The point for determination gets answered in the negative. It is, therefore, rightly held by the learned trial court that the plaintiffs have failed to identify the suit property.
16. Admittedly, the plaintiffs are claiming some land which does not bear any survey number under the Land Revenue Code. In terms of Section 14 of the Land Revenue Code, land which does not belong to any private party, belongs to the Government.
Salvador D'Souza (since deceased) and Others Vs. Mrs. Maria Lizia Aurelia Fernandes e Melo and Others
Court : Mumbai - Goa
Judge : U.V. BAKRE
Decided On : Aug-20-2013
2. The present appeal arises out of the Judgment, Order and Decree dated 12/01/2006 passed by the learned Adhoc Additional District Judge, Fast Track Court-I, South Goa, Margao (trial Court, for short) in Civil Suit No.176/2004 (new) : Regular Civil Suit No.79/2003/A(old).3. The parties shall hereinafter be referred to in the manner in which their names appear in the cause title of the said civil suit.
4. The plaintiffs had filed the said suit for declaration that they are absolute owners in possession and enjoyment of the suit property and that the defendants have no right, title and interest in the suit property; for perpetual injunction restraining the defendants and their agents from constructing road on or over the suit property or from interfering with the same in any manner detrimental to the ownership and possession of the plaintiffs and lastly for a direction to the survey authority namely the Inspector of Survey and Land Records, Fatorda, Margao to record the suit property in the name of the plaintiffs.
5. The suit property, as described in the plaint, is known as “ValadoAntigo e Novo Andyâ€, described in the Land Registration Office of Salcette at Margao under No. 20610 at page 14 overleaf of Book B No. 53 new, situated in the village of Macasana, Salcete Taluka, admeasuring 937.70 square metres. It was the case of the plaintiffs that the suit property originally belonged to late Francisco Piedade Fernandes and his wife late Felicidade de Melo. According to the plaintiffs, they are the owners and have been in actual physical possession and enjoyment of the same for the last 33 years, peacefully, continuously and without any interruption and as of right. Therefore, the plaintiffs in addition to being title holders have also acquired prescriptive title to the suit property and have become owners by adverse possession. It was further alleged that the Village Panchayat of Macasana tried to make road in and over the suit property due to which the plaintiffs filed Regular Civil Suit No. 59/2001/D in which the Panchayat raised objections as to the title of the plaintiffs and claimed that the suit property vests in the Government. The plaintiffs then addressed legal notice to the defendants no. 13, 14 and 15 informing that they are the absolute owners of the suit property. However, the respondent no. 14 sent reply informing the plaintiffs to furnish survey number/sub division of the suit property along with copy of Form No. I and XIV. According to the plaintiffs, they informed the respondent no. 14 that the suit property is not recorded in the survey records and requested to do the needful. The plaintiffs alleged that the respondent no. 14 informed the plaintiffs that the records of village Macasana of Salcete Taluka were promulgated and therefore, plaintiffs should approach the competent authority/Court for redressal. Hence, the suit.
6. Only the respondents no. 13 and 14 contested the suit. In their written statement they alleged that the plaintiffs have not produced any plan showing the area claimed by the plaintiffs and even otherwise, since the said area is not surveyed under any survey number, the same belongs to the Government in terms of section 14 of the Land Revenue Code. The said defendants denied all the averments made by the plaintiffs in the plaint.
7. The learned trial court framed issues in view of the rival contentions of the parties. The plaintiffs examined plaintiff no.1, Salvador D'Souza as PW.1, Smt. Regina Coelho e Costa as PW.2 and an Engineer Shri Vikas Dessai as PW.3. The defendants no.13 and 14 examined two witnesses namely, Shri Anton Colaco, Head Surveyor and Shri Tito D'Cunha, Inspector of Land Survey and Records, respectively as DW.1 and DW.2.
8. Upon consideration of the entire evidence on record, the learned trial Court mainly held that the suit property has not at all been identified. The learned trial court further found that no evidence was produced by the plaintiffs to prove that the defendant no.15 was constructing a road through the suit property without acquiring the same under the law. The trial court held that the title of ownership claimed by the plaintiffs and adverse possession are destructive of each other and even otherwise, the said claim of adverse possession has not at all been proved. Consequently, the suit was dismissed. The plaintiffs are aggrieved by the impugned judgment and decree and have preferred the present appeal.
9. Mr. Bhobe, learned Counsel appearing on behalf of the plaintiffs, submitted that the description of the suit property contained in the land registration document (Exhibit C-20 colly) and Will dated 13/2/61(Exhibit C-22) read with the blue print at Exhibit 23 and the site inspection report with plan prepared by PW.3 duly established the identification of the suit property and the evidence on record proved that the defendants were falsely denying the title and possession of the plaintiffs. On the contrary, learned Additional Government Advocate, on behalf of the defendants no. 13 and 14 submitted that the suit property is not at all identified and that since admittedly, the same bears no survey number the presumption in terms of Section 14 of the Land Revenue Code would be that the same belongs to the Government.
10. It is seen from the above submissions that the point which mainly arises for determination is whether the plaintiffs have identified the suit property.
11. In the plaint, the plaintiffs have described the suit property by means of its land registration number, boundaries and the area. Admittedly, the land registration document which is produced at Exhibit C-20 (colly) does not mention the area of the suit property to be 937.70 square metres, as claimed. The plaintiffs did not produce a plan, prepared by any expert, along with plaint, for identification of the suit property as described in the land registration document bearing no 20610; the Will dated 13/2/1961 and the Deed of Succession dated 28/7/1969 vis-a-vis the land which the local panchayat was attempting to usurp by trying to make road.
12. In her cross-examination, PW.1 deposed that the area of the suit property is 937.70 square metres and that rest of the property is also in her possession and that no partition has taken place in respect of the rest of the property. This means that the suit property is a part of a bigger property which has not been partitioned by metes and bounds. PW.1 stated that she is producing report issued by Engineer Vikas Dessai along with plan drawn by him. The same is at Exhibit C-24 (colly).
13. PW.3, is the said Engineer Vikas Desai. Though in his examination-in-chief, PW.3 stated that the boundaries as mentioned by him tally with the property registered under No. 20610, he, however, added that the same pertains to the suit bund. PW.3 specifically stated that there is no other property other than the disputed property included in this registration number. The above is contrary to the stand taken by PW.1. PW.3 could not give the length and breadth of the disputed property. He could not say anything to the suggestion that the length of the disputed property would be 150 to 160 metres and the width of the same would be 12 to 13 metres. PW.3 stated that he has not measured the same. He admitted that in the document, namely the registration document, the area is not mentioned. He stated that in all the documents which he examined, the area of the disputed property was not shown. According to PW.3, the plaintiff no.1 was present at the time of site inspection and he had shown the area. Needless to mention that PW.3 cannot be relied upon insofar as the site inspection report and the plan which are at Exhibit C-24 (colly) are concerned. His evidence, both oral and documentary, cannot identify the suit property.
14. PW.2, Regina Coelho, in her cross-examination, stated that she cannot tell the length and breadth of the suit bund and she has not seen the title documents. She could not tell the boundaries of the bund. Though, she stated that the paddy field which is close to the said bund belongs to her landlord and that she is the tenant of the same, however, she did not know the survey number of her paddy field as also the boundaries of the same. According to PW.2, she saw the plaintiff plucking coconuts from the said bund at least on three to four occasions. However, since PW.2 could not identify the bund from which she saw the plaintiff plucking coconuts, the said evidence is of no use.
15. The point for determination gets answered in the negative. It is, therefore, rightly held by the learned trial court that the plaintiffs have failed to identify the suit property.
16. Admittedly, the plaintiffs are claiming some land which does not bear any survey number under the Land Revenue Code. In terms of Section 14 of the Land Revenue Code, land which does not belong to any private party, belongs to the Government.
17. In the circumstances above, since the plaintiffs failed to identify the suit property, the question of discussing the evidence of defendants does not arise.
18. The impugned judgment, order and decree is in accordance with the settled principles of law and no interference with the same is called for.
19. In the result, the appeal is dismissed. However, in the facts and circumstances of the case, no order as to costs. Appeal stands disposed of accordingly.
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