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Saturday, 9 November 2013

Party claiming possession should cogently prove identification and location of properties claimed by him



In the case of “Somnath Burman”(supra), relied upon by
the learned Senior Counsel, on behalf of Chowgules, it has been held
that the possessory title is a good title as against everybody other than
the lawful owner. Reference has been made to the case of “Ismail
Arrif V. Mahomed Ghouse” (ILR 20 IA 99), wherein it was observed
that the possession of the plaintiff was a sufficient evidence of title as

owner against the defendant. In my view, the above judgment is not
applicable to the present case because the parties who have prayed for
declaration of their ownership of the property, have failed to establish
the extent and to identify/locate their property. In Civil Suit No.
100/1981, during the pendency of the said suit, survey operation was
completed and in fact PW2 has referred various survey numbers as of
the properties belonging to Chowgules. There are no pleadings in the
plaint, in Civil Suit No. 100/1981 that particular survey number
corresponds to particular matriz number or that particular survey
numbers taken together correspond with all the matriz numbers and
hence the evidence of PW.2 is beyond the pleadings. However, there
is no evidence produced by Chowgules to identify the said survey
holdings vis-a-vis the Matriz numbers in respect of which the relief
has been claimed by Chowgules. It should be kept in mind that
Chowgules have prayed for declaration of ownership of the
properties. Similarly, the Government has prayed for declaration of
ownership of the properties. In the circumstances above, both the
parties had to cogently prove the identification and location of the
properties claimed by them. This was essential because the evidence
on record in both the suit reveals that the Government Forest and
private properties are inter-mixed. It is seen that in both the suits,
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Chowgules and the Government
have failed to prove the
identification of their properties

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.
Citation; 2013(6) MH LJ 125


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.
2.
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.
3.
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;
8
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.
4.
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'.
5.
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
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Chotai (defendant no. 7) had filed counter claim for various reliefs.
6.
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.
7.
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
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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.
8.
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
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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.
9.
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
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(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
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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
14
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
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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
of
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,
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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
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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
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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.
19
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.
20
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
21
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
22
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
23
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
24
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
25
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
26
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
27
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
28
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
29
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
30
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
31
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,
32
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
33
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
34
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
35
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.
36
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
37
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,
38
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
39
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
40
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.
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
41
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'.
42
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
43
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
44
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.
36.
Chowgules, in Civil Suit No. 100/1981, have prayed for
declaration that they are owners of 12 named properties bearing
particular matriz numbers and particular boundaries, situated in the
Revenue Village of Mangal and admeasuring 384 Ha. and further that
Forest Department has no Forest in the said area of 384 Ha.. Though
during the pendency of the said Suit, survey under the Land Revenue
Code was conducted and PW.1 and PW.2, in their deposition, have
mentioned about the survey numbers, however, Chowgules did not
amend the plaint to identify the properties claimed by them by means
of matriz Numbers, by giving recent survey number of each property.
In the written statement filed, in Civil Suit No. 158/1981, Chowgules
alleged that the main issues involved in this suit are substantially the
same in the suit No. 8/1974 (Civil Suit No. 100/1981), but here also
they did not bother to identify their properties by means of survey
numbers. Chowgules did not lead any evidence in Civil Suit no.
158/1981. The evidence of witnesses examined by Chowgules, in
Civil Suit No. 100/1981, as has been held by learned trial Court, is
45
not of real assistance to them to establish their case.
37.
Unless the exact location and extent of the properties
claimed by Chowgules, all taken together, is proved by them,
question of giving declaration to them as prayed for does not arise.
The other reliefs are consequential. Indisputably, matriz certificates
do not confer title. Chowgules have not examined any of their
predecessors-in-title or the intermediaries through whom they got
executed the sale deeds in their favour. There is nothing on record to
prove the ownership of the said vendors with regard to the properties
named in the said sale deeds.
There is no identification of the
properties described under matriz numbers 2, 3, 4, 5, 7, 10, 12, 13, 14,
17, 33 and 35 as per the boundaries of the said properties stated in the
plaint. In order that an expert surveyor or an engineer could identify
and locate the entire property claimed by Chowgules, it was
incumbent upon them to have stated the boundaries of all the matriz
numbers taken together. Though Chowgules have stated in the plaint
the boundaries of each property, however, they have not stated the
boundaries of all the properties taken together. PW.1, Kishore
Bandekar, the chartered Accountant of Chowgules, has stated that the
46
matriz boundaries and the boundaries mentioned in the sale deeds are
not necessarily the same. Since Chowgules had purchased the
properties as per matriz records, the boundaries mentioned in the sale
deeds and in matriz certificates could not have differed. No plan
showing the area and shape of each of the purchased properties was
prepared by Chowgules at the time of execution of sale deeds.
Chowgules claim to be in possession of the said properties from the
year 1969/1970 but the Government claims possession from time
immemorial. Chowgules in order to succeed in their suit had to
establish identification of their properties at loco. There is absolutely
no evidence on record to establish that the area of the properties
claimed by Chowgules is 384 Ha.
38.
None of the witnesses examined by Chowgules can help
the court to locate the properties of Chowgules as claimed by them in
the plaint. Chowgules have not objected to the report of the Court
Commissioner, Mr. Dalvi, examined as CW.1. However, CW.1 has
mentioned in his report that the properties Ganeaparnatil Chactam
bearing matriz no. 12 and Vancoddecumbiacoddil Molla (second
addition) bearing matriz no., 15 did not belong to Chowgules but
47
belonged to Comunidade. According to DW.8, who is the son of
Babu Shaba Gaonkar, the seller of the sale deed at Exhibit 87, Babu
and his wife have sold only one 'Bandi' of paddy field to Abdul
Rehman who in turn sold the same to Chowgules. He has stated that
he still cultivates the paddy field belonging to Babu Shaba Gaonkar.
In such circumstances, the sale deed dated 6/6/1969 at Exhibit 87 by
which said Babu Shaba Gaonkar is said to have sold the said property
“Ganeaparnatil Chactam” bearing matriz no. 12, through one Shaikh
Abdul Rehman, to the plaintiff is not beyond suspicion and cannot be
relied upon. According to DW.8, the paddy field sold by Bamto
Chandru Velip to Chowgules, through said Abdul Rehman is a small
field of about four 'bandis' and is fallow. DW.8 has stated that Janu
Jiblo Velip
has sold about 25 'bandis' of paddy field to Chowgules
through Abdul Rehman (by sale deed at Exhibit 93) but still the said
paddy field is cultivated by said Janu Velip. The names of Shaba
Babu Gaonkar and Janu Velip continue to be there in the survey
records. It is pertinent to note that the property 'Bisiguirem' bearing
matriz no. 4 was first sold by sale deed dated 06/06/69, which is at
Exhibit 90 by Bamto Velip. But the same matriz no. 4 has been again
sold by sale deed dated 20/4/1970 (Exhibit 95) by Bono Velip.
Similarly, the property 'Ghorbatta' bearing matriz no. 13 has been
48
first sold by sale deed dated 06/06/69 by Bamto Velip and again by
sale deed dated 20/4/70 (Exhibit 95) by Bono velip. There is no
explanation for execution of two sales deeds in respect of same
properties. A perusal of the plaint of Chowgules, in Civil Suit No.
100/1981, reveals that none of the properties claimed by them touches
Government Forest on any side. In his report, Mr. Dalvi (CW.1) has
mentioned that the properties having matriz numbers given by
Chowgules do not have Government Forest as its boundary. However,
in his deposition, CW.1 has stated that the matriz nos. 2, 5, 7, 10, 13
and 15 touch the Government Forest boundary. It is pertinent to note
that according to CW.1, if the southern boundary of the property
'Chanpeaparna' bearing matriz no. 3, claimed by Chowgules, is
Village Gaondongrem as mentioned in the matriz certificate, then it
would include Government Forest. The southern and western
boundaries of matriz no. 7 did not tally with the report prepared by
him. The southern and northern boundaries of matriz no. 10 did not
tally with his report. The southern boundary of matriz no. 12 also did
not tally with his report. None of the boundaries of matriz no. 13
tallies with the report of CW.1. The boundaries of matriz no. 14 did
not tally with his report. The northern and western boundaries of
matriz no. 15 did not tally with the report of CW.1. CW.1 has shown
49
matriz nos. 7 and 15 as belonging to Comunidade. He has stated that
both these matriz nos. 7 and 15 are forest areas. According to CW.1
parties could not identify their properties as per the boundaries shown
in matriz documents. He has stated that the parties were unable to
identify their properties at loco. As has been rightly held by the
learned trial Court, the evidence of CW.1 and his report and plan at
Exhibit CW.1 /A (colly) cannot be accepted.
39.
DW.1 Mr. N. Subramaniam is Government surveyor. He
has produced the blue print of a plan prepared by the Land Survey
Department showing the entire Mangal Forest, as Exhibit 124. He has
also produced the title of concession granted to Mr. Raia Baticar, and
a plan annexed to it, as Exhibits 125 and 126 respectively. He has
stated that some private areas and Mangal Forest both form part of the
said concession. According to him the said private land in the said
concession belongs to some Gaonkars. He stated that he does not
know whether the said private area belongs to Chowgules or to
Comunidade. However, he added that neither Chowgules nor
Comunidade have any right to the Forest land of Mangal. In the
course of cross-examination, the learned trial Court directed DW.1 to
50
show the area which Chowgules are occupying and the area of the
plan at Exhibit 126, on the plan at Exhibit 124. Accordingly, DW.1
superimposed the plan at Exhibit 126 over the plan at Exhibit 124 and
prepared a plan, which he has produced as Exhibit 211. According to
DW.1, he has shown the areas claimed by Chowgules in blue colour
and the mining concession of Bhatikar in red colour. He has stated
that survey nos. 1, 6, 4, 7, 8, 11, 13, 14, 17, 21, 22, 23 and 24 are
private properties within the forest area of Government. However, the
above does not help Chowgules to prove that they are the owners in
possession of the properties described by means of matriz numbers in
the plaint. It was incumbent upon Chowgules to have identified the
portions purchased by them by various sale deeds vis-a-vis the forest
maintained by the Government and vis-a-vis the survey records.
40.
In my considered view, Chowgules have failed to locate
and identify their properties purchased by them by virtue of sale
deeds produced on record, which are executed on the basis of matriz
records which cannot confer title. No doubt, name of Yeshwantrao
Chowgule figures in some of the survey records. But there is no
identification of the properties mentioned in the plaint vis-a-vis the
51
survey records. Admittedly, survey records also do not confer title
and no relief is claimed by Chowgules on the basis of survey records.
Therefore, the Civil Suit No. 100/1981 has been rightly dismissed. No
interference is called for with the impugned Judgment and order in
the said Suit No. 100/1981.
41.
It is true that in terms of the Decree dated 01.02.1897, all
forest and jungle lands, waste and alluvial riverine lands, paddy
fields, etc. which may not be proved, by whatever titles or authentic
documents, to be belonging to any corporation or private parties, shall
be considered to be belonging to the Government. There is also no
dispute that in terms of Decree dated 30.11.1899 all the lands of new
conquests occupied by arboreous vegetation, arbustive and sub
-arbustive, belonging to the Government and exploited by it shall be
considered as national forest. Then, in terms of Section 14 of the
Land Revenue Code,1968 all lands, public roads, lanes and paths and
bridges, ditches, dikes and fences on or beside the same, the bed of
the sea and of harbours and creeks below the high water mark, and or
rivers, streams, nallas, lakes and tanks and all canals and water
courses, and all standing and flowing water and all rights in or over
52
the same or appertaining thereto, which are not the property of any
person, are and are declared to be the property of the central
Government subject to right of way, and all other rights, public and
individual, legally subsisting. It should be kept in mind that from the
time of Portuguese regime till the time of coming into force of the
Land Revenue Code, several regulations were enacted for survey and
administration of Government Forest. The learned trial Court, in the
impugned judgment from paragraphs 102 to 114, has extensively
discussed on the said laws and regulations. However, in spite of the
said provisions, admittedly the Forest Mangal claimed by the
Government was not definitely demarcated.
certainly be
No doubt, it can
said that the Government has its Forest in Mangal
village. However, it can also be said to have been established that
Chowgules have their properties and Dessai also have their properties
in the same village. The difficulty is that neither the Government has
been able to identify the extent and exact location of Government
Forest nor the private parties namely Chowgules and Dessais could
establish the extent and location of their properties.
42.
In so far as the claim of the Government is concerned,
53
there is no evidence in both the suits to show that cairns of stones had
been placed in or about 1903 demarcating Mangal forest from the
private properties. Similarly, in so far as list published on 09.05.1917
as per the Decree No. 3602 is concerned, there is also no evidence to
show that Mangal forest was demarcated with the boundary marks.
PW.1, Mr. M. K. Bidi, in Civil Suit No. 158/1981, has admitted that
there is no plan in their possession indicating the cairns of the
boundary of their Forest. There is no demarcation plan of the year
1903. There is no document produced on record to show that any
demarcation of the Forest 'Chafeancho Dongor and Codelacho
Dongor' was done in the year 1917. No document is produced to
prove the possession of the Government in respect of the said Forest
in the year 1917. In Civil Suit No. 158/1981, PW.1, Mr. M. K. Bidi,
has deposed that Mangal Forest has not been demarcated as per the
law. He has stated that in Mangal Forest there are no stones of convex
shape and of the size 70 cms height, 30 cms broad and 23 cms thick
as required by Legislative Diploma No. 644 dated 27/3/1933. PW.1
has further stated that the Portuguese Government was in the process
of demarcating the Forest but they had not reached upto Mangal
Forest and in the mean time Goa was liberated in 1961. PW.2, Mr. N.
Subramaniam, the Government Surveyor, in Civil Suit No. 158/1981,
54
has stated that he does not have any document to show that during
Portuguese rule, Cairns or Signs were put to demarcate the
Government land from private property. Unless the Government
produces evidence to show that Mangal forest as claimed by it has
been demarcated in terms of the regulations relied upon by them, it
cannot succeed in proving the ownership and possession of the said
Forest. Merely by proving that Mangal forest was listed in the list
published in some Gazette, that is not sufficient to prove the extent
and boundaries of the Forest. In Civil Suit No. 100/1981 the list of
forests, with boundaries, prepared on 20/10/1949 was produced but
unfortunately it was a xerox copy and was marked 'X'. The same
could not have been read in evidence. The list of 1951, in Gazette
dated 11/1/1951 does not indicate the area and boundaries.
Admittedly,
the forest was not notified as reserved forest under
Section 4 of the Indian Forest Act, 1927.
43.
The evidence of PW.2, MR. N. Subramaniam, in Civil
Suit No. 158/1981 reveals that within the properties Chafeancho
Dongor and Codelacho Dongor there are private properties which are
enjoyed by private parties including the defendants of said suit. In
55
such circumstances unless the Government Forest and private
properties are separately identified, question of giving declaration to
the Government, as prayed for in Civil Suit No. 159/1981, does not
arise.
44.
No doubt, in Civil Suit No. 158/1981, the Government has
claimed Mangal forest by mentioning various survey numbers.
However, unfortunately the Government has not produced any
reliable evidence to prove the boundaries of Mangal forest and that
the said Mangal forest corresponds to the survey holdings of which
the numbers have been mentioned by it. No plan prepared by an
expert, thereby demarcating the Mangal Forest and showing private
properties within it has been produced and proved. Admittedly, by
order dated 05.01.1979, which is at Exhibit PW.1/C in Civil Suit No.
158/1981, the Inspector of Cadastral survey has decided against the
Government. I do not find anything on record to show that the said
order of Inspector of Cadastral Survey is erroneous. The Government
could not prove that the properties described under survey numbers 2,
3, 5, 9, 10, 12, 15, 16, 18/1, 18/2, 19, 20 and 25/3 in Mangal village
are the properties comprising Mangal forest which is the ownership
56
and possession of Forest Department. It should be kept in mind that
in Form I & XIV of various survey holdings show the names of either
'Chowgules' or of Dessais'.
45.
In Civil Suit No. 158/1981, as has been held by the trial
Court, Dessais have produced cogent evidence regarding their
property by giving the land registration numbers 16079, 12427,
12425, 12426, and 23543; matriz numbers 23, 32,19, 21, 16, 26, 31,
and recent survey numbers 13/2, 13/4, 6/1, 6/4, 6/5, 6/6, 14/1, 14/2,
14/3, 4/1, 17/1, 3/4, 3/5, 5/1, 12/2, 16/2, 18/2 and 15/1. They have
produced the above documents and have also produced three deeds of
gift dated 8/1/1921; 1/9/1921 and 30/1/1967. They have properly
identified their properties.
46.
In the case of “Somnath Burman”(supra), relied upon by
the learned Senior Counsel, on behalf of Chowgules, it has been held
that the possessory title is a good title as against everybody other than
the lawful owner. Reference has been made to the case of “Ismail
Arrif V. Mahomed Ghouse” (ILR 20 IA 99), wherein it was observed
that the possession of the plaintiff was a sufficient evidence of title as
57
owner against the defendant. In my view, the above judgment is not
applicable to the present case because the parties who have prayed for
declaration of their ownership of the property, have failed to establish
the extent and to identify/locate their property. In Civil Suit No.
100/1981, during the pendency of the said suit, survey operation was
completed and in fact PW2 has referred various survey numbers as of
the properties belonging to Chowgules. There are no pleadings in the
plaint, in Civil Suit No. 100/1981 that particular survey number
corresponds to particular matriz number or that particular survey
numbers taken together correspond with all the matriz numbers and
hence the evidence of PW.2 is beyond the pleadings. However, there
is no evidence produced by Chowgules to identify the said survey
holdings vis-a-vis the Matriz numbers in respect of which the relief
has been claimed by Chowgules. It should be kept in mind that
Chowgules have prayed for declaration of ownership of the
properties. Similarly, the Government has prayed for declaration of
ownership of the properties. In the circumstances above, both the
parties had to cogently prove the identification and location of the
properties claimed by them. This was essential because the evidence
on record in both the suit reveals that the Government Forest and
private properties are inter-mixed. It is seen that in both the suits,
58
Chowgules and the Government
have failed to prove the
identification of their properties. The points (b) (c) and (d) for
determination therefore get answered in the negative.
47.
In view of the discussion supra, no interference is called
for with the impugned Judgment and Order in both the Civil Suits No.
100/1981 and 158/1981. The First Appeal No. 238/2003 as well as
First Appeal No. 45/ 2006 deserve to be dismissed.
48.
In the result, both the Appeals no. 238/2003 and 45/2006
are dismissed, with no order as to costs.
U. V. BAKRE, J
ap/at

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