PRADIP VASSANT FAL DESAI Vs. RAHIMABI SHAIKH

JUDGEMENT

(1.) THE above appeal challenges the judgment and award dated 17/09/2004 passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No.246/1994. Pursuant to a notification under Section 6 of the Land Acquisition Act, 1894, herein after referred to as 'the said Act', published in the Official Gazette on 7/11/1991, Government intended to acquire land for the construction of a new broad gauge line for Konkan Railway in Village Bendordem and Tiloi of Quepem Taluka. Amongst the area which was acquired an area of 775 square metres out of the property surveyed under no.9/1 (part) and an area of 13,625 square metres out of the property surveyed under no.9/44 (part) was sought to be acquired. In view of the dispute between the parties, the Land Acquisition Officer referred the matter for adjudication before the learned District Judge under Section 30 of the said Act. By judgment and award dated 17/09/2004, the learned Additional District Judge directed that the compensation is to be paid to the party no.6, who is the respondent no.5 herein. Being aggrieved by the said judgment, the appellant, who is the party no.1 in the reference proceedings has preferred the present appeal.

(2.) THE learned Counsel appearing for the appellant has assailed the impugned judgment and submitted that the land which is surveyed under no.9/4 forms part of the property belonging to the appellant which was inscribed in the matriz records under no.4. The learned Counsel further submitted that in the survey records the name of the father of the appellant was disclosed and, as such, the presumption under Section 105 of the Land Revenue Code was in favour of the appellant, which has not been rebutted by the respondent no.5. The learned Counsel further pointed out that the Reference Court has misconstrued the deed of gift dated 7/02/1970, which was in favour of the appellant herein executed by his father. The learned Counsel has taken me through the evidence on record and pointed out that the respondent no.5 has failed to establish that the property which is described in the Land Registration Office under no.5624 corresponds to the property which has been acquired in the present proceedings. The learned Counsel has further submitted that the boundaries as shown in respect of the property in matriz record under no.4 correspond to the property which has been acquired in the present proceedings. The learned Counsel further pointed out that the findings arrived at in Land Acquisition Case No.245/1994 in respect of the property surveyed under no.9/6 are not at all relevant for the purpose of deciding the dispute in the present proceedings. The learned Counsel has strongly relied upon the survey records and submitted that as the respondent no.5 has failed to take any steps to get the survey records rectified, itself suggests that the respondent no.5 has no right at all to any portion of the acquired land. The learned Counsel further took me through the evidence on record as well as the impugned judgment and pointed out that the Reference Court has totally mis appreciated the evidence on record and has come to an erroneous conclusion that the property which has been acquired corresponds to the property as claimed by the respondents and is registered in the Land Registration Office under the said number. The learned Counsel further pointed out that the acquired portion of the property was in possession of the appellant and, as such, the compensation which has been awarded is to be paid to the appellant herein. The learned Counsel further submitted that the northern boundary of the property as claimed to be belonging to the grandfather of the respondent no.5 has not been established by any cogent evidence on record and, as such, the appreciation of the evidence by the learned Judge is vitiated and, consequently, the impugned judgment deserves to be quashed and set aside.

(3.) HAVING heard the learned Counsel and on perusal of the records, the following point for determination arises in the present appeal: