STATE OF GOA AND ORS. Vs. SAUNSTHANA GOKARNA PARTAGALE
HIGH COURT OF BOMBAY
State Of Goa And Ors.
Saunsthana Gokarna Partagale
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F.M. Reis, J. -
(1.) Heard Mr. M. Salkar, the learned Government Advocate appearing for the appellants and Mr. Sudesh Usgaonkar, the learned Counsel appearing for the respondents.
(2.) The above appeal challenges the judgment and decree dated 27/04/2007, whereby the suit filed by the respondents came to be decreed.
(3.) Briefly, the facts of the case are that the respondents claim that they owned a property known as "Inamachi Galli" situated at Maulinguem of Cotigao Village of Canacona Taluka which was acquired by the respondents by Deed dated 7/11/1875 executed before the Notary Public which document is marked Exhibit 25. It is further their contention that as per the recital of the said document the property originally was a grant from the Government on payment of "foro" which was redeemed. The boundaries mentioned in the said Sale Deed are towards the East, West and South by the slope of the hillock and towards the North by the paddy field of the Government. It is further their case that the area of the said property admeasures 115.12 hectares and consists of a paddy field and comprises also of the slopes of the hills on three sides. The said property according to the respondents is surveyed in the record of rights under Survey No. 38 and a major part of Survey No. 37. It is further their case that pursuant to a decision passed by the Avalkarkun the area of the property was corrected and shown by the separate survey number bearing no.37/2 which was carved out from the original entire Survey No. 37. Subsequently, proceedings under Sec. 14 of the Land Revenue Code were initiated and there was a claim by the appellants in which the area attributed to the property of the respondents was about 4 hectares and the remaining was held to be the property of the Government by an order dated 14/08/1984. An appeal was preferred from the said order which was dismissed by an order dated 22/02/1990. Subsequently, a notice under Sec. 80 of the Civil Procedure Code was served on the appellants which led to the filing of the said suit. It is further the contention of the respondents that the property belonging to the respondents corresponds to the entire Survey No. 38 and occupies part of the property under Survey No. 37 and part identified as Survey No. 37/1. It is further their case that as far as the property under Survey No. 38 is concerned there was no dispute raised by the appellants with that regard, but however, what was under dispute was the property surveyed under No. 37/1. It is further the contention of the respondents that the appellants in their written statement contend that a part of the property under Survey No. 37/1 belongs to the respondents and the other part to the Government. The respondents have also produced the matriz record in respect of the said property under no.1898 which shows boundaries on East, West and North by Inamagalivoril hill of the Government and towards the South by the boundary of the village of Loliem. It is further their case that in the year 1962, the appellants prepared a plan bearing no.18228 of the property known as "Vorondagalle" situated at Loliem originally belonging to Purshotoma Bendo and subsequently transferred to Modusudan Timblo which was admeasuring 45856 square metres and the northern boundary of the said property is the property of the respondents. It is also their case that on the basis of contemporaneous material produced on record, it clearly discloses that the portion of the property surveyed under No. 37/1 forms part and parcel of the property of the respondents. It is further their case that it was the view of the Inquiry Officer in the proceedings under Sec. 14 of the Land Revenue Code that the area "vertentes" given in the boundary of 1875 means 'slope' and as slope is the boundary, same stands outside the property of the respondents. It is further their case that "vertentes" would mean the top of the hill. On the basis of the material on record the respondents filed the suit on the ground that the appellants have put only "vondes" within the property of the respondents and that is the reason why the respondents filed the suit to protect their property and inter alia sought for a declaration to the effect that the respondents are the owners of the said property having an area of 115 hectares, 12 being the paddy field comprised in Survey No. 38 and slopes of the hill to the East, West and South of Survey No. 38 comprised in Survey No. 37 (part). A further relief sought is to restrain the appellants from interfering in the possession of the respondents and in the alternative to restore the possession of such portion to the respondents.;
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