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2012 DIGILAW 793 (BOM)

Shri Gajanan Sazro Gaudo v. Government Of Goa

2012-04-13

U.V.BAKRE

body2012
Judgment This is plaintiffs' appeal from Judgment and Decree dated 13th August, 2003 passed by the learned Civil Judge, Senior Division, Bicholim, Goa (Trial Judge, for short) in Special Civil Suit No. 16/2002/A. The respondents were the defendants in the said suit. 2. The plaintiffs had filed the said suit for a declaration that they are the owners of the suit property and for direction that the name of Government of Goa, Daman and Diu be deleted from occupant's column and name of the plaintiffs be recorded in the said column of survey record. 3. The case of the plaintiffs, in short, is as follows : The suit property known as “Ambia Mol” situated in village Sonus-Vonvoliem of Sattari Taluka bearing survey nos. 1/2, 2/1, and 3/1 of the said village is a permanent aforamento granted to the father of the plaintiff no.1, plaintiff no. 3 and late Shri Ramnath in the year 1941 by Order dated 22nd October, 1941 by the then Governor General of Goa, Daman and Diu (Portuguese Regime) which was as per Decree no. 3602 dated 24th November, 1917. The suit property as 3 aforamentohas been registered in the name of said Late Sazro Radiyo Gaudo. An Alvara bearing no. 15 and 16 dated 22/06/1943, bearing no. 4462 of Village Sattari, Goa, has the plan attached bearing no. 13571 which was drawn in 1941 by the Survey Department showing the suit property having an area of 9 hectares, 3,650 square meters and 72 decimeters mentioned in the said plan for annual ground rent of Rs. 3/-, Annas 1 and paise 1 (3:1:1). A part of the suit property has been gifted to plaintiffs no. 1, 3 and 5 by Smt. Sundarem Sazro Gaudo by Deed of Gift dated 01/09/1989. The suit property is in occupation of plaintiffs as owners and they have their plantation and cultivation through out the said land. By inadvertent mistake/error, name of the Government of Goa, Daman and Diu appears in the occupant's column of the survey records of the suit property. This being a wrong entry, the plaintiffs filed a case before the Deputy Collector and S.D.O. for correction of the said entry in the Survey record. By inadvertent mistake/error, name of the Government of Goa, Daman and Diu appears in the occupant's column of the survey records of the suit property. This being a wrong entry, the plaintiffs filed a case before the Deputy Collector and S.D.O. for correction of the said entry in the Survey record. However, the Deputy Collector expressed his inability to effect a change on the ground that the entries are promulgated and Revenue Court has no jurisdiction to entertain the said case for correction of survey records. Therefore, the plaintiffs had to withdraw the proceedings before the Deputy Collector and had to file the present suit. On account of the wrong entry in the survey records there is a cloud or mist on the title of the suit property in relation to the plaintiffs who are owners in possession of the same and there are difficulties in projecting the ownership and possessory rights. The plaintiffs therefore served the 4 legal notice dated 20/08/2001 on the defendants calling upon them to give “No Objection” for correction of survey records, but the Government did not respond. The cause of action arose to the plaintiffs in the month of July, 2001, when the Deputy Collector had told the plaintiffs that he has no jurisdiction to entertain the application for correction of survey records and again after two months from the date of the notice dated 20/08/2001. 4. The defendants, in their written statement, have denied that the property “Ambia Mol” bears survey nos. 1/2, 2/1, and 3/1 of village Vonvoliem. They state that the suit property along with other property belongs to the Government of Goa and the Plaintiffs are entitled only to enjoy the yield of fruit bearing trees existing in the suit property and to carry out cultivation therein for which the plaintiffs have to observe all the conditions as laid down in the Alvara. It is false that the suit property has been given on the permanent lease and it is also false that any registration of the said Aforamento has been done in the name of late Sazro Radiyo Gaudo. The plan bearing no. 13571 is a cadastral survey plan. The said Sazro Radiyo audo was not regular in payment of stipulated foro due to which the aforamento has automatically reverted back to the Government of Goa. Since necessary permission required, in terms of the Decree no. The plan bearing no. 13571 is a cadastral survey plan. The said Sazro Radiyo audo was not regular in payment of stipulated foro due to which the aforamento has automatically reverted back to the Government of Goa. Since necessary permission required, in terms of the Decree no. 3602, has not been obtained and further since no bestowal proceedings have been carried out, the gift deed is bad-in-law. It is 5 false that due to inadvertent mistake or error, the name of the Government of Goa, Daman and Diu has been recorded in the occupant's column of the survey record. The plaintiffs had filed the case before the Deputy Collector only to create a cause of action. The survey records of village Sonus-Vonvoliem are promulgated in the year 1975 – 1976 and therefore the suit is barred by Law of Limitation. 5. The learned Trial Judge framed seven issues in the matter. The plaintiffs examined the Plaintiff no.1 as PW1, and one Shri Sagun Wadkar as PW 2. The defendants examined Shri Surendra Naik the Mamlatdar of Sattari Taluka as DW1. 6. Upon consideration of the entire evidence on record the learned Trial Judge has concluded that the survey of village Sonus & in particular of the land bearing Survey nos. 1/2, 2/1 and 3/1 was carried out by Government of Goa in the year 1970 and the said survey was kept open for public objection before promulgation & after promulgation also, the said records were kept open for public objections but at no point of time any objection was filed by the plaintiffs. She found that the Forms no. I and XIV produced by the plaintiffs show that the same were obtained on 04/06/1986. The Trial Judge, therefore, held that the present suit, being for declaration, ought to have been filed within 3 years in terms of Article 58 of the 6 Limitation Act and not having been so filed suffers from delay & laches and is barred by the Law of Limitation. The learned Trial Judge further found that the grant by way of Aforamento made to late Radiyo Gaudo falls into the occupants – class II and there were restrictions on transfer of the land. The learned Trial Judge further found that the grant by way of Aforamento made to late Radiyo Gaudo falls into the occupants – class II and there were restrictions on transfer of the land. She found that the grant was made to Sazro Radiyo Gaudo in the year 1941 and the plaintiffs should have obtained permanent aforamento/certificate of Alvara after 10 years i.e. after the year 1951 which has not been done. She also found that the plaintiffs have not produced any receipts of payment of foro. The learned Trial Judge has concluded that the said aforamento is not permanent. She has also held that the lands under the grant are ultimately the Government lands and therefore the name of the Government cannot be deleted. She found that when there is a question of title raised against the Government, the rights are required to be decided by authorities under the regulation and not by Civil Court. Relying upon "Joseph Anthony Gonsalves Vs. Union of India” [1996(3) ALL M.R. 213], the Trial Judge has held that there is a special provision made under Chapter III, in particular under Section 14 of the Land Revenue Code under which the dispute has to be settled by the Collector or Survey Officer and any person aggrieved by order made under Section 14(3) of the Land Revenue Code or in appeal or revision may institute a Civil Suit within a period of one year. The Trial Judge has therefore held that the plaintiffs should have raised their dispute under Section 14(3) of the Land 7 Revenue Code before the Collector and if the order was passed against the plaintiffs, then only they could have filed the present suit. She has therefore held that the suit is bad in law and liable to be dismissed. Ultimately, the suit came to be dismissed. The plaintiffs are aggrieved by the impugned judgment and decree. 7. Shri J. P. Mulgaonkar, the learned advocate, argued on behalf of the plaintiffs whereas Shri V. Rodrigues, learned Additional Government Advocate, argued on behalf of the respondents. 8. I have gone through the entire material on record. 9. The first point that arises for consideration is whether the plaintiffs are entitled to a declaration that they are the owners of the suit property? 10. 8. I have gone through the entire material on record. 9. The first point that arises for consideration is whether the plaintiffs are entitled to a declaration that they are the owners of the suit property? 10. The evidence on record duly proves that Shri Sazro Radiyo Gaudo Sonshikar was the grantee of the suit property by virtue of “Alvara de concessao” dated 22/10/1941 granted under the Decree No. 3602 dated 24th November, 1917. The Plaintiffs have also produced on record the Forms no. I and XIV of survey nos. 2/1, 1/2, and 3/1 of the suit property which are at Exhibit 16 (colly). The survey records reveal that the name of the Government of Goa, Daman & Diu has been recorded as occupant whereas name of Shri Sazro 8 RadiyoGaudo has been shown in the other rights column as holding title no. 1162 dated 15/07/1949.The evidence on record further reveals that according to the plaintiffs, a part of the suit property has been gifted to Shri Gajanan Sazro Gaudo, Shri Radiyo Sazro Gaudo and Smt. Tarem Ramnath Gaudo by Smt. Sundarem Sazro Gaudo by Deed of Gift dated 01/09/1989. However, the said gift deed has not been produced on record to prove as to how much part of the suit property has been gifted. In his cross-examination, Pw1 could not state as to how much area of the suit property has been granted to the said plaintiffs as per the gift deed. 11. The title of concession (Alvara De Concessao) is part of Exhibit 13 (colly). The grant is under Article 140 of the Decree No. 3602. In terms of Article 141 of the said decree, the procedure followed for the assignment of emphyteusis shall be that prescribed in Chapter IV of this Decree. Chapter IV of the Decree No. 3602 provides for provisional assignments. 12. It is the contention of Shri. Mulgaonkar, learned counsel for the plaintiffs that by virtue of the said “Alvara De Concessao”, read with the Gift Deed, the plaintiffs have become owners of the suit property and therefore the plaintiffs are entitled for the said declaration. He has relied upon unreported judgment of the learned Single Judge ( G. F. Couto, J.) of this Court in Special Civil Applications 9 (Writ Petitions) no. 86/B/80 and 87/B/80 (Govind G. P. Raiturcar Vs. He has relied upon unreported judgment of the learned Single Judge ( G. F. Couto, J.) of this Court in Special Civil Applications 9 (Writ Petitions) no. 86/B/80 and 87/B/80 (Govind G. P. Raiturcar Vs. Union of India), wherein it has been held that by virtue of Article 72(3) of Decree no. 3602, the ownership of the granted lands fully vest in the grantee. A perusal of the said oral Judgment dated 15/07/1983, in the case of Govind Poi Raiturkar (supra), reveals that the land that was granted in that case was completely brought under cultivation within the stipulated time of 10 years and the predecessor-in-title of the petitioner had also paid the annual ground rent (Foro) and had redeemed the property under the provisions of Article 144 read with Article 72(3) of the said Decree no. 3602 dated 24/11/1917. Clause 3 of the Article 72 of the said Decree no. 3602 enables the grantee to acquire the ownership (dominio Directo) of the granted land by paying 20 annuities of the ground rent (foro), when half of the assigned land is cultivated and the cost of the trees belonging to the Government existing in the land is paid according to the prices fixed in the schedule in force at that time. In the present case, there is no averment in the plaint nor has it been proved by way of evidence that the plaintiffs or their ancestor, at any time, have/has paid the annual ground rent (foro) and have/has redeemed the said granted land under the provisions of Article 144 read with Article 72 (3) of the said Decree. What is seen from the inscription documents produced by the plaintiffs as part of Exhibit 14 (Colly), is that only useful dominion (Dominio Util) has been inscribed in the name of Shri Sazro Radiyo Gaudo Sonshikar, whereas the “Dominio Directo” has been 10 registered in favour of Public Revenue Office, consisting of annual rent of three rupees, One anna and one pie. PW1, in his cross -examination, has stated that he is aware that as per Exhibit 13, they have to pay foro to the Government. He says that they are paying the foro. In other words no “dominio directo” has been acquired. The judgment in the case of “Govind G. P. Raiturcar”(supra) cannot help the plaintiffs. 13. PW1, in his cross -examination, has stated that he is aware that as per Exhibit 13, they have to pay foro to the Government. He says that they are paying the foro. In other words no “dominio directo” has been acquired. The judgment in the case of “Govind G. P. Raiturcar”(supra) cannot help the plaintiffs. 13. It is seen that as per the “Alvara De Concessao”, there are various restrictions placed on the grantee of the land. The provisional concessions are converted into “Aforamento” after lapse of 10 years provided all the conditions laid down for the grant are satisfied and an application is made to get the title as Aforamento. There is no evidence on record to show that after the end of the 10 years period, an application was made by the grantee and the title as Aforamento was granted to the said Shri Sazro Radiyo Gaudo Sonshikar. It is seen that as per the Article 15 mentioned in the said “Alvara De Concessao”, the trees situated in the suit property and the trees useful for timber and firewood, existing therein continue to be a property of the Government, despite the grant having been made. As per the Article 305 mentioned in the said “Alvara De Concessao” the grantees of the land who do not comply with the conditions of the contract are subject to risk of reversion of the land to the Government. Considering all the above restrictions, it can never be 11 said that the plaintiffs have acquired any absolute ownership right to the suit property. 14. The suit is filed by the sons and daughters-in-law of the said Sazro Radiyo Gaudo Sonshikar. However, the cross-examination of Shri Gajanan Gaudo, PW1 reveals that out of the wedlock of his parents, they gave birth to six children, out of which three are sons namely Gajanan, Radiyo and Ramnath (since deceased) and sisters namely Shevatu, Durge and Moga. PW 1 has stated that all his sisters are married. The elder sister Shevatu and her husband Atma have both expired and they are survived by four daughters and a son & all are living. The second sister namely Durge is living and her husband has expired but she has three daughters and five sons who all are living. The third sister Moga is married and she as well as her husband are living. The second sister namely Durge is living and her husband has expired but she has three daughters and five sons who all are living. The third sister Moga is married and she as well as her husband are living. Admittedly, the said sisters, their husbands or children have not been made parties to this suit. PW1 has admitted that the said sisters and legal representatives have right to the suit property. In such circumstances, the suit for declaration of ownership would not be maintainable. 15. Shri J. P. Mulgaonkar, learned counsel for the plaintiffs has contended that the issue of non-joinder had to be raised at the first instance that is in the written statement itself and the defendants cannot be allowed to raise the said issue for the first time in appeal. 12 He has relied upon the provisions of Order I Rules 9 and 13 of the Code of Civil Procedure. The defendants in the present case are Government of Goa and Collector and they cannot be expected to be having any knowledge about genealogy of the grantee. They would come to know about the same only by way of questions put in the cross-examination, which has happened in the present case. Be that as it may, the proviso to Order I, Rule 9 of C. P. C. says that nothing in this rule shall apply to nonjoinder of a necessary party. Similarly, Rule 13 of Order I has no application so far as necessary parties to a suit are concerned. 16. In all the circumstances above, I hold that the plaintiffs are not entitled to the relief of declaration as prayed for. 17. The next prayer in plaint is for deletion of the name of Government of Goa, Daman and Diu from the occupant's column of the survey record in respect of the suit property and to record the name of the plaintiffs in the said occupant's column. Shri Mulgaonkar, the learned counsel for the plaintiffs, invited my attention to the definition of “occupant” under the Goa, Daman and Diu Land Revenue Code, 1968. An occupant means a holder in actual possession of land, other than tenant or Government lessee; provided that, where a holder in actual possession is a tenant, the land holder shall be deemed to be the occupant. An occupant means a holder in actual possession of land, other than tenant or Government lessee; provided that, where a holder in actual possession is a tenant, the land holder shall be deemed to be the occupant. He argued that the plaintiffs are neither 13 tenants nor Government lessees but they are grantees-in-possession of the suit property. He therefore urged that even if the plaintiffs cannot get declaration of ownership in their favour, however, they are entitled to get their names entered in the occupant's column, by deletion of the name of the Government. According to the learned counsel, the trial judge has wrongly held that the prayer for correction of the survey records is barred by the law of limitation. In this regard, he has relied upon “Daya Singh and another Vs Gurudev Singh (Dead) by Lrs. and others” [(2010 2 S.C.C. 194]. In the other rights column of the Forms No. I & XIV (Exhibit 16-colly), the name of Sazro Rodio Gaudo has been recorded against the title No. 1162. The names of the plaintiffs have not been recorded as having any right. There are no bestowal proceedings held in favour of the plaintiffs. There are other heirs of the late Sazro and his wife, who have not been joined as parties. The deed of gift is not produced on record & as per the oral evidence on record, only a part of the suit property has been gifted to the plaintiffs no. 1, 3 and 5. 18. In the case of “Daya Singh”(supra), the Hon'ble Supreme Court has held that mere existence of adverse entry in revenue records does not give rise to cause of action and that the cause of action to sue accrues when right asserted in suit is infringed or there is threat to infringe that right. The plaintiffs have averred in paragraph 7 of the plaint that they had filed a case before the Dy. 14 Collector for deleting the entry of the name of the Government of Goa, Daman and Diu from the survey records but the Dy. Collector expressed his inability to effect the change in the survey records on the ground that the entries are promulgated and he has no jurisdiction. In paragraph 7 of the written statement, the defendants have averred that the plaintiffs had filed the said case before the Dy. Collector expressed his inability to effect the change in the survey records on the ground that the entries are promulgated and he has no jurisdiction. In paragraph 7 of the written statement, the defendants have averred that the plaintiffs had filed the said case before the Dy. Collector only to create a cause of action. Thus, admittedly, the plaintiffs had approached the Dy. Collector for correction of survey records. The plaintiffs, then by legal notice dated 20/8/2001 (Exhibit 17), given under section 80 of the Code of Civil Procedure, called upon the defendants to give “No Objection” for correction of the survey records. Therefore, in my view, the prayer for correction of survey records cannot be said to be barred by the law of limitation. However, still, the question is whether the plaintiffs can get such a relief from the Civil Court. 19. In the case of “NarayanMugu Teli (since deceased) vs. Ramchandra Mugu Teli” [2004 (3) All. M.R. 880], the learned Single Judge of this Court has held as follows : “It is true that the prayer made in plaint is not properly worded. Instead of seeking a declaration of his title, the respondent No.1 has prayed for deletion of the names of the appellant and other respondents from the record of rights in respect of the suit lands 15 and to enter his name therein. It is neither the function nor the jurisdiction of civil court to issue direction for making or deleting entries in the record of rights. That is the function assigned to the revenue authorities under the Maharashtra Land Revenue Code. The proper relief which respondent No.1 could have prayed for was declaration of his title to the suit lands on the basis of the Will executed by deceased Mugu Balu Teli. Once he obtains such a declaration from the court, the revenue authority will have to make or correct the entries accordingly in the record of rights in respect of the suit lands. Although, therefore, the appeal is being dismissed, the order and decree passed by the courts below will have to be suitably modified.” 20. The provisions of the Land Revenue Code of Goa are almost similar to the Maharashtra Land Revenue Code. In the case of “AnandiBhicaro Veluskar and others v/s. Kustanand Vithu Veluskar and others” [2006 (6) Bom. Although, therefore, the appeal is being dismissed, the order and decree passed by the courts below will have to be suitably modified.” 20. The provisions of the Land Revenue Code of Goa are almost similar to the Maharashtra Land Revenue Code. In the case of “AnandiBhicaro Veluskar and others v/s. Kustanand Vithu Veluskar and others” [2006 (6) Bom. C.R. 384], the learned Single Judge of Panaji Bench of this Court, has relied upon the said judgment in Narayan Mugu Teli's case and has held that the Appellate Court could not have directed insertion of the names of the plaintiffs in the survey records. In view of the above, the question of Civil Court 16 directing the deletion the name of Government of Goa, Daman & Diu from the occupant's column and recording of the names of the plaintiffs in the said column, does not arise. The plaintiffs will have to approach the appropriate authority under the Land Revenue Code for the said purpose. 21. In view of the discussion supra, the plaintiffs cannot be held to be entitled to the reliefs claimed in the suit. The impugned judgment, order and decree, therefore, does not warrant interference. 22. Hence, the appeal is dismissed, however, with no order as to costs.