house outside Mangal forest. He submitted that as per the

list of government forest lands allegedly prepared in 1949, there is

paddy field of Comunidade towards east and private property of

Mangalkars towards the west of said forest “Mangal” or “Chafeacho

dongor and Codelacho dongor”. He therefore, contended that the

claim of Government to entire Mangal village is falsified by the

above. He pointed out that DW.1 and DW.2 have not produced any

documents to prove possession of the forest by their Department and

to prove acts of possession like granting land for Cumeri cultivation,

auctioning the produce and raising of plantation, etc.. He pointed out

that DW.1 has admitted that there are private properties within the

forest land. According to him, the testimonies of all witnesses of

Government were in air without support of documents and such

evidence was not sufficient for proving issues no. 2, 6, 7 and 8. He

pointed out that the issues no. 2 and 6 have been decided without

even discussing any evidence led by Chowgules.

27.

Learned Senior counsel submitted that on the date of filing

of the suit, Chowgules were in possession of the suit properties as per

the survey records and other evidence produced by Chowgules and in

fact the possession of Chowgules is from the year 1969/1970 and

hence unless the Government shows a better title, it cannot dispossess

Chowgules.

Learned Counsel submitted that in Civil Suit No.

158/1981, filed by the Government, Government failed to prove title

as well as possession and Government did not ask for recovery of

possession. He submitted that the assumption that the sale deeds of

Chowgules are fake is wrong and even otherwise there was no issue

framed by the trial Court as to whether the sale deeds of Chowgules

are fake. My attention was invited to the evidence of PW.1, Kishore

Bandekar who has produced various sale deeds by which Chowgules

purchased the properties and

various Forms No. I & XIV of

promulgated survey records pertaining to those properties of

Chowgules. He pointed out that the name of Yeshwantrao Chowgule

is figuring in the occupants column of these survey forms whereas the

name of Government does not figure. He pointed out that there are

several 'Rice' lands included in the said survey holdings and

Government has never cultivated rice. According to him, therefore

identifying these survey holdings vis-a-vis the properties described in

the matriz records, would not be wrong and the Court Commissioner,

Mr. Dalvi has done the same thing. He submitted that the claim of

Government to the said survey holdings has been rejected by the

Inspector of Surveys, by order dated 5/1/1979. According to him, the

trial Court ought to have protected the possession of Chowgules.

Learned Senior Counsel submitted that during the pendency of the

suit filed by Chowgules, there was 'status quo' order which means that

the possession of Chowgules was protected. According to him, even if

the title documents produced by Chowgules are held to be not

relatable to the suit properties, then also the possession proved by

Chowgules is for quite a long time from the year 1969/1970. He

contended that since the Government could not establish its title and

since Chowgules have established their possession, Chowgules have a

better title. He relied upon “Somnath Burman V. Dr. S. P. Raju and

another”, reported in [1969(3) SCC 129 =A.I.R. 1970 S.C. 846 ]. He

contended that the possession of Chowgules was sufficient evidence

of title as owner, as against the Government. Learned Counsel,

therefore urged that the First Appeal No. 238/2003 deserves to be

allowed and the Civil Suit No. 100/1981 deserves to be decreed as

prayed for.

28.

Mr. Salkar, learned Government Advocate appearing on

behalf of the Government, in First Appeal No. 238/2003, submitted

that Chowgules, in their plaint, have not stated the extent of the suit

properties and have not identified them by way of survey numbers.

My attention was drawn to paragraph 2 of the plaint wherein it has

been specifically averred that none of the boundaries of the properties

of Chowgules is a Government Forest. He pointed out that the total

area is mentioned as 384 Ha. but no break up area of each matriz is

given. According to Mr. Salkar, therefore, the boundaries and extent

of each property claimed by Chowgules, is not proved. He further

submitted that the title and possession of predecessors-in-title of

Chowgules has also not been proved. Since the extent and location of

384 Ha. of land claimed by Chowgules is not proved, according to

learned Government advocate, prayer (a) in the said suit no. 100/1981

which pertains to 384 Ha. of land cannot be granted. He pointed out

from the Commissioner's report at CW.1/A(colly), that the erstwhile

regime had published in the Government Gazette (Boletin Official) II

Series No. 2 dated 11/1/1951, a taluka-wise list of Government

Forests situated at Mangal in order to avoid confusion as regards the

denomination of Government Forest lands in Goa and that the

Government Forest land, considering its western boundary, could be

located within the survey no. 2 as shown in the annexed plan and as

notified in the above Government Gazette. Learned Counsel further

submitted that the Commissioner had found that there were land

registration documents produced by Chowgules and other parties but

the exact demarcation of individual plots could not be shown since all

the plots described under matriz were interconnected and the parties

could not show separation line between the two properties. According

to him, as per the sale deeds produced by Chowgules, only small

paddy fields have been purchased. He submitted that Chowgules have

failed to locate their properties and hence no interference with

impugned judgment and order in Civil Suit No. 100/1981, is called

for.

29.

Mr. Afonso, learned Government Advocate, appearing on

behalf of Government, in First Appeal No. 45/2006,

argued that in

terms of Section 14 of the Land Revenue Code, 1968, all lands, which

are not the property of any person are the property of Government

and it

is not necessary for the Government to prove title and

therefore, it was for Chowgules and Dessais

to prove that the

properties claimed by them, but which are mentioned by Government

to be Government forest, belong to them.

According to the

Government Advocate, the trial Court has not considered this aspect

of the matter, while deciding the Civil Suit No. 158/1981. He further

submitted that the order dated 5/1/1979 passed by the Inspector of

Cadestral Survey is not based on evidence on record but appears to be

based on his personal knowledge gained by visiting the site. The

learned Counsel submitted that it is not known as to how the Survey

Officer has given specific areas as of private properties without

mentioning as to how he calculated them and as to how he notified

them. Even if some portions were found to be belonging to private

persons, according to the learned Government Advocate, the same

could have been excluded and the remaining property could have

been declared to be Government forest. He, therefore, urged that the

order dated 5/1/1979 of the Inspector of Cadestral Survey is liable to

be set aside and declaration as prayed for by the Government in Civil

Suit No. 158/1981 deserves to be granted. He, therefore, prayed that

the Judgment and order passed in Civil Suit No. 158/1981 be set aside

and the said suit of the Government be decreed.

30.

Mr. Ramani, learned counsel appearing on behalf of the

Dessais [respondents no.1(c) and 1(d) of First Appeal No. 45/2006]

submitted that Section 14 of the Land Revenue Code does not give

any presumption in favour of the Government but it is like a residuary

provision. Alternatively, Mr. Ramani submitted that even if Section

14 gives presumption, the same stood rebutted by the order of

Inspector of Cadestral Survey dated 5/1/1979 passed under Section 14

(4) of the Land Revenue Code.

He submitted that since the

Government had prayed, in the suit, for declaration of ownership, it

had to convincingly prove the title without any presumption. Mr.

Ramani further submitted that dispute was raised before the Survey

and Settlement Officer by Satyawan Bhadru Dessai and that the

dispute was decided in his favour. He invited my attention to the said

order dated 5/1/1979, wherein the Cadestral Survey Officer has

specifically stated that the disputed areas were notified. According to

Mr. Ramani, therefore, this only means that measurements of areas,

as mentioned in the operative part of the order, were taken. He

submitted that on the basis of this order, the Record of Rights was

promulgated and consequently the names of Dessais and Chowgules

are figuring in the relevant survey records pertaining to the properties

claimed by them. He pointed out that in the lists produced by the

Government only the names of the properties are given without any

boundaries or areas, etc. He further pointed out that in one of the

lists, boundaries of Mangal forest are shown in two portions. He

showed that the Government has not stated that the boundaries of

both portions are taken together and according to him, these

boundaries do not tally with the boundaries stated in paragraph 3 of

the plaint in Civil Suit No. 158/1981.

He further submitted that in

the said Suit No. 158/1981, the declaration was sought by the

Government in respect of various survey numbers and admittedly, the

name of one Domigos Furtado is figuring in survey record as

occupant in respect of one of the survey holdings whereas, the

names of Ganesh Baba Gaonkar and Xaba Babu Gaonkar are figuring

as occupants in some other survey holding. He submitted that since

these persons are not made parties to the suit, the suit is bad for non-

joinder of necessary parties. He contended that the inquiry before the

Cadestral Survey Inspector was held from August 1976 till January

1979 and therefore it had taken a considerable time due to which the

same cannot be doubted. He finally contended that even if it is taken

for granted for the time being that Dessais had failed to prove their

case, that would not go in favour of the Government. He, therefore,

submitted that the impugned judgment and order in Civil Suit No.

158/1981 is not at all assailable and the First Appeal No. 45/2006 is,

therefore, liable to be dismissed.

31.

Mr. Usgaonkar, learned Counsel appearing on behalf of

Dessais [respondents No. 2(a) to 2(j) and 3(a) to 3(j), in First appeal

No. 45/2006], adopted the arguments advanced by Mr. Ramani.

32.

I have carefully gone through the record and proceedings

of both the suits.

33.

The main points that arise for determination are as

follows:-

(a) Whether the Civil Suit No. 100/1981 is not maintainable,

for lack of required notice to the Government under Section 80 of

C.P.C.

(b) Whether Chowgules have proved that they are owners in

possession of the suit properties: (I) Parnachi Nomoss, (ii)

Chanpeaparna, (iii) Bisiguirem, (iv) Camrem, (v) Vaigan Chactam,

(vi) Sorod, (vii) Ganeaparnantil Chactam, (viii) Ghorbat, (ix)

Dolcumby, (x) Chactam, (xi) Culmantil Bandi and (xii) Gulmantil

Bandi, each bearing Matriz No. 2, 3, 4, 5, 7, 10, 12, 13, 14, 17, 33

and 35 respectively, cumulatively admeasuring 384 Ha.

(c)

Whether the Government has proved that the said

properties described by Chowgules fall within the Government Forest

known as “Chanfeacho Dongor” and ”Codelacho Dongor”.

(d) Whether the Government has proved that the Forest

Mangal or Chanfeacho Dongor and Codelacho Dongor has been

surveyed under nos. 2, 3, 5, 9, 10, 12, 15, 16, 18/1, 18/2, 19, 20 and

25/3 of village Mangal of Quepem Taluka.

34.