When revenue entries can be relied on for conferring title on party in possession of suit property?

 As per the provision of section 105 of the Land Revenue Code, there is the presumption of the correction of entries made in the Record of Rights. It is already observed that the entry also speaks about possession. After lapse of many years, more than, 20 years, the plaintiffs were debarred from claiming the correction of entries made in favour of defendant No. 7 in the revenue record. The entries in the revenue record could have been ignored only if the plaintiffs were able to prove their possession. The statement made by the learned Counsel for the appellant that the entries made are only for fiscal purpose and do not confer title can be safely accepted but the plaintiffs failed to prove their possession and the case of the other side is consistent with the record. Presumption under section 105 of the Code needs to be used

IN THE HIGH COURT OF BOMBAY (PANAJI BENCH)

First Appeal No. 130 of 2007

Decided On: 03.02.2014

Appellants: Antonio Tiago D'Costa and Ors.
Vs.
Respondent: Union of India Through Secretary to Govt. of India and Ors.

Hon'ble Judges/Coram:T.V. Nalawade, J.

Citation: 2014(2)BomCR847,2014(5) ALLMR 124

1. The appeal is filed against the judgment and decree of Special Civil Suit No. 167/00/I which was pending in the Court of Civil Judge, Senior Division, Margao. The suit was filed for making correction in the Revenue record of some suit lands and for compensation in respect of damage caused to those lands. The suit is dismissed in respect of these lands by the trial Court and that part of the decision is challenged in the appeal. In the appeal learned Counsel for the appellant and respondent Telephone department is heard. The other respondents did not turn up.

2. In short, the facts leading to the institution of the appeal, can be stated as under:

It is the case of the appellants/plaintiffs that they and defendant No. 9 are the owners of land bearing Survey Nos. 149/13, 154/1, 154/2, 155/2, and 156/1, 156/2, 156/3, 156/4, 156/5, situated at village Guirdolim Salcete. It is the case of the plaintiffs that all the survey numbers are together known as "Molla". The boundaries of the property described as Molla are given by the plaintiffs in the plaint.

3. It is the case of the plaintiffs that defendant No. 2, Telephone department did the digging in the suit lands in January 2000 for laying telephone cable and caused damage to their property. It is the case of the plaintiffs that defendants Nos. 3 and 5, PWD and State Government also caused damage to the suit properties by digging it and the digging was done to lay water pipeline. The water pipeline is laid parallel to the telephone cable and they are laid underground.

4. It is the case of the plaintiffs that they appointed a Civil Engineer as private surveyor to make assessment of damage caused to the lands. According to the plaintiffs, the survey report shows that the damage was caused to the property admeasuring 919.50 sq. metres and the loss to the extent of 3,21,825 is caused to the plaintiffs.

5. It is the case of the plaintiffs that after the aforesaid incident, they gave notices and made correspondence with the Village Panchayat and aforesaid departments. It is contended that they came to know that property bearing survey No. 154/1 admeasuring (700 sq. metres) and survey No. 156/1 admeasuring (725 sq. metres) are wrongly shown to be owned by Communidade of Guirdolim in the revenue record. It is contended that parts of property bearing Survey No. 155/2 (675 sq. metres and survey No. 156/4 (550 sq. metres) are also wrongly shown to be owned by the Village Panchayat of Guirdolim in the revenue record. It is contended that the plaintiffs got cause of action for the suit on 28/3/2000, when they learnt about entries made in favour of these defendants and in the revenue record.

6. The plaintiffs had prayed for relief of recovery of compensation of Rs. 4,23,000/- from Telephone department, PWD and the State of Goa. They had prayed for correction of revenue record in respect of aforesaid four survey numbers and they had prayed for order of making entry of the name of the plaintiffs and defendant No. 9 in the revenue record of these lands as the owners.

7. Defendants Nos. 3 and 5 PWD and Goa Government filed written statement and denied the case of the plaintiffs. It is the case of the defendants that the pipe line is laid along the side of existing road which is being used by the villagers and no damage was caused to the property of anybody including the plaintiffs. It is the case of the defendants Nos. 3 and 5 that the aforesaid road lies in land Survey No. 154/1 and this land belongs to Communidade, defendant No. 7. The defendants have disputed the assessment of damage and the loss caused.

8. It is contended by defendants Nos. 3 and 5 that the contention of the plaintiffs that they learnt about the entries made in the revenue record on 28/3/2000 is false. It is the case of these defendants that in the sale-deed executed by the plaintiffs in respect of portion of survey No. 154/2 on 11/11/1988 and the sale-deed executed by defendant No. 9 in respect of the part of the same land on 13/12/1976, they have shown that on the North side there was reserved, existing road. It is contended that in view of such description of the property given by the plaintiffs and defendant No. 9 they cannot claim ownership of the land situated on the northern side of Survey No. 154/2.

9. Defendant No. 7, Communidade filed written statement and it also denied the claim of ownership of the plaintiffs over Survey Nos. 154/1 and 156/1. It is the case of this defendant that these lands belong to the Communidade and since many years, these lands are shown in the record of Communidade. It is contended that during general survey also these lands came to be entered in the name of Communidade. Defendant No. 7 has denied that survey department has committed mistake. It is further contended that survey was promulgated and no objection was taken by the plaintiffs when general survey was made. This defendant has also mentioned about circumstance of description given in the sale-deed when some portion of Survey No. 154/2 was sold.

10. The trial Court framed issues in respect of the title to the property, quantum of compensation, the claim of plaintiffs of correction of revenue record and also on the point of limitation. Issue No. 9 which was in respect of the ownership of Communidade over survey No. 154/1 and Survey No. 156/1 was unwarranted. The name of defendant No. 7 is shown in the revenue record as the owner and on the basis of title document, defendant No. 7 was claiming ownership and so such issue could have been framed against the plaintiffs if the plaintiffs had claimed the relief of declaration. However, this issue is answered in favour of defendant No. 7. The trial Court has granted compensation of Rs. 5000/- which is to be paid by defendant Nos. 3 and 5 PWD and State Government and the remaining part of the suit is dismissed. As the suit is dismissed only in respect of aforesaid four lands shown to be owned by Communidade and Village Panchayat, that portion of the claim only needs to be considered in this appeal.

11. Defendant No. 7 has claimed title over Survey Nos. 154/1 and 156/1 on the basis of its record which is equivalent to the title documents. Goa Government has made compilation of law made with regard to Communidade and properties owned by it and this compilation was published on 15/4/1961. This compilation shows that the institution, Communidade has been in existence from many years and they have maintained registers of its properties. When there is dispute, the Communidade is required to publish a notice and the claim of persons like plaintiffs are heard. The institution is under control of the State Government. Evidence is given by defendant No. 7 to show that these lands were shown in the register of Communidade and during general survey also these lands came to be entered in the name of Communidade. In view of these circumstances, a query was made by this Court and learned Counsel for the appellants was asked to argue on the point of necessity of suit for declaration of title and consequential point of limitation. This is because the general survey was started in the year 1974-1975 of this village and it was promulgated many years prior to the date of the suit and some portion of survey No. 154/2 was sold in the year 1976.

12. The learned Counsel for the appellants placed reliance on the case reported in MANU/SC/7820/2008 : 2008 (9) S.C.C. 368 (Rajinder Singh Vs. State of Jammu and Kashmir and others). The facts of the reported case show that the mutation entry was under challenge and the decision of revenue authority was taken up to Supreme Court. In that context, the Supreme Court held that title was not involved in such proceeding and the entry made in the revenue record cannot confer title. There cannot be any dispute over this proposition.

13. In the case reported in MANU/SC/0543/1997 : 1996 (11) S.C.C. 257 (State of HP Vs. Keshau Ram and others), as per the facts merely on the ground of entry made in the revenue record on the basis of order made by settlement officer, the Court had decided suit of declaration of title in favour of plaintiff. The Apex Court observed that the entry in the revenue record cannot confer title. The Apex Court set aside the judgment and decree of Civil Court.

14. It is already observed that there cannot be dispute over aforesaid proposition. On the basis of this ratio, it can be said that it was necessary for the plaintiffs to prove their title over the aforesaid two lands as against defendant No. 7. They could have done so by producing documents of title. Thus, the burden was on the plaintiffs.

15. One more case reported in MANU/SC/0012/2010 : 2010 B.C.I. (soft) 35 (S.C.) : (2010) 2 S.C.C. 194, (Daya Singh and another Vs. Gurdev Singh (dead) By Lrs. and others), was cited by the learned Counsel for the appellants. The point of limitation for suit declaration was considered by the Apex Court. As per the facts of this case, the plaintiff was put in possession under compromise arrived at between the parties in a proceeding which was pending in the High Court. There was the record like report of 1976 showing that the possession was delivered to the plaintiff. In Jamabandi record of 1985-1986, the defendant was shown as owner of 12/18th share of 2/3rd share portion of the suit property when ½ portion at 2/3rd share of defendant was shown to be given to the plaintiffs in the proceeding which was comprised in the High Court. It was the case of the defendant that he was in possession and the suit was filed in the year 1990 for declaration. The Apex Court held that in view of the interpretation of Article 58 of the Limitation Act made by the Apex Court in the case reported in MANU/SC/0359/1961 : A.I.R. 1961 S.C. 808, (C. Mohammad Yunus Vs. Syed Unnisa), it needs to be held that the cause of action for declaration arises in such a case when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. In view of the facts of the case the Apex Court held that the mere existence of an adverse entry in the revenue records cannot give rise to cause of action. There cannot be dispute over this proposition also. It can be said that in such a suit if the plaintiff is able to prove his possession then cause of action may arise on different circumstance.

16. As the suit is not filed for relief of declaration, the learned Counsel for the appellant relied on the decision given by this Court (Principal Bench) in the case reported in 2003 B.C.I. (soft) 303, (Narayan Mugu Teli (since deceased) Vs. Ramchandra Mugu Teli & ors.). The facts of the reported case show that the suit was filed by the plaintiff against his brother for relief of setting aside entries made in the revenue record on the basis of will executed by their father. It was contended that the property was ancestral and so their father had no right to bequeath it to defendant. The entries were made on the basis of will executed by father of the plaintiff in favour of defendant. The Court held that the proper relief in that case was the relief of declaration. The Court held that in such case it can be presumed that the suit was one for declaration and accordingly, the amendment was allowed. The plaintiff was not to get anything even if the amendment was allowed, as it was held that the property was self acquired and was bequeathed to the defendant.

17. In the present case, even if it is presumed that the relief claimed by the plaintiff is accordingly moulded into one for declaration, the fact remains that the burden is on the plaintiffs to prove their title and further the plaintiffs were expected to prove that the suit for declaration was within limitation. For showing that the suit is within limitation, it was necessary for the plaintiffs to show that they were in possession.

18. The learned Counsel for the appellants placed reliance on the case reported in MANU/SC/0663/1994 : 1994 (2) S.C.C. 594, (Hindalco Industries Ltd. Vs. Union of India). The Apex Court has discussed the provisions of sections 14 and 15 of C.P.C. and also on provisions of Order 7, Rule 7 and Order 2 and Rule 2 of C.P.C. It is observed that it is not necessary to specifically ask for general or other relief apart from the specific relief asked for and such a relief may always be given to the same extent as if it has been asked for provided that it is not inconsistent with that specific claim which the case raised by the pleadings. This observation is in respect of the discretion given to the Court with regard to the general, ancillary relief. At the outset it can be said that theses observations cannot be extended to the provisions of section 34 of Specific Relief Act.

19. Section 34 of the Specific Relief Act reads thus:

34. Discretion of Court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.- A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.

20. The provision shows that the relief of declaration is discretionary relief and for that it was necessary for the plaintiffs to claim further relief like relief of possession. When no such relief is claimed, Court cannot make declaration under section 34. In view of the wording of section 34 of the Specific Relief Act, the ratio laid down in the aforesaid case by the Apex Court cannot be extended to the provisions of section 34 when the proviso is applicable.

21. In view of the facts of the present case, this Court has no hesitation to observe that it was necessary for the plaintiffs to claim the relief of declaration of title in respect of the aforesaid four survey numbers. Let us see whether the plaintiffs have produced material to prove their title by ignoring the point that the plaintiffs have not sought relief of declaration.

22. For the proof of title, the plaintiff has produced a copy of the Gift document dated 28/3/1958 and a notarized document containing description and inscription of some of the properties mentioned in the Gift document. Such document used to be created in this State in the past and they are treated as record of title. One more document like matriz document also used to be created which has the value like that of Revenue Record. Such document is however not produced by the plaintiff in the suit.

23. The Gift document shows that 11 immovable properties were described in the Gift document. The property No. 5 was described as "Molla" bearing No. 30.311. This property was divided in the Gift document into six equal plots. Plot No. 2 of this property was shown to be gifted to Antonio Tiago D'Costa and his wife. Property No. 9 was also shown to be gifted to these two persons but this property was not described as Molla. The second plot of property No. 5 as 3/12th portion of the property given in the Gift document. This plot was meant for paddy cultivation. It had shape of irregular quadrilateral and its boundaries had length as follows:

East - 215 metres

West - 190 metres

North - 72 metres and

South - 75 metres.

24. The boundaries of this plot were described as under:

To East - portion sold to Benedicto da Costa (plot No. 3 and 6 from property No. 5).

To West - Silvester D'Costa and Rosario D'Costa.

To North - Heirs of Inacio Manuel

To South - Plot No. 1 from property No. 5.

On page 11 of Gift document it is mentioned that the area of each plot from property No. 5 was more than ½ hectare.

25. Property No. 9 which was also given to Antonio and his wife is described as "Vallado Dumji-Bando" or "Demogy Bando"

26. The second document which is a notarized one on which there is inscription and description, the property given to plaintiff is not described though the entire land known as 'Molla" is shown. This was made in favour of other persons.

27. In view of the record of Gift document, it was necessary for the plaintiffs to prove that the property given to the plaintiffs and defendant No. 9 (defendant No. 9 got plot No. 4 from property No. 5) was given survey numbers mentioned in the plaint. From Gift document also it cannot be said that entire "Molla" (property No. 5) was given to the plaintiffs and defendant No. 9. They got only two plots mentioned above out of six plots from "Molla". Other son Inacio got plot No. 5 and one son Benedicto got plot No. 3. It is already observed that one more person got other plots.

28. Observations are made by this Court with regard to the provisions of Land Revenue Code and their importance in First Appeal No. 74 of 2000 (Shri Subray Naryan Prabhu and anr. Vs. Government of Goa and 2 others), as follows:

The provisions of the Code like Chapter XV relate to survey of lands, Chapter VIII relates to preparation of land record and Chapter IX relates to determination of boundaries at the time of survey.

The provisions of sections 49, 59, 95, 107 and 112 of the Code show that if there was some record in existence to show title that record was expected to be taken into consideration by the survey officer. If there was previous survey or other numbers earlier given to some property or the property was registered, these records were expected to be considered.

Section 99 of the Code shows that if the parties are claiming any right or interest in the property they are expected to produce the relevant documents and give necessary proof to see that entries are made in their favour on that basis.

Section 112. Determination of field boundaries.- If at the time of a survey, the boundary of a field or holding be undisputed, and its correctness be affirmed by the village officers then present, it may be laid down as pointed out by the holder or person in occupation and, if disputed, or if the said holder or person in occupation be not present, it shall be fixed by the survey officer according to the land records and according to occupation as ascertained from the village officers and holders of adjoining lands, or on such other evidence or information as the survey officer may be able to procure.

In view of section 113 of the Code, the dispute is required to be taken before the Collector and the Collector is expected to give the decision on the dispute. Section 114 of the Code runs as under:

Section 113. Disputes regarding boundaries between villages, survey numbers and subdivisions.- If any dispute arises concerning the boundary of a village or a field or a holding which has not been surveyed, or if at any time after the completion of a survey a dispute arises concerning the boundary or any village or survey number or sub-division of a survey number, it shall be decided by the Collector after holding a formal inquiry, at which the village officers and all persons interested shall have an opportunity of appearing and producing evidence.

29. In view of the procedure given in the Code, it was necessary for the plaintiffs to show all the record and give all the information to the survey officer for making entries in their favour. The case of the plaintiffs show that in respect of some lands, the names of the plaintiffs are entered in the revenue record. The survey numbers are mentioned in the plaint by the plaintiffs. Thus, it is not open for the plaintiffs to claim that they had not shown the aforesaid record to the survey officer and the entries were not made on the basis of the record. In the present case, it was open to the plaintiffs to produce copy of relevant revenue record and forms prepared during survey to show that the basis on which the survey numbers were given to the properties standing in their names. It was necessary for the plaintiffs to show that the previous cadastral survey maps, if any and the maps prepared during general survey are inconsistent. This is also not done by the plaintiffs.

30. It can be said that he plaintiffs could have easily examined the adjacent owners and they could have produced some title documents to show that the property as described in the Gift document consist of the suit survey numbers. It was necessary for the plaintiffs to show that the area of those aforesaid survey numbers match with the area given to the plaintiffs and the defendant No. 9. Such a thing was also possible if revenue map was produced for comparison along with the old cadastral map.

31. The provision of sections 95 and 38 given in the Land Revenue Code show that the record of possession is expected to be prepared during survey. The entry about the possession is required to be taken in Form I and XIV. If the plaintiffs were in possession at any time, during general survey, or even subsequent to that, the authorities would have noticed the possession of the plaintiffs. The pleadings show that no pleading of such nature is there to show as to how the plaintiffs were in possession of this portion. On other hand, there is record to show that the said portion was being used by public as road. As per gift document land given to the plaintiffs was land meant for cultivation.

32. The appointed Attorney of Communidade/defendant No. 7 has given evidence that Communidade is the owner of Survey Nos. 154/1 and 156/1. He has given evidence that lots of the properties were prepared and a lot was reserved for purpose of public road in survey No. 6455. He has deposed that the lot which was given No. 130 was reserved for road and this portion subsequently came to be numbered as survey No. 154/1 and 156/1. It is brought on record during cross-examination that not only these two survey numbers or lot No. 130 was used as road but other lots like 126 and 127 were also reserved for road by the Communidade. The plan map of the properties from that area is produced and the revenue map is also produced. The record of the map shows that the road passes not only by the side of property bearing survey No. 154/2 but also by the side of many other properties. Thus, only Communidade could have and would have left some portion of its property for the use of public.

33. As per the provision of section 105 of the Land Revenue Code, there is the presumption of the correction of entries made in the Record of Rights. It is already observed that the entry also speaks about possession. After lapse of many years, more than, 20 years, the plaintiffs were debarred from claiming the correction of entries made in favour of defendant No. 7 in the revenue record. The entries in the revenue record could have been ignored only if the plaintiffs were able to prove their possession. The statement made by the learned Counsel for the appellant that the entries made are only for fiscal purpose and do not confer title can be safely accepted but the plaintiffs failed to prove their possession and the case of the other side is consistent with the record. Presumption under section 105 of the Code needs to be used. The aforesaid circumstances and record show that the point of limitation was also involved. The record of Communidade is very old and even the general survey was started in 1974-75. However, the trial Court has observed that the cause of action took place in 2000 as per pleading from plaint. The cause of action cannot be made out only on the basis of pleadings in the plaint. The cause of action is required to be ascertained on the basis of pleadings of plaintiffs and other material discussed above. When promulgation of the survey takes place as provided under the Code, section 75, it is not open to the party to approach the revenue authority as provided in the rules framed under the Code. In such a case it becomes necessary for the party to approach the Civil Court. As the point of title was involved, the case of the plaintiffs falls under Article 58 of the Limitation Act which is residuary article of limitation. Thus even if it is presumed that the suit was for the purpose of declaration of title, the suit was not filed within limitation. The plaintiffs have produced nothing to rebut the record of Communidade. It is already observed that the plaintiffs have not brought sufficient material on the record on the basis of which the property shown in the Gift document could have been compared with the survey numbers created during general survey. Thus, the plaintiffs have failed to prove that survey Nos. 154/1 and 156/1 and other two survey numbers were part and parcel of the land gifted to the plaintiffs and defendant No. 9. As the plaintiffs have not proved the case of their title, no relief of possession or compensation could have been granted in their favour. This Court finds no reason to interfere in the findings given by the trial Court. In result the appeal is dismissed.