However, it
has been submitted on behalf of the plaintiffs that the
main relief of the plaintiffs is recovery of possession
based on title of the plaintiffs and that the suit of
the plaintiffs is basically for recovery of possession.
There is no doubt about it. Reliance is placed In the
case of Corporation of the City of Bangalore v. M.
Papaiah and another reported in A.I.R. 1989 S.C.
1809. It was observed by the Hon’ble Supreme Court
that a suit cannot be dismissed on the ground that the
relief of declaration of title and possession has not
been specifically mentioned in the plaint. In the case
of Uchhab Gouda and others v. Ganesh Panda (A.I.R.
1963 Orissa, 71) it was observed that it is not in the
least necessary for a plaintiff in a suit for
possession to claim a declaration. Indeed declarations
in the true sense are rarely required. The plaintiff
should only allege the facts necessary to establish his
title and that the defendant is wrongfully in
possession. If he goes on to claim, in the manner so
beloved of pleaders, a declaration of title in addition
to an order for possession, the Court may and should
treat the case as a claim for possession pure and
simple and ignore entirely the claim for a ’declaration
of title’. In the case of The State of Maharashtra and
others v. Glaxo Laboratories (India) Pvt. Ltd. and
another (1979 Bom. C.R.321),the Division Bench of this
Court has held that a suit for a declaratory decree can
only be a suit of the type specified in the said
Section 34, and merely because a plaintiff choses in
the plaint to ask for declarations which are really
answers in his favour to issues which arise in the suit
does not make that suit a declaratory suit or a suit
for a declaratory decree. Again, in the case of Tanaji
M. Shetkar vs. Rukmini P. Shetkar, (1991 (2) GLT
153), it has been held that there is no necessity to
seek declaration in a suit for injunction based on
title.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO. 89 OF 1996
Shri Gopal Balcrishna Fallary,
V
State of Goa,
CORAM: N. A. BRITTO, J.
DATED: 6.04.2004
Citation:2004 (3) ALLMR 335
This appeal is directed against the
Judgment/Decree dated 11.6.1996 of the learned Civil
Judge, Senior Division, Quepem.
2. The appellants herein were the plaintiffs in SCS
No.2/1988/A. The dispute between the plaintiff and
the defendants was regarding the land surveyed under
No.35 of Village Villiena which has been referred to by
both the parties to the suit as Survey No.35/1.
3. The parties hereto are referred to in the names
as they appears in the cause title of the suit.
4. Briefly stated, it was the case of the plaintiff
that they are the owners of the property known as
"Mandabem" having Land Registration No.2124 situated at
Villiena village of Sanguem Taluka bounded on the east
by the property Irauila of Vithoba Poi Kakode; on the
west by property Velpechem Tican of Velips; on the
south by property Nouramolla of said Vithoba Kakode;
and on the north limit of village Bhati.
5. The plaintiffs stated that they reside at Margao
and rarely go to Villiena and the plaintiff No.1 when
he visited the property Mandabem about 3/4 years back,
he came to know that the Government had clear felled
forest produce and planted cashew saplings in the said
Survey No.35/1 which forms part of the property
Mandabem belonging to the plaintiffs and the defendants
had no right, title and interest in the said portion.
The plaintiffs stated survey No.35/1 was wrongly
surveyed in the name of the Government in the occupants
column of Form I and XIV of the said village and the
survey was promulgated in the year 1986. The plaintiff
stated that the said survey number forms part and
parcel of the property Mandabem situated at Villiena
and, as such the name of the Government has to be
deleted and in its place the name of the plaintiff has
to be entered in the said column of the survey.
6. The plaintiffs stated that notice dated
10.7.1987 under Section 80 C.P.C. was issued to the
defendants and defendant No.3 by letter dated 20th
July, 1987 informed the defendant No.2 that the matter
is pertaining to defendant No.2 and that the defendant
No.2 by letter dated 8.9.1987 informed the Advocate of
the plaintiffs that the Forest Department is having
cashew plantation in the said area and that there is no
question of encroachment of Forest Department in
anybody’s private land. The plaintiffs stated that the
said letter dated 8.9.87 gave cause for the plaintiffs
for entitling for a declaration of title so also for
deleting the name of the Government from the said
column of the said survey of village Villiena and for
possession of the said property under Survey No.35/1.
The plaintiffs stated that the cause of action arose on
or about three years back and in the year 1986 when the
said survey was promulgated and later on when the said
letter dated 8.9.87 was received by defendant No.2.
7. On the other hand it was the case of the
defendants that Survey No.35/1 of Villiena was known as
"Vagpad" which property was declared as National Forest
by Gazette dated 11.1.1951 Series II and the defendants
auctioned the coupes in the property in the year
1977-78 and the same was felled by the Government
contractor in the same year. The defendants stated
that the cashew plantation was raised in the year
1978-79 and cashew plantation auction from the said
property has been done for the last 5 to 6 years. The
defendants denied that the said property formed portion
of the property Mandabem. The defendants further
stated that the plaintiffs do not have any right, title
or interest in Survey No.35/1. The defendants denied
that they violated the property rights of the plaintiff
and stated that the plaintiffs have no right whatsoever
in the said property. The defendants denied that the
survey was wrongly entered in the name of the
Government. The defendants denied that the plaintiffs
were entitled to get the name of the Government deleted
from the survey records and stated that the Government
was the rightful owner of the property. The defendants
denied that the cause of action had arisen three years
back or at any other time and further stated that the
plaintiffs had no cause of action to file the present
suit.
8. In support of their case the plaintiffs examined
plaintiff No.1 (p.W.1) and Engineer Shri Vikas Dessai
(P.W.2). The defendants examined the Range Forest
Officer Shri Godinho (D.W.1) and Forest Guard Shri
Dessai (D.W.2).
9. The plaintiffs have produced their document of
title namely certificate of inscription and description
PW1/A. The plaintiffs also produced a survey plan at
Exh.PW1/B which shows that Survey No.35 has on its
northern side the boundary of village Batty. The
defendants produced their document of title namely the
said Gazette with names of Forests enlisted by the
Government. The same shows that as there was confusion
as regards to the designation of State Forest in the
Goa District, it was necessary to adopt officially more
suitable names. The said Gazette shows that there is a
National Forest belonging to the Government known as
"Vagpad" situated in " Patelado" of Batty in village
Villiena. The defendants also produced among other
documents a proclamation issued under Section 6 of the
Indian Forest Act 1927 giving the area of the said -- 6 --
"Vagpad - I Forest as 1020.00 hectares and calling upon
all persons claiming any right in or over the said land
or forest to remain present and to state the nature of
such right with particulars, etc. Admittedly the
plaintiffs have not filed any representation or
statement of their claim pursuant to the said
Notification issued under Section 6 of the Indian
Forest Act 1927.
10. The first aspect which needs to be considered is
the evidence of P.W.2 Vikas Dessai. As can be seen
from the occupation given by him, P.W.2 Shri Dessai is
a Civil Engineer. As rightly pointed out on behalf of
the defendants, P.W.2 has not claimed to be a Surveyor
who is conversant with surveying properties and
therefore it is obvious that he cannot be termed to be
an expert nor has he claimed any expertise in surveying
properties. The plaintiffs have pleaded that their
property is known as "Mandabem", but P.W.2 has stated
that he was shown a document of the property known as
"Nenden". He claims to have seen the boundaries but
does not say whether he saw the said boundaries in loco
or as per the document given to him. If the plaintiffs
have stated that their property is bounded on the south
by the property of Vitoba Kakode, P.W.2 Shri Dessai has
stated that the property on the south is that of one
Pai. According to P.W.2 the plaintiff’s property falls
part in Survey Nos.30, 32, 33, 34 and entire Survey
No.35. The plaintiffs themselves did not plead under
what survey numbers their property "Mandabem" was
surveyed. But P.W.1 stated that the other survey
numbers of their property are 33, 34 and others, but he
did not remember them all, but all the survey numbers
were touching one another. In cross-examination P.W.2
Shri Dessai has stated that he could not tell which
sub-division of Survey No.32 fell in the property of
the plaintiffs and since he did not mention the area,
he could not say howmuch area of Survey No.32 belonged
to the plaintiffs and in further cross-examination he
conceded that some portion of survey No.32 was paddy
field but that he did not remember whether the names of
the tenants were shown in the tenants column of Survey
No.32. Likewise P.W.2 Dessai stated that he could not
tell which sub-divisions of survey No.34 belonged to
the plaintiffs which lie on the west of survey No.34
and again conceded that a smaller portion of survey
No.34 was also paddy field. He stated that no part of
Survey No.32 and 34 touched the boundary of village
Batty. He further stated that he did not prepare any
report and conceded that the plaintiffs’ document did
not mention any area. In further cross-examination he
stated that the boundary marks were shown by the
plaintiffs and the same were confirmed by him. One
fails to understand that in case the plaintiffs
themselves do not know into how many survey numbers
their property is surveyed, how could the plaintiffs
ever show the boundary marks to P.W.2 Shri
Dessai? Again, P.W.2 Shri Dessai stated that plaintiff
NO.1 told him survey numbers of his property. I have
already stated that the plaintiffs themselves do not
know into how many survey numbers their property
"Mandabem" has been surveyed into and if they knew
about the same, the plaintiffs would have certainly
mentioned the said survey numbers in the plaint or
P.W.1 would have deposed regarding the said survey
numbers before the Court. If P.W.2 Shri Dessai calls
himself an expert, the least thing he could have done
is draw a plan of the property "Mandabem" as claimed by
the plaintiffs.
11. It has been submitted by learned Sr. Counsel
Shri Usgaonkar that the identification of the entire
property was not in dispute. However, the fact remains
that the plaintiffs have claimed Survey No.35 as part
of their property and therefore it was necessary fo the
plaintiffs to have shown the extent of their property
and also to have mentioned the other survey numbers
which were included in their property Mandabem.
Suffice to observe that P.W.2 Dessai has shown no
expertise in identifying the property claimed by the
plaintiffs with reference to the survey records. His
evidence therefore deserves to be rejected.
12. The second aspect which requires consideration
is regarding possession of property surveyed under
No.35. According to P.W.1 Shri Gopal Falari it is the
Government who is in possession of the said land. He
has also admitted that the Government has cultivated
cashew plantation in the said property which, according
to the Government, was done in the years 1978-79. The
survey records namely Form I and XIV of survey No.35 is
in the name of the Government. Admittedly, the said
survey was conducted somewhere in the year 1972-74 and
one could presume that the survey records were prepared
based on actual possession of the Government. Section
105 of the Land Revenue Code 1968 provides that an
entry in the Record of Rights, and a certified entry in
the registry of mutation shall be presumed to be true,
until the contrary is proved or a new entry is lawfully
substituted therefor. The plaintiffs have never
claimed in their plaint that they have been in
possession of the disputed property at any time and all
that the plaintiffs pleaded was that the plaintiff No.1
visited the property "Mandabem" somewhere in the years
1984/85 when he came to know that the Government had
clear felled the forest produce. In case the
plaintiffs had visited the property "Mandabem" claimed
by them earlier, the plaintiffs would have come to know
that the disputed land was being possessed by the
Government as part of their forest with definite
boundary marks like cairns from the year 1967, as
stated by D.W.2 Shri Dessai. The plaintiffs would have
also come to know that forest produce from the same was
cut in the years 1978-79 to make place for cashew
plantation. The plaintiffs have failed to rebut the
presumption regarding possession available to the
defendants by virtue of section 105 of the Land Revenue
Code. From the evidence led on behalf of the
defendants, it could be safely concluded that Survey
No.35 has been in possession of the defendants as part
of their forest "Vagpad" situated at Villiena at least
from the time the said forest was notified as a
National Forest by virtue of Gazette Notification dated
5.12.1950. The plaintiffs averment and the statement
of P.W.1 that in the year 1984 he happened to go to his
property and noticed that some of their trees were cut
therefore cannot be believed and it is obvious that the
same was made by the plaintiffs only to give them a
cause of action for filing the suit. The fact that no
boundaries of the forest were mentioned in the Gazette
Notification dated 5.12.1950 is of no assistance to the
case of the plaintiffs.
13. The third aspect which needs to be considered is
regarding title. Admittedly survey No.36 of village
Villiena is also bounded on the north by village Batty.
Admittedly the said survey No.36 is forest land and it
is not the case of the plaintiff that their property
Mandabem is bounded on the east by Government land or
for that matter survey No.36 belonging to the
Government. On the contrary, the case of the
plaintiffs that on the east there is a property of
Vitoba Poi Kakode which property the plaintiffs have
failed to identify. As far as the plaintiffs are
concerned, the southern boundary of their property is
again the boundary of Vitoba Kakode which the
plaintiffs have failed to identify and only because
D.W.2 has stated that to the south of survey No.35 is
private property belonging to the plaintiffs, does not
mean that the plaintiffs have identified their southern
boundary in relation to their property Mandabem. The
entire case of the plaintiffs is based on their title
document which shows the property "Mandabem" on the
northern boundary as village Batty and likewise the
survey plan shows the northern boundary of survey No.35
as village Batty. If by the said parameters survey
No.35 belongs to the plaintiffs, then survey No.36
could also belong to them because survey No.36 has also
on its northern side village Batty as its boundary but
it is not the case of the plaintiffs that survey No.36
belongs to them. As already stated P.W.1 does not even
know into how many survey numbers the property of the
plaintiffs have been surveyed. According to P.W.1
Falari their property is surveyed under Nos.33, 34 and
others which he does not know, but according to P.W.2
the property of the plaintiffs is surveyed under
Nos.30, 32, 33 and 34. At the same time it was
suggested to D.W.1 Godinho that the property of the
plaintiffs consisted of survey No.30 (part), 33 (part)
and 34(part). Likewise it was suggested to P.W.2 Shri
Dessai, survey No.35/1 on the eastern and western sides
belongs to the Forest Department. Different stands
taken by the plaintiff at different stages only show
that the plaintiffs are not at all aware about the
extent of the property claimed by them. In fact P.W.1
Falari has admitted that he does not know the total
area of his property. P.W.1 Falari does not even know
whether there is a road on the western side of his
property when the survey plan (Exh.PW1/B) shows the
existence of the road on the western side of survey
No.35. P.W.1 Falari does not know what is the area of
survey No.33 and for that matter in whose name it has
been recorded. Likewise he does not know the area of
survey No.34 or in whose name it is recorded. He also
does not know the area of survey No.35.He admits that
there is a paddy field on the eastern side of his
property but he does not know in which survey number
the same is situated. The plaintiffs have failed to
identify the western, southern and eastern boundaries
of the property claimed by them. It is therefore not
possible with the help of only one boundary namely that
of village Batty is on the north of the property
claimed by the plaintiffs to jump to the conclusion
that survey No.35 is part of the property claimed by
the plaintiffs. The plaintiffs have failed to show as
to how and when the property claimed by them which was
of coconut and paddy cultivation came to be forest
land. Suffice to observe that the plaintiffs have
failed to prove that survey No.35 is part of the
property Mandabem claimed by them.
14. Now I will proceed to consider the submissions
made on behalf of the plaintiffs at the time of
arguments. The plaintiffs inter alia prayed for a
declaration in terms of prayer (a) of the plaint which
prayer, on the plaintiffs’ own showing, is clearly time
barred. I say so because P.W.1 himself has stated that
he came to know about the possession of the Government
in the year 1984 and the suit has been filed on 7.1.88
after a period of more than three years. However, it
has been submitted on behalf of the plaintiffs that the
main relief of the plaintiffs is recovery of possession
based on title of the plaintiffs and that the suit of
the plaintiffs is basically for recovery of possession.
There is no doubt about it. Reliance is placed In the
case of Corporation of the City of Bangalore v. M.
Papaiah and another reported in A.I.R. 1989 S.C.
1809. It was observed by the Hon’ble Supreme Court
that a suit cannot be dismissed on the ground that the
relief of declaration of title and possession has not
been specifically mentioned in the plaint. In the case
of Uchhab Gouda and others v. Ganesh Panda (A.I.R.
1963 Orissa, 71) it was observed that it is not in the
least necessary for a plaintiff in a suit for
possession to claim a declaration. Indeed declarations
in the true sense are rarely required. The plaintiff
should only allege the facts necessary to establish his
title and that the defendant is wrongfully in
possession. If he goes on to claim, in the manner so
beloved of pleaders, a declaration of title in addition
to an order for possession, the Court may and should
treat the case as a claim for possession pure and
simple and ignore entirely the claim for a ’declaration
of title’. In the case of The State of Maharashtra and
others v. Glaxo Laboratories (India) Pvt. Ltd. and
another (1979 Bom. C.R.321),the Division Bench of this
Court has held that a suit for a declatory decree can
only be a suit of the type specified in the said
Section 34, and merely because a plaintiff choses in
the plaint to ask for declarations which are really
answers in his favour to issues which arise in the suit
does not make that suit a declaratory suit or a suit
for a declaratory decree. Again, in the case of Tanaji
M. Shetkar vs. Rukmini P. Shetkar, (1991 (2) GLT
153), it has been held that there is no necessity to
seek declaration in a suit for injunction based on
title. Therefore it could be conceded that prayer (a)
of the plaint as far as the plaintiffs were concerned
was not of much consequence, the plaintiff’s suit being
one filed for recovery of possession. That should take
us to Article 65 of the Indian Limitation Act 1963
which provides 12 years for a suit for possession of
immovable property or any interest therein based on
title from the date when the possession of the
defendant becomes adverse to the plaintiffs.
15. Learned Advocate Shri Usgaonkar has submitted
that the suit of the plaintiffs is within 12 years, the
same having been filed on 7.1.88 after the plaintiffs
came to know about the defendants’ possession in the
year 1984. Learned Advocate Shri Usgaonkar has placed
reliance on the case of Indira v. Arumugam reported in
A.I.R. 1999 S.C. 1549).
16. In the above case the Hon’ble Supreme Court has
observed that when the suit is based on title for
possession, once the title is established on the basis
of relevant documents and other evidence unless the
defendant proves adverse possession for the
prescriptive period, the plaintiff cannot be
non-suited. However, neither the observations of the
Supreme Court nor the submission made on behalf of the
plaintiffs is attracted to the facts of this case. I
have already concluded that the defendants are in
possession of the disputed land - survey No.35 as part
of their forest at least from the time the forest was
notified as a National Forest and thereafter, if not
earlier from the time the survey records were prepared
in the years 1972-74. I have also concluded that the
averment of the plaintiffs that the plaintiff no.1
visited their property 3 - 4 years prior to the filing
of the suit was an averment which was absolutely
unsubstantiated and/or made with a view to make out a
cause of action for filing the suit. I have also
concluded that the plaintiffs were never in possession
nor they claimed to be in possession of the disputed
survey No.35 of Villiena village which has always been
in possession of the defendants as part of their forest
"Vagpad" plaintiffs that the suit filed by them is
within 12 years cannot be accepted.
17. On behalf of the plaintiffs it is also submitted
that the defendants were not entitled to take a plea
that the forest "Vagpad" was a reserved forest.
18. Reliance has been placed on behalf of the
plaintiffs in the case of Ram Sarup Gupta (dead) by
L.Rs., v. Bishun Narain Inter College and others
(A.I.R. 1987 S.C., 1242) wherein the Hon’ble Supreme
Court has observed that it is well settled that in the
absence of pleading, evidence, if any, produced by the
parties cannot be considered. However the said
principle, in my opinion, cannot be applied to the
facts of this case. I say so because the defendants
pleaded that survey No.35 was known as "Vagpad" which
was declared as a National Forest as published in
Gazette dated 11.1.1951. If at all a copy of the
Notification issued under Section 6 of the Indian
Forest Act 1927 has been produced by the defendants, it
is only produced to show that what was declared as a
National Forest was being notified as reserved forest.
As already stated, the plaintiffs have not filed any
claim pursuant to the said Notification issued under
Section 6 of the Indian Forest Act, 1927, though till
date no order has been issued as contemplated under
Section 20 of the said Indian Forest Act 1927.
19. In conclusion it may be observed that the
plaintiffs have failed to prove both title and
possession to survey No.35 of Villiena village, being
part of their property Mandabem.
20. For the above reasons, I find that there is no
merit in this appeal and consequently the same is
hereby dismissed with costs.
N. A. BRITTO, J.
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