LAWS(BOM)-2013-4-73

AJIT R. ALVE Vs. LAXMI VITHAL GAONKAR

Decided On April 25, 2013
Ajit R. Alve Appellant
V/S
Laxmi Vithal Gaonkar Respondents

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment, Order and Decree dated 9/3/2005 passed by the learned Adhoc Additional District Judge, FTC-II, in Civil Suit No. 128 of 2004 (New)/Regular Civil Suit No. 45 of 1996/A (Old), by which the said suit has been dismissed.

(2.) THE appellant was the plaintiff in that suit, whereas the respondents no. 1 to 8 and 12 were the defendants no. 1 to 8 and 12 and the respondents no. 9, 10 and 11 were defendants no. 9, 10 and 11. The parties shall, hereinafter, be referred to in the same manner as they appear in the cause title of the said suit.

(3.) CASE of the plaintiff, in short, is as follows: He is Cabeca-de-Casal/Head of the Family appointed by the Court of Civil Judge, Senior Division, Margao in Inventory Proceedings No. 18910/75/A, which are pending and which were initiated upon the death of Shri Ramanata Govind Alve and his wife Smt. Janqui Ramanata Alve, who are parents of the plaintiff. In the said Inventory Proceedings, at Item No. 2 of the list of Assets, a property known as "Datrichem Upor" situated in village Maulinguem, in Sanguem Taluka admeasuring 83627 square metres having the shape and extension as per the Plan No. 15371 which is a Government Aforamento granted to late Shri Ramanata Govind Alve under Title No. 1597, has been listed. The said Aforamento land comprises of various plantations and is surrounded by a barbed wire fence on all sides except on the eastern side to the extent it touches survey no. 17 of Maulinguem village belonging to Government and the northern part of survey no. 23 of Maulinguem village. The plaintiff and his family members have been in possession and enjoyment of the said entire area of 83627 square metres. During the recent survey conducted for the purpose of Record of Rights, the said Aforamento of late Ramanata Govind Alve, to a major extent, came to be surveyed under no. 21/1 of Maulinguem village having an area of 77250 square metres, in the name of said Ramanata, while a substantial area from the remaining area of said Aforamento, came to be surveyed under no. 21/2 of Maulinguem village and has been recorded in the name of late Vithal Vasu Gaonkar. The said late Vithal Vasu Gaonkar has also been granted, by the Government, an Aforamento having an area of 67468 square metres vide Aforamento no. 1959 and having the shape and extension as shown in the Plan no. 17639. Said Vithal Vasu Gaonkar was the husband of defendant no. 1 and the father/father-in-law of defendants no. 2 to 8. The said Aforamento of late Vithal Vasu Gaonkar came to be surveyed under no. 22/0 of village Maulinguem with an area of 63525 square metres and partly in survey no. 21/2 having an area of 7575 square metres. Thus, the name of Shri Vithal Vasu Gaonkar is wrongly recorded as lessee in survey no. 21/2. In the plan no. 15371 pertaining to the plaintiff''s Aforamento, the boundary stone marks are numbered and the area of late Shri Ramanata Govind Alve left out and included in survey no. 21/2 is from the stone marks bearing numbers 7-8-9-10- 11-7. The plaintiff had filed an application against the heirs of late Vithal Vasu Gaonkar before the Deputy Collector under section 113 of the Land Revenue Code, praying for demarcation of the Aforamento under title no. 1597 and also the Aforamento based on the Plan No.15731 and to separate the area of Ramanata Govind Alve shown in survey no. 21/2 and give a new survey holding to the said separated area. The Dy. Collector, however, by order dated 28/9/1995, directed the Inspector of Survey and Land Records, Margao, to demarcate only the property under survey no. 21/1 and rejected the prayer in respect of survey no. 21/2 on the ground that the name of Ramanata Govind Alve does not figure in the survey records of survey no. 21/2. Hence, the suit.