The Apex Court in the judgment reported in
(2010) 2 S.C.C. 194 in the case of Daya Singh &
anr. vs. Gurudev Singh (Dead) by LRs & Ors., has
observed at para 18 has stated thus :
In this view of the matter, we do not find
any ground to agree with the findings of the high
Court that the suit was barred by time because of
its filing after 18 years of entering into the
compromise.
The question of filing the suit
before the right accrued to them by compromise
could not arise until and unless infringement of
that right was noticed by one of the parties. The
High Court in the impugned Judgment, in our
view, had fallen in grave error in holding that the
suit was barred by time and had ignored to
appreciate that the rights of the appellants to
have the revenue record accrued first arose in
1990 when the appellants came to know about
the wrong entry and the respondents failed to
join the appellants in getting it corrected. In our
view, the High Court was not justified in holding
that mere existence of a wrong entry in the
revenue records does not, in law, give rise to a
cause of action within the meaning of Article 58
of the Act. No other point was urged before us
by the learned counsel for the parties.”
Considering the ratio laid down by the Apex
Court, merely entering the name in the Survey
Records by itself would not give a cause of action to
the Appellant/Plaintiff to file a suit for declaration
unless his right to enjoy the property has been
infringed or at least there is a clear and unequivocal
threat to infringe the right of the Appellant/Plaintiff
in the suit property. As such, the Lower Appellate
Court, was not justified to come to the conclusion
that the suit for declaration was barred by limitation
taking note of the cause of action as pleaded in the
plaint.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 197 OF 2007
Shri Vidhyadhar Atmaram Umarye @
Venkatesh Atmaram Umarye
V/s.
The Chief Secretary,
Government of Goa,
Panaji, Goa.
CORAM :- F.M. REIS, J.
Date : - 21st March, 2014.
Citation;2014(6)MH.L.J 250
The above appeal challenges the Judgment and Decree
dated 24th April, 2007 passed in Civil Suit No.5/04(new), whereby the
suit filed by the appellants for declaration and permanent injunction
came to be dismissed.
3.
Mr. Ramani, learned Counsel appearing for the appellants
has assailed the impugned judgment on the ground that the disputed
property forms part and parcel of the property “Nacutxy” or
“Ambachem Ghol” situated at Village Kudchirem of Sattari Taluka,
described in the Land Registration Office under No. 4797
and
surveyed in the record of rights under Survey No.211/1, 211/2 and
211/3, totally admeasuring an area of 1,74,739 sq. metres,
approximately. The learned Counsel further points out that the said
property came to be described in the Land Registration Office in view
of
a partition document executed between the ancestors of the
appellants way back in the year 1890, wherein the disputed property
was divided between three
co-sharers. The learned Counsel has,
thereafter, taken me through the description and inscription of the
disputed property and pointed out that the boundaries of property have
been correctly defined in the Land Registration Office inasmuch as the
northern boundary of the property is the river which is found at the site
towards the northern side of the survey number. The learned Counsel
further points out that in the survey records, the names of the appellants
are shown as lessees of the land and the Government as Occupant and,
as such, the appellants have filed the suit for declaration of ownership
of the suit property. The learned Counsel further points out that the
property belonging to the appellants is shown in the cadastral survey
plan under No.208, disclosing the area as 1,74,739 sq. metres. The
learned Counsel further points out that it is not in dispute that the
property as surveyed under No.208 corresponds to the property
surveyed under No.211/1, 211/2, and 211/3 as per the record of rights
promulgated under the Land Revenue Code. The learned Counsel
further points out that as respondent No.1 was in the process of
building an approach road to a bridge without the consent of the
appellants, they were forced to file the suit for declaration of title and
permanent injection. The learned Counsel further points out that the
respondents have produced along with the cadastral survey plan the
records which, according to him, make an endorsement to the effect
that in the said property surveyed under No.208, there is an usurpation
of the Government land which property otherwise stands in the names
of the ancestors of the appellants. The learned Counsel has, thereafter,
taken me through the translation as provided by the respondents and
pointed out that it is a wrong translation provided by the respondents
as, according to him, the translation suggests a totally erroneous
position inasmuch as
it states that in the usurpation there is
a
government land which has a totally different meaning. The learned
Counsel further points out that even assuming that the land had been
encroached by the ancestors of the appellants, admittedly,
the
respondent Government has not initiated any proceedings for eviction
of the appellants and, as such, this by itself entitles the appellants to a
declaration of title as claimed by them. The learned Counsel further
points out that the learned Judge has erroneously taken a different
angle to the dispute raised by the respondents by assuming that the
property under Survey Nos. 211/1, 211/2, 211/3 belongs to the
respondent Government and considering the difference in the area, an
additional area of 2000 sq. metres only belongs to the appellants. The
learned Counsel points out that there is no defence raised by the
respondents on this count, nor any foundation laid by the respondents.
The learned Counsel points out that the property has different types of
8
FA 197-07
plantation such as paddy field, arecanut garden, caju grove, coconut
trees, etc., which clearly disclose that such a property is a private
property. The learned Counsel further points out that the respondents
have not brought in any evidence to show that they were ever in
possession of the property or that they have enjoyed the said property
through any other person on their behalf. The learned Counsel further
points out that in any event, DW.1 has clearly admitted that the
Government is not in possession of any portion of the property. The
learned Counsel has, thereafter, taken me through the impugned
judgment and pointed out that the learned Judge has erroneously held
that the presumption under Section 105 of the Land Revenue Code,
arises in favour of the respondent Government, when such
presumption, if any, stood rebutted in view of the admission by DW.1
that the Government was never in possession of the property. The
learned Counsel further points out that once the property is registered
in the Land Registration Office in the name of the ancestors of the
appellants, the presumption under Article 953 of the Portuguese Civil
Code is to be drawn that the property belongs to the appellants. The
learned Counsel has taken me through the impugned judgment and
pointed out that the learned Judge did not consider the evidence led
9
FA 197-07
by the appellants, besides the oral evidence led by the parties to
erroneously dismiss the suit filed by the appellants.
The learned
Counsel further points out that the learned Judge has erroneously come
to the conclusion that the suit is barred by limitation when it is now
well settled that a suit for declaration of title cannot be barred by
limitation, unless the title of the property stands extinguished by
prescription/adverse possession. The learned Counsel further points
out that the filing of the suit for declaration is a continuous cause of
action which a party can file as long as the title subsists. The learned
Counsel further points out that as there is no dispute that the appellants
are in possession of the property and that the title clearly flows in
favour of the appellants, the learned Judge was not justified in passing
the impugned judgment which deserves to be quashed and set aside.
4.
Shri Usgaonkar, learned Counsel appearing for respondents
No.16 and 17 has adopted the submissions advanced by Shri Ramani,
learned Counsel appearing for the appellants. The learned Counsel
further points out that considering the material on record, the learned
Judge was totally wrong
in dismissing the suit when there was
overwhelming evidence produced by the appellants, not only
documentary, but also oral evidence to establish that the appellants and
10
FA 197-07
respondents No.16 and 17 have ownership and also possession over the
disputed property.
5.
Mr. Vehidulla, learned Government Advocate appearing for
respondents No.1 to 5 has supported the impugned judgment. The
learned Counsel has pointed out that the respondents are in possession
of the disputed property and according to him, the records reveal that a
part of the property belongs to the Government. The learned Counsel
further points out that DW.1 in his deposition has clearly stated that the
respondents Government is in possession of the property and as the
appellants have failed to establish that the property bearing Survey
Nos.211/1, 211/2, and 211/3 forms part and parcel of the property
described in the Land Registration Office, the learned trial Judge was
justified to dismissed the suit filed by the appellants. The learned
Govt. Advocate further points out that the duly promulgated survey
records stand in the name of the Government which further establishes
that the property belongs to the respondents/Government. The learned
Counsel further points out that the respondents have clearly established
that the disputed property is a forest land which belongs to the
respondents/Government. The learned Counsel has thereafter taken me
11
FA 197-07
through the evidence on record, as well as the impugned judgment
and pointed out that the learned trial Judge has rightly drawn the
presumption under Section 105 of the Land Revenue Code to come to
the conclusion that the respondents Government have ownership and
possession of the disputed property. The learned Counsel as such
points out that the appeal deserves to be rejected.
6.
Upon hearing the learned Counsel for the parties and on
perusal of the record, the following points for determination arise in the
present appeal :
(1)
Whether the learned trial Judge was justified to
come to the conclusion that the disputed property under
Survey Nos. 211/1, 211/2 and 211/3 does not belong to the
appellants ?
(2)
Whether the learned trial Judge was justified to
come to the conclusion that the suit is barred by
limitation ?
7.
With regard to the first
point for determination, the
records reveal that the appellants, in support of their claim of title and
ownership over the suit property, have produced the land registration
12
document.
FA 197-07
On perusal of the land registration record, I find that the
property which has been described therein at No.4794 at page 25 of
book B 13 (New) stands in the name of the ancestors of the appellants.
The property as described therein clearly shows that towards the
northern side is the river; whereas towards the east and west there are
running down waters.
8.
The cadastral survey plan produced on record discloses
that there is a property which is surveyed under No.208. The property
disclosed in the said cadastral survey plan surveyed under No.208, has
an area of 1,74,739 sq. metres. The said area clearly matches with the
area claimed by the appellants. A perusal of the survey records in
respect of the property bearing Survey No.211/1, 211/2 and 211/3,
reveal that the said property admeasures roughly an area of 1,71,800/-
sq. metres.
On going through the evidence of PW.1, I find that the
fact that the property as shown in the cadastral survey plan under
No.208 corresponds to the new survey records under No.211/1, 211/2
and 211/3, has not been disputed. The cadastral survey record clearly
shows that the same stands in the name of the ancestors of the
appellants. No doubt there is an endorsement in the said cadastral
13
FA 197-07
survey to the effect, inter alia, that in the said survey number there is
an usurpation of the land of the
Government which
has to be
separated in accordance with law though, prima facie, the translation
supplied
by the respondents does not appear to be an accurate
translation. There is nothing in the document which suggests that the
said property is an usurpation wherein the Government land is located
as stated in the translation. This impression stated in the translation
does not prima facie appear to be correct considering the original
document produced on record. The records also do not reveal that the
respondent/Government has taken any steps for eviction of the
appellants or for restoration of the possession of any portion of the
property which was originally surveyed in the cadastral survey No.208.
In such circumstances, it was incumbent upon the learned trial Judge to
consider on the basis of the land registration document whether the
property belonged to the appellants or not. The presumption under
Article 953 of the Portuguese Civil Code
is as such available in
favour of the appellants and other co-owners. Once such presumption
is drawn,
the learned Judge was not justified to come to the
conclusion that such presumption can be rebutted
document.
by the revenue
14
9.
FA 197-07
On perusal of the judgment of the learned trial Judge, I
find that the learned Judge has been swayed with the fact that the
property stands recorded in the Record of Rights in the name of the
Government in the occupant's column. It is now well settled that
entries in the survey records do not confer any title in favour of the
person whose name figures therein. In any event, the presumption of
possession under Section 105 of the Land Revenue Code
stands
rebutted in view of the categorical admission of DW.1 that the
Government is not in possession of the said property. The learned
Judge has lost sight of this fact while passing the impugned judgment
to draw a presumption under Section 105 of the Land Revenue Code
in favour of the Government/respondent.
Once the said respondents
themselves have admitted that they were not in possession of the
property, it was expected of the learned Judge to examine the record
and ascertain whether the appellants have established that the property
as described in the Land Registration Office
corresponds to the
disputed property claimed by the appellants. The learned Judge has
failed to examine the record in the manner as required in law and
consequently, in the interest of justice it would be appropriate to quash
15
FA 197-07
and set aside the judgment of the learned Judge and remand the matter
to the trial Court to decide the suit afresh, in accordance with law.
The first point for determination is answered accordingly.
10.
With regard to the the second point for determination, the
learned Counsel Shri Ramani appearing for the appellants is justified
to contend that the suit is not barred by law of limitation. Merely
because a name of a particular person figures in the survey records, by
itself does not give any cause of action to a party to file a suit for
declaration of title. This Court, in a Judgment dated 17 th January,
2014 in Second Appeal No. 82/2007, on relying upon a judgment of
the Apex Court reported in (2010) 2 S.C.C. 194 in the case of Daya
Singh & anr. vs. Gurudev Singh (Dead) by LRs & Ors., has observed
at para 5 thus :
“5.
... In the present case, unless and until the
Respondents establish that they have become owners
by adverse possession, the findings of the learned
Judge that the suit is barred by limitation is
unsustainable and deserves to be quashed and set
aside. The Apex Court in the judgment reported in
(2010) 2 S.C.C. 194 in the case of Daya Singh &
anr. vs. Gurudev Singh (Dead) by LRs & Ors., has
observed at para 18 has stated thus :
18.
In this view of the matter, we do not find
any ground to agree with the findings of the high
Court that the suit was barred by time because of
its filing after 18 years of entering into the
compromise.
The question of filing the suit
before the right accrued to them by compromise
could not arise until and unless infringement of
that right was noticed by one of the parties. The
High Court in the impugned Judgment, in our
view, had fallen in grave error in holding that the
suit was barred by time and had ignored to
appreciate that the rights of the appellants to
have the revenue record accrued first arose in
1990 when the appellants came to know about
the wrong entry and the respondents failed to
join the appellants in getting it corrected. In our
view, the High Court was not justified in holding
that mere existence of a wrong entry in the
revenue records does not, in law, give rise to a
cause of action within the meaning of Article 58
of the Act. No other point was urged before us
by the learned counsel for the parties.”
Considering the ratio laid down by the Apex
Court, merely entering the name in the Survey
Records by itself would not give a cause of action to
17
FA 197-07
the Appellant/Plaintiff to file a suit for declaration
unless his right to enjoy the property has been
infringed or at least there is a clear and unequivocal
threat to infringe the right of the Appellant/Plaintiff
in the suit property. As such, the Lower Appellate
Court, was not justified to come to the conclusion
that the suit for declaration was barred by limitation
taking note of the cause of action as pleaded in the
plaint.
The first substantial question of law is
answered accordingly.”
10.
Considering the said observations, I find that the finding
of the learned Judge that the suit for declaration of title in the present
case is barred by law of limitation cannot be sustained. It is the case
of the appellants that the respondents started constructing a road
through their property without complying with the provisions of the
Land Acquisition Act which, when they learnt about the erroneous
entry in the survey records, forced the the appellants to file the suit for
declaration of title and permanent injunction. Hence, it cannot be said
that the cause of action which forced the appellants to file the suit is
barred by law of limitation. The findings in the impugned judgment
given by the learned trial Judge, on that count, as such, deserve to be
quashed and set aside. The second point for determination is answered
accordingly.
11.
In the facts and circumstances of the case, considering the
nature of the dispute in the present case, the learned Judge would have
to decide the issues No.1 and 4 afresh, after hearing the parties, in
accordance with law.
The parties are also at liberty to supply a true
translation of the cadastral plan referred to hereinabove.
12.
In view of the above, I pass the following order :
(I) The appeal is partly allowed. The impugned judgment
and decree dated 24th April, 2007 is quashed and set
aside. Civil Suit No.5/04(new) is restored to the file of
the learned District Judge, North Goa, Panaji.
(II) The learned District Judge is directed to decide the
said civil suit afresh, in the light of the observations
made hereinabove in accordance with law with regard
to issue Nos. 1 and 4 referred to hereinabove, as
expeditiously, as possible.
(III) All contentions of
the parties, on merits in that
regard, are kept open.
(IV) The parties are directed to appear before the learned
District Judge, North Goa, Panaji on 16 th June, 2014 at
10.00 a.m.
F.M. REIS, J.
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