JUDGMENT Heard Mr. P. S. Lotlikar, learned counsel appearing for the appellants and Mr. M. Salkar, learned Government Advocate appearing for the respondent. 2. The above appeal challenges the judgment passed by the learned Ad-hoc District Judge-2, South Goa, Margao, in Civil Suit No. 4/2007 dated 19.11.2007 whereby the suit filed by the respondent came to be decreed. 3. Briefly, the facts of the case are that the respondent instituted a suit for declaration, correction of survey records and permanent injunction with regard to the piece of the land called "Carakol" which bears survey no.43/1. It was the contention of the respondent that when the survey of the property bearing survey no.43/1 was conducted, it was not surveyed in the name of the Government. The respondent then filed an application seeking correction of the survey records. The appellants filed their written statement disputing the claim put forward by the respondent. It was the case of the appellants that there exists property known as "Parnagaly" or "Podnangally" at Maulinguem in the village of Cotigao Village of Canacona Taluka and that after the liberation of Goa, the property was surveyed under No.43/1 admeasuring an area of 53,400 square metres. It is further their case that the property is a paddy field and that the said property was wrongly recorded as "Carakol" instead of "Parnagaly". It was further disputed that the property surveyed under No.43/1 is the property known as "Carakol". It appears that in the proceedings which were initiated before the survey authorities raising objections to the record of rights, the Additional Collector by an order dated 08.10.1998 directed the inspector of land survey to examine the matter and enter the portion of the property as claimed by the respondent in terms of the said order. Accordingly, on 23.12.2005 the survey officer bifurcated the said property into two portions, one bearing survey no.43/1 and other bearing survey no.43/l (A). The property surveyed under no.43/l (A) was entered in favour of the respondent herein whereas the remaining portion surveyed under no.43/1 was entered in the name of the appellants herein. Being aggrieved by the said order, the appellants preferred an appeal before the Administrative Tribunal. But however, in terms of the provisions of Section 14(4) of the Land Revenue Code, the respondent filed the said suit inter-alia seeking for the reliefs referred to herein above. 4. Being aggrieved by the said order, the appellants preferred an appeal before the Administrative Tribunal. But however, in terms of the provisions of Section 14(4) of the Land Revenue Code, the respondent filed the said suit inter-alia seeking for the reliefs referred to herein above. 4. The learned Judge after framing the issues and recording of evidence by the impugned judgment and decree dated 19.11.2007 decreed the suit filed by the respondent. The learned Judge inter-alia held that the boundaries as shown in the land registration document and matriz document are different and further found that the property was shown as paddy field whereas the survey records show otherwise. .The learned Judge further found that the boundaries shown in the land registration certificate as far as three sides are concerned, apparently tally whereas the property on the western side shows the name of a private person which is not in accordance with the western boundary of the property surveyed under No.43/l. The learned Judge as such found that as the appellants have failed to establish that the property as claimed by them corresponds to the property surveyed under No.43/1 decreed the suit filed by the respondent. Being aggrieved by the said judgment, the appellants have preferred the present appeal. 5. Mr. Lotlikar, learned counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that though the appellants have produced their documents of title namely the land registration certificate at Exhibit 46 Colly and the matriz document at Exhibit 47 Colly, the learned Judge has not scrutinized the said documents to ascertain the extent of the property vis-a-vis the survey records and summarily rejected the documents only on the ground that the property is shown as a paddy field. The learned counsel further pointed out that once the property is registered in the Land Registration Office, the effect of Article 953 of the Portuguese Civil Code inhere to the benefit of the appellants and as such, learned Judge was not justified to reject the claim of the appellants merely because one of the boundaries does not tally with the boundary of the property surveyed under no.43/1. The learned counsel further pointed out that the learned Judge has relied upon the notification produced by the respondent which shows a Forest known as Tiruval which according to him does not correspond to the said property and has been wrongly accepted by the learned Judge. The learned counsel further pointed out that the appellants have produced evidence to establish their possession over their property and considering such possession and' corroborated documentary evidence produced by the appellants, the learned Judge was not justified to pass the impugned judgment. The learned counsel has taken me through the impugned judgment and pointed out that the learned Judge has merely accepted the evidence of an expert witness of the respondent without ascertaining whether the depiction by the said expert has been corroborated by any documentary evidence. The learned counsel further pointed out that the report of the expert who claimed that the suit property belongs to the Forest Department has not corroborated such findings by any cogent evidence on record. The learned counsel has taken me through the evidence of the said expert and pointed out that in the cross examination the said expert has not substantiated his findings with that regard. The learned counsel further pointed out that in case the learned Judge found that the identity of the property as claimed by the appellants could not be established, it was incumbent upon the learned Judge to resort to the powers under Order 26 Rule 9 of C.P.C., and appoint a Court Commissioner to identify the suit property. The learned counsel further pointed out that the appellants have produced the land registration certificate and matriz document whereas the respondent has failed to produce any document which remotely link the suit property as belonging to the respondent and as such the learned Judge was not justified to pass the impugned judgment. The learned counsel further pointed out that the Revenue Authority namely the Dy. Collector after a detailed inquiry had come to the conclusion that the portion of the property which was earmarked to be surveyed under No.43/l (A) was a part and parcel of the property of the appellants. The learned counsel further pointed out that the learned Judge while passing the impugned judgment has not even considered the said order of the Dy. Collector nor given any findings as to why such order could not be relied upon. The learned counsel further pointed out that the learned Judge while passing the impugned judgment has not even considered the said order of the Dy. Collector nor given any findings as to why such order could not be relied upon. The learned counsel as such submits that the learned Judge has not considered the well settled principles of law while deciding the suit and as such the impugned judgment passed by the learned Judge deserves to be quashed and set aside. 6. On the other hand, Mr. M. Salkar, learned Government Advocate appearing for the respondent has supported the impugned judgment. The learned counsel has pointed out that the learned Judge has come to the conclusion on the basis of appreciation of evidence that the appellants have failed to establish that the property claimed by them and registered in their favour can be identified at loco with the suit property bearing part of survey No.43/1. The learned counsel further pointed out that the survey records disclose that the suit property belongs to the respondent. The learned counsel further pointed out that the order of the Dy. Collector in any event does not bind the Civil Court and it was open to the Civil Court to assess the evidence on record and draw a conclusion as to whether the property claimed by the respondent belongs to them. The learned counsel thereafter has taken me through the boundaries in the documents produced by the appellants and pointed out that such boundaries do not correspond to the property now surveyed under No.43/1. The learned counsel further submitted that the property surveyed under survey No.43/1 is a part and parcel of the forest area which has otherwise been notified for that purpose. The learned counsel further pointed out that it was incumbent upon the appellants if they so desire to seek for the appointment of the commissioner and having failed to do so, it is not open to the learned counsel appearing for the appellants to suggest that such exercise could have followed by the learned Trial Court. The learned counsel has taken me through the impugned judgment and pointed out that the learned Judge has given cogent reasons to discard the documents of title produced by the appellants and as such no interference is called for in the impugned judgment. 7. The learned counsel has taken me through the impugned judgment and pointed out that the learned Judge has given cogent reasons to discard the documents of title produced by the appellants and as such no interference is called for in the impugned judgment. 7. Upon hearing the learned counsel and on perusal of the records, the following point for determination arises in the present appeal. POINT FOR DETERMINATION Whether the learned Judge has rightly appreciated the material on record to come to the conclusion that the property surveyed under No.43/l does not correspond to the property described in the Land Registration Office under No.6418 as claimed by the appellants? 8. On perusal of the impugned judgment passed by the trial Court, I find that the learned Judge while assessing the material on record has essentially considered that the property described in the land registration document and inscribed in the matriz records does not correspond to the property surveyed under No.43/1. The learned Judge however pointed out that the boundaries on three sides i.e. on the northern, eastern and southern side correspond to the boundaries as shown in the land registration document but however, the boundaries towards the western side does not correspond to the boundaries as shown in the said document. In case such findings is accepted, it was expected of the learned Judge to identify the said boundaries in the survey plan of survey No.43/1. Merely because the revenue records disclose that for the payment of revenue the property is a paddy field does not by itself suggest that it can remain so even after such long lapse of time. Apart from that, it was the contention of the appellants that during the passage of time, the said property has been converted into a bharad land. It is also pertinent to note that in the inquiry under Section 14(1) of the Land Revenue Code, the learned Dy. Collector in the said order referred to herein above had held that a portion of the said property surveyed under No. 43/1 would be part of the property of the appellants. It is also pertinent to note that in the inquiry under Section 14(1) of the Land Revenue Code, the learned Dy. Collector in the said order referred to herein above had held that a portion of the said property surveyed under No. 43/1 would be part of the property of the appellants. Besides that, it is well settled that in case the Court finds that the identity of the property cannot be ascertained on the basis of the documentary evidence on record and taking note of the fact that some of the boundaries in the land registration document have fixed boundary point, the learned Judge could have resorted to exercise powers under Order 26 Rule 9 of C.P.C., and appoint a commissioner to identify the property at loco as claimed by the appellants on the basis of the documents of title produced on record. This view has been taken by this Court in the judgment reported in 2009(4) Mh.L.J. 371 : [2009(4) ALL MR 761] in the case of Girish Vasantrao Bhoyar and Anr. Vs Nimbaji Warluji Bambal, wherein it has been observed at para 5 thus :- "5. In the case of (Haryana Waqf Board Vs. Shanti Sarup & ors.), reported in 2008 DGLS (soft) 2122 : 2008(8) S.C.C. 671 , the Hon’ble Apex Court has held that whenever there is a dispute of demarcation of the disputed land, it was appropriate for the Court to direct an investigation by appointing a local Commissioner under Order 26, Rule 9 of Civil Procedure Code. This Court in the case of (Kashinath Ramkrishna Chopade Vs. Purushottam Tulshiram Tekade & ors.), reported at 2005(4) Mh.L.J. 471 = 2005 (6) Bom. C.R. 267, has held that cases of boundary dispute and dispute about the identity of the lands are instances where a Court should order a local investigation under Order 26, Rule 9 of Civil Procedure Code. In order to determine whether there is an encroachment, it is always desirable to get the measurements of the land encroached upon. C.R. 267, has held that cases of boundary dispute and dispute about the identity of the lands are instances where a Court should order a local investigation under Order 26, Rule 9 of Civil Procedure Code. In order to determine whether there is an encroachment, it is always desirable to get the measurements of the land encroached upon. Considering the said judgment of the Hon'ble Apex Court as well as the judgment of this Court, I find that there is no infirmity of any kind committed by the learned trial Judge while passing the impugned order and appointing a Commissioner for the purpose of carrying out the local investigation as ordered in the impugned order." This Court in another judgment reported in 2004(2) Mh. L.J. 594 in the case of Ushabai w/o Sharadchandra Bannore Vs Wasudeo s/o Baliramji Mehare and others has observed at paras 7 and 8 thus: "7. I may usefully refer the decision of our High Court in the case of Krishnarao vs. Mahadeorao 1953 NLJ Note 230 at page 72 wherein it has been observed that under Order XXVI, Rule 9 of the Code of Civil Procedure, the Court has the discretion to order local investigation or not. The object of the local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its pecuniary nature can only be had on the spot. The cases of boundary disputes and disputes about the identity of lands are instances, when a Court should order a local investigation under Order XXVI, Rule 9 of the Code of Civil Procedure - 12 I.C. 347 Foll. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the area encroached upon. Oral evidence cannot conclusively prove such an issue. 8. However, reference may also be had to the decision of the Supreme Court in the case of Ram Kishore Sen and ors. vs. Union of India, AIR 1966 SC 644 wherein it has been held in para 12 that, "it is true that section 83 of the Evidence Act provides that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Govt. or any State Govt. vs. Union of India, AIR 1966 SC 644 wherein it has been held in para 12 that, "it is true that section 83 of the Evidence Act provides that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Govt. or any State Govt. were so made and are accurate, but the maps or plans made for the purpose of any cause must be proved to be accurate. The presumption of accuracy can thus be drawn only in favour of the maps which satisfy the requirements prescribed by the first part of section 83. Exh.A-1 obviously does not fall under the category of the said map and so there can be no question of drawing any presumption in favour of the accuracy of the said map. In fact, as we have already indicated, the learned Judge has given very good reasons for showing that the map does not appear to be accurate. Therefore, even if the map is held to be relevant its accuracy is not at all established; that is the conclusion of the learned Judge and Mr. Mukherjee has given us no satisfactory reasons for differing from the said conclusion." Considering the ratio laid down by this Court, when the question of identification of the property in dispute and when there is an admitted plan on record, it would always be appropriate to seek an expert opinion by appointing a Commissioner under Order 26 Rule 9 of the Civil Procedure Code to make a local investigation which would assist the Court to come to a conclusion on the basis of documents of title produced by the parties. The effect of provisions of Article 953 of Portuguese Civil Code would also have to be considered while appreciating the evidence on record. The contention of the appellants that the case of the respondent was that only the portion of the property surveyed under no. 43/1 forms part of the Forest land which would also have to be considered while taking a decision on merits in the suit. 9. In the present case, the learned Judge ought to have also considered as to who is in possession of the disputed suit property. 43/1 forms part of the Forest land which would also have to be considered while taking a decision on merits in the suit. 9. In the present case, the learned Judge ought to have also considered as to who is in possession of the disputed suit property. It is well settled that the title of the property can be established not only on the basis of the documentary evidence on record but also be corroborated by establishing the possession therein. Under Section 110 of Evidence Act, a person who is in possession of the property is assumed to be the owner of the property. This position is to be read with the provisions of Section 105 of the Land Revenue Code. In the present case, I find no discussion on that aspect by the learned Judge while coming to the conclusion that the appellants have failed to establish that the property surveyed under No.43/1 was belonged to them. It is also not in dispute that the property surveyed under survey No.43/1 was already promulgated. In view of such promulgation, the presumption had to be drawn in terms of Section 105 of the Land Revenue Code. No doubt, such presumption is rebuttable and has to be appreciated only after appreciating the evidence on record. 10. On perusal of the impugned judgment, the learned Judge has non suited the appellants basically on the ground that the boundaries shown in the land registration certificate were not correspond to the boundaries at loco. In such circumstances, the learned Judge was not justified to draw such inferences. It is to be noted that proprietary rights to properties cannot be defeated on such basis. It was expected of the learned Judge to examine the documents and find out the location on the basis thereof and after examining such position, draw inferences and conclusions as available in law. As the learned Judge has not scrutinized the material as expected while deciding the suit based on title, I find that it is appropriate in the interest of justice to quash and set aside the impugned judgment and direct the learned Judge to decide the suit afresh in the light of the observations made herein above. 11. In view of the above, I pass the following: ORDER (i) The appeal is partly allowed. (ii) The impugned judgment and decree dated 19.11.2007 is quashed and set aside. 11. In view of the above, I pass the following: ORDER (i) The appeal is partly allowed. (ii) The impugned judgment and decree dated 19.11.2007 is quashed and set aside. (iii) Civil Suit No. 4/2007 is restored to the file of the leaned District Judge. (iv) The learned Judge is directed to decide the said suit afresh in the light of the observations made herein above in accordance with law. (v) All the contentions on merits of both the parties are left open. (vi) The parties are directed to appear before the learned Judge on 09.12.2013 at 10.00 a.m. (vii) The appeal stands disposed of accordingly. Appeal partly allowed.