JUDGMENT: This appeal is directed against the Judgment and Order dated 9th October, 2003 passed the learned Civil Judge, Senior Division, Quepem (trial Court) in Regular Civil Suit No. 18/91/A. 2. This appeal was initially filed before the District Judge, South Goa, Margao and registered as Regular Civil Appeal No 11/2005. However, the same was transferred from the District Court to this Court, on account of lack of jurisdiction in view of the Goa Civil Court (Amendment) Act, 2005 and the same was forwarded to this Court along with original record and Proceedings. The appeal then came to be registered as First Appeal No. 304 of 2005. After the admission of the appeal, notice was issued to the appellant as well as to the respondents and both the parties were duly served. However, the respondents have chosen to remain absent. 3. Heard Mr. Sudesh Usgaonkar, learned Counsel for the appellant, who was the plaintiff before the learned Civil Judge, Senior Division, Quepem. 4. Parties shall hereinafter be referred to in the manner in which their names appear in the cause title in the said Regular Civil Suit No. 18/91/A. 5. The plaintiff had filed the said suit for permanent injunction to restrain the defendants from interfering in any way with and/or from auctioning the trees situated in the suit property. It was the case of the plaintiff that the plaintiff is the owner in possession of the suit property namely "Batimola" admeasuring two hectares situated in Village Bhati of Taluka Sanguem and bounded on the East by road; on the West by Government land; on the North by road; and on the South by the land held by one Shri Suresh Morajkar. The suit property is presently surveyed under number 89(part) of Bhati Village. The suit property was granted to the plaintiff by B.D.O. as per order dated 09/06/1975 and subsequently, the Collector of Goa issued necessary orders and Sanad of the land granted to the plaintiff. The grievance of the plaintiff was that all of a sudden the defendant no.1 fixed notice of auction of the trees situated in the suit property on 02/03/1991 fixing the auction on 05/03/1991, due to which the plaintiff filed the suit. 6. By way of Written statement, the defendant no.1 claimed that the land bearing survey nos. The grievance of the plaintiff was that all of a sudden the defendant no.1 fixed notice of auction of the trees situated in the suit property on 02/03/1991 fixing the auction on 05/03/1991, due to which the plaintiff filed the suit. 6. By way of Written statement, the defendant no.1 claimed that the land bearing survey nos. 80/2, 89/1 and 92/0 of Bhati Village is owned, possessed and enjoyed by the Forest Department of the Government of Goa and is surveyed in the name of Forest Department. The B.D.O. or Collector has no authority or power to grant the said land to any person including the plaintiff. The Forest Department has raised cashew plantation over an area of 20 hectares in the land surveyed under Survey nos. 80/2(part), 89/1 (part) and 92/0(part) of Bhati Village in the year 1968-69 after cutting the trees standing therein in the year 1967-68. According to the defendants, the alleged grant is merely a paper grant and that the cashew plantation has been given on auction by the Forest Department from time to time since 1978 except during 1986-88. 7. The defendant no.1 filed counter claim along with the written statement praying therein for a declaration that the said grant of land by the B.D.O. and the order of the grant no. 1(2) 93-S/83-RB dated 17th December,1983 issued by the Collector of Goa is bad in law, void ab-initio and a nullity and is not binding on the defendants. The defendant no.1 prayed for cancellation of said grant and for a permanent injunction restraining the plaintiff, his family members, relatives, agents and servants from interfering in any manner with the land bearing survey nos. 80/2, 89/1 and 92/0 of Bhati Village or with the plantation standing therein. 8. Accordingly, the trial Court framed issues as per the rival contentions of the parties. The plaintiff examined himself as PW 1 and four more witnesses namely Arjun Govind Gaonkar as PW 2, Balu Shembu Gaonkar as PW 3, Inas Rodrigues as PW 4 and a Civil Engineer, by name, Vilas Raikar as PW 5. The defendant no.1 examined Shri Raghunath Bapuji Desai, the then Assistant Conservator of Forests as DW 1, Shri Shrikant Rane, the then Head-Surveyor of the Directorate of Settlement and Land Records as DW 2 and one Shri Narayan Naik, the then Forest Guard as DW3. 9. The defendant no.1 examined Shri Raghunath Bapuji Desai, the then Assistant Conservator of Forests as DW 1, Shri Shrikant Rane, the then Head-Surveyor of the Directorate of Settlement and Land Records as DW 2 and one Shri Narayan Naik, the then Forest Guard as DW3. 9. Upon consideration of the entire evidence on record, the learned trial Court held that the defendants have proved that the land bearing survey nos. 80/2, 89/1 and 92/0 belongs to the Forest Department. He held that the B.D.O. had no power to grant the land and that the order dated 17/12/1983 at Exhibit PW1/A is null and void. In so far as, the counter claim of the defendant no.1 is concerned, the learned trial Court found that the Collector who had issued the said order was not a party to the suit and that the presence of the Collector was necessary. He further observed that the defendants can approach the appropriate Forum, if any, under the provisions of Land Revenue Code for redressal of the grievance. Ultimately, the suit as well as the counter claim came to be dismissed. The plaintiff is aggrieved by the dismissal of the suit. The defendant did not file any appeal against the decree of dismissal of their counter claim. 10. The point for determination is whether the plaintiff has proved that the suit property has been validly granted to him and he is in possession of the same. 11. Along with the suit, the plaintiff had filed Civil Miscellaneous Application No. 16/91 for temporary injunction to restrain the defendants from auctioning the cashew trees situated in the suit property. An ex-parte order as prayed for was granted by the trial Court which subsequently came to be confirmed by order dated 7/5/1993. 12. It is seen from the record and proceedings that the issue no. 2 as framed by the trial Court was whether the plaintiff proves that the suit property was granted to him by B.D.O. by order dated 09/06/1975 and issue no. 4 was whether the defendants prove that the B.D.O. had no power to grant the land. Both the issues have been answered in the negative. However, though the plaintiff had pleaded in the plaint that subsequently the Collector of Goa had issued necessary orders and sanad of the land granted to the plaintiff, however no issue with regard to the said averment was framed. Both the issues have been answered in the negative. However, though the plaintiff had pleaded in the plaint that subsequently the Collector of Goa had issued necessary orders and sanad of the land granted to the plaintiff, however no issue with regard to the said averment was framed. What has been held by the trial Court is that the B.D.O. had no power to grant land and that the plaintiff had not proved that the land was granted to him by the B.D.O. However, it has not been held by the trial Court that the Collector had no power to grant the land. The defendant no. 1, in its counter claim, had, inter alia, prayed for declaration that the alleged grant of land by order No. 1(2) 93-S/83-RB dated 17/12/1983 issued by the Collector was bad-in-law and a nullity. The plaintiff (PW1) through his oral evidence produced on record the said order of the Collector as Exhibit PW1/A which is dated 17/12/1983 which reveals that in the exercise of powers conferred under Section 21 of The Goa, Daman and Diu Land Revenue Code, 1968 ('the code', for short) read with Rule 10 of The Goa, Daman and Diu Land Revenue ( Disposal of Government Lands) Rules,1971 (the Rules, for short), the Government land as described therein has been granted in occupancy rights to the plaintiff. The survey number of the land granted has been mentioned as 89(part). Area has been mentioned as two hectares and land has been described as Government land known as “Bhatimola” bounded on North by road, on South by land held by Shri Suresh Morajkar, on East by road and on West by Government land. There are certain conditions under which the said grant was made. One of the conditions was to bring the land under cultivation before the expiry of two years from the date of grant and another condition was to pay full assessment of land when so determined. Another condition was to pay occupancy price of ` 2500/- and in addition to that the grantee was liable to pay the amount as determined by the Mamlatdar in consultation with the respective R.F.O. Said order dated 17/12/1983 further says that if the grantee commits a breach of any of the conditions, the land granted to him shall be resumed and the grantee shall be liable to be evicted from the land. The plaintiff(PW 1) had produced the certificate of grant of land which is dated 08/05/1985 and which is at Exhibit PW 1/B. It has been certified that the plaintiff has been granted w.e.f. 17/12/1983 the occupancy right in perpetuity in the land described in the schedule on payment of occupancy price of Rs. 2,500/- for the purposes of cultivation. The same land which is described in the order dated 17/12/1983(Exhibit PW1/A) has been described in the certificate of grant(Exhibit PW1/B). The plaintiff (PW1) further produced the plan of the said Government land known as "Bhatimola" bearing survey no. 89/1 (part) situated at Bhati village at Sanguem Taluka granted in occupancy rights to the plaintiff and Smt. Subhadra Pandurang Gosavi vide Collector's order no. 1(2) 93-S/83-RB dated 17/12/1983 which plan is at Exhibit PW1/C. The plaintiff (PW1) also produced the survey report prepared by the Directorate of Land Survey as Exhibit PW1/D which shows that the plaintiff and said Subhadra have been granted the suit property. The plaintiff also produced the form III by which he had undertaken to comply with the conditions of the grant. There are on record the challans of payment of occupancy price made by the plaintiff towards the said grant and these challans are at Exhibit PW1/F colly. 13. There is no dispute that the Collector is empowered to grant such land under Section 21 of the Code and Rule 10 of the Rules. Admittedly, the plaintiff has not been evicted from the said land by procedure established by law and the suit property has not been reverted back. It is nobody's case that there is breach of any conditions of the grant. Even, the learned trial Court, in the impugned judgment, has dismissed the counter claim filed by the defendant no.1 wherein inter alia it was prayed for declaration that the said grant of land by order dated 17/12/1983 issued by the Collector of Goa is bad in law and void ab-initio. It is pertinent to note that the trial Court observed that since the Collector is not a party to the suit the said order cannot be declared as null and void and in any event the defendants can approach the appropriate forum under the provisions of Code for redressal of grievances. Section 188 of the Code provides for appeal against any order passed under the Code. Section 188 of the Code provides for appeal against any order passed under the Code. If the order is passed by Collector, the appeal has to be filed to the Tribunal. In the present case, it is not the case of the defendants that any appeal under Section 188 of the Code was filed. It is not understood as to how though the trial Court had dismissed the counter claim, it however held that the order of the Collector at Exhibit PW1/A is a nullity and void abinitio. The trial Court forgot that there is subsequent certificate of grant of the suit property in favour of the plaintiff which is dated 8/5/85 and which is at Exhibit PW1/B. The trial Court has not held that this certificate of grant is also null and void. In the circumstances above, merely because the name of Forest Department is shown as occupant in survey holding no. 89/1 that does not take away the occupancy right of the plaintiff. Even otherwise, the form No. I and XIV of Survey no. 89/1 which is at Exhibit 61 reveals that the entire area of the said survey holding is 3.97 hectares. According to the defendants, as averred in paragraph 4(c) of the written statement, only a part of survey no 89/1 was brought under cashew cultivation by the Forest Department. The plaintiff has been granted only part of the said survey holding no. 89/1 to the extent of two hectares, which has been identified in the plan at Exhibit PW1/C, and further identified by PW5 in his report and plan at Exhibit PW5/A colly. Insofar as the said area of two hectares is concerned the presumption under Section 105 of the Land Revenue Code with regard to the said survey no. 89/1 stands rebutted, by the documents of grant and the challans at Exhibit PW1/F colly, which pertain to the payment made by the plaintiff towards occupancy price of the suit property. 14. The learned trial Court has observed that the certificate of grant which is at Exhibit PW1/B shows that the said grant has been effected for the purpose of cultivation. It is further observed that the plaintiff has also produced licenses for extraction of cashew juice as Exhibit PW1/F Colly from the year 1985 onwards. 14. The learned trial Court has observed that the certificate of grant which is at Exhibit PW1/B shows that the said grant has been effected for the purpose of cultivation. It is further observed that the plaintiff has also produced licenses for extraction of cashew juice as Exhibit PW1/F Colly from the year 1985 onwards. The trial Court has observed that if the said grant was given with effect from 17/03/1983 for the purpose of cultivation, how is it possible to extract cashew juice from the year 1985 onwards as it is a matter of common knowledge that no cashew saplings will yield cashew apples within two years. The trial Court has further observed that the licenses produced by the plaintiff are in respect of the property situated at Uguem whereas the suit property is admittedly situated at Bhati. On such shaky grounds, the learned trial Court has suddenly held that the order dated 17/12/1983 (Exhibit PW1/A) is null and void. The said excise licenses at Exhibit PW1/F colly are in respect of the groves “Bhati” situated at Bhati, 7th A Uguem. Uguem 7th A is the zone. It is pertinent to note that in the plaint the plaintiff has pleaded that he has been in possession, occupation and enjoyment of the suit property and trees situated therein for last more than 30 years and has been extracting juice from the apples. In his oral evidence also the plaintiff (PW1) has stated so and there is corroboration to the same from PW 2, PW 3 and PW 4. In such circumstances, the observation, as above, of the trial Court was not proper. 15. There is no dispute that beyond the road towards eastern side of survey no. 89/1 (part) there is Government land comprising of cashew grove and on northern side also beyond the road there is cashew grove of the Government. Again, the said cashew plantation is of the age group of 30-35 years. However, the plaintiff is not claiming any land beyond the suit property which is on the boundary. Merely because on some sides, the suit property is surrounded by the Government land, that cannot automatically mean that the suit property belongs to the Forest Department. There is nothing to prove that the auction records produced by the defendants pertain to the suit property. There is property of the Government in survey no. Merely because on some sides, the suit property is surrounded by the Government land, that cannot automatically mean that the suit property belongs to the Forest Department. There is nothing to prove that the auction records produced by the defendants pertain to the suit property. There is property of the Government in survey no. 89/1 and the plaintiff is claiming only a part of the Survey no. 89/1. The learned trial Court has held that the letter at Exhibit 79 pertains to the suit property and conclusively proves that the suit property could have never been given to the plaintiff as a grant. I fail to understand as to how a simple letter written by Directorate of Land Survey to the Collector of Goa can defeat the grant statutorily made under the provisions of the Code, in favour of the plaintiff. The learned trial Court has observed that in view of the voluminous evidence adduced by the defendants regarding the suit property, there was no necessity for the defendants to examine the employees of the Forest Department who were working at the time of plantation or to produce the muster roll of the said labourers. A perusal of the record reveals that no reliable evidence, forget about voluminous evidence, has been adduced by the defendants with regard to their claim of ownership and possession of the suit property. 16. Since the counter claim of the defendant no.1 has been dismissed, grant of the suit property made to the plaintiff, under the provisions of the Code and the Rules remains valid until it is cancelled and land is reverted back to the Government. Till then the plaintiff is entitled to enjoy the suit property without interference from the defendants. 17. In the circumstances above, the impugned judgment and order cannot sustain since the same is not in accordance with the settled principles of law. The plaintiff is bound to succeed in the suit. 18. In the result, (a) The appeal is allowed. (b) The impugned judgment, order and decree is quashed and set aside. (c) Regular Civil Suit No. 18/91/A is decreed. The defendants are permanently restrained from interfering in any way and/or from auctioning the trees situated in the suit property. (d) Decree shall be drawn in terms above. (e) Appeal stands disposed of accordingly.