SHRI NAGESH BABAN GAOKAR, SINCE DECEASED, BY HIS LEGAL REPRESENTATIVES: (SMT. HAYA NAGESH GAOKAR AND ORS.) Vs. SHRI DAMODAR KRISHNA MIRACHI AND SMT. LAXMI ALIAS RUKMINI KIRSHNA MIRACHI,BOTH RESIDING AT PANCHWADI, PONDA, GOA

JUDGEMENT

(1.) HEARD Shri M.S. Joshi, the learned Counsel appearing for the appellants and Shri V. Braganza, the learned Counsel appearing for the respondents. The above appeal challenges the judgment and award dated 25/07/2003 passed in Land Acquisition Case No. 115/1998 whereby a reference under Section of the Land Acquisition Act (herein after referred to as 'the said Act') came to be disposed of directing that the compensation awarded be paid to the respondents no. 1 & 2.

(2.) AN area of 300 square metres from the property surveyed under no. 72/5 situated in the village Panchawadi of Ponda Taluka came to be acquired under the said Act pursuant to a notification published under Section of the said Act in the Official Gazette dated 12/12/1991. In view of the rival claim put up for the compensation awarded by the Land Acquisition Officer whilst passing an award under Section of the said Act the dispute was referred to the learned District Judge under Section of the said Act.

(3.) SHRI M.S. Joshi, the learned Counsel appearing for the appellants has assailed the impugned judgment on the ground that the respondents no. 1 & 2 have failed to establish that the land acquired was part and parcel of the property claimed by the said respondents known as "Lacumugoracodil" described in the Land Registration Office under No. 20200 and inscribed in Taluka Revenue Office under matriz No. 781 and 782. The learned Counsel further pointed out that though the property surveyed under no. 109/1 admeasures an area of more than 2 lacs square metres, the said respondents are claiming only an area of 13,300 square metres. The learned Counsel further pointed out that the said respondents have failed to adduce any evidence to establish the portion of the said property claimed by them surveyed under no. 109/1. The learned Counsel further pointed out that the claim of the appellants is solely on the basis of the survey records which according to him has been duly promulgated in the name of some of the appellants and also the respondents no. 1 & 2 herein. The learned Counsel further pointed out that in view of the entries in the survey records, the presumption under Section 105 of the Land Revenue Code is to be drawn in favour of the persons in whose name the survey records stand and as such the learned Judge has erroneously passed the impugned judgment directing that the compensation be paid only to the respondents no. 1 & 2 herein. Shri Joshi, the learned Counsel has further taken me through the evidence of RW1 and RW2 and pointed out that there are specific averments made in the deposition of the said witnesses to establish that the property which is the subject matter of the acquisition forms part and parcel of the property belonging to the appellants. The learned Counsel has thereafter taken me through the evidence of AW1 and AW2 and pointed out that there is no evidence adduced by the said respondents to substantiate their claim that the property claimed by the said respondents forms the part of the property which is subject matter of the acquisition. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has erroneously come to the conclusion that the compensation has to be paid to the respondents no. 1 & 2 herein. The learned Counsel further points out that there is a civil suit pending final adjudication in respect of the whole property wherein some of the parties in the said proceedings are also parties. The learned Counsel further points out that the subject matter of the said suit is entire property which would otherwise also include acquired portion of the land. The learned Counsel, as such, submits that the impugned judgment deserves to be quashed and set aside.