STATE OF GOA Vs. YESHODABAI SHIVNATH XETE

JUDGEMENT

(1.) THE case of the Appellants is that, the Appellant -State of Goa, had filed the Civil Suit no. 221 of 2004, contending that the old cadastral survey was promulgated in 1943, which showed the name of Government as owner in respect of the property under survey no. 446. The Plaintiff contended that in the subsequent Survey promulgated in 1975, the name of Government of Goa appeared in the occupant's column in respect of the property surveyed under no. 79/1. The name of Shri Gopinath Sadashiv Xete, appeared as owner in the old cadastral survey record in respect of the property surveyed under no. 427 (suit property) but he failed to produce any documents of title. It is stated that in the subsequent survey in 1974, the name of Government of Goa is shown in the survey records under survey no. 108/2. According to the Plaintiff, the suit properties are in it's possession and the defendant has no concern with the suit properties. In 1996, the defendant had filed application uder Section 14(3) of the Goa, Daman and Diu Land Revenue Code, 1968, for deleting the name of Government of Goa from the records pertaining to survey no. 79/1 and survey no. 108/2 and for entering the name of Shri Dhaku Gopinath Xete Hinde in respect of the above mentioned properties. The Plaintiff -State had filed its reply and had also raised counter claim in it. The Deputy Collector by the Order dated 28.05.1998 had passed an Order in favour of the defendant.. In this background, the Plaintiff filed the suit challenging the order passed by the Deputy Collector, for declaration that the defendant has no right over the suit properties and for cancellation of the entries in the other rights column of the survey records of the suit properties.

(2.) THE Respondent -original defendant, filed the written statement and opposed the claim of the Appellant -plaintiff. The case of the defendant is that the suit properties bearing cadastral survey nos. 446 and 427 were owned by his ancestors and the name of his father Dhaku Gopinath Xete Hinde is rightly show in the survey records of property bearing cadastral survey no. 427. Relying on the various entries in the records, the defendants opposed the claim of the Plaintiff. It is the specific case of the defendant that by the document dated 07.03.1827, Intendencia Geral of New Conquests, allotted the suit property to Dhaku (Daquia) Xete Hinde, Venkatesh Bhat, Balkrishna Bhat and Vaman Bhat. It is stated that by the Provincial Decree no. 144 dated 15.12.1880, the Village of Curchirem was declared as a private property. It is the case of the defendant that Dhaku purchased the shares of Venkatesh Bhat, Balkrishna Bhat and Vaman Bhat in the suit property by paying appropriate price and became the absolute and exclusive owner of the entire suit properties. According to the defendant, the Transfer Deed was presented for inscription by his adopted son Sadashiv Hinde in the year 1894 under No. 838 at page 143 Book F -2 and the suit properties were described under nos. 6246 at page 261 of Book B -16 on 10.04.1894. According to the defendant, the suit properties are situated at Village Curchirem. The defendant has stated that after the death of Shri Dhaku, his son Sadashiv became the owner of the said properties and gifted the property to his sons Mr. Gopinath Sadashiv Xete Hinde and Daccu alias Vishnu Sadashiv Xete Hinde by two Partition Deeds dated 17.06.1905 and 20.07.1905. The properties were partitioned amongst themselves because of which the suit properties came to be allotted exclusively to Gopinath Hinde. The said transfer is inscribed in favour of Gopinath Hinde on 24.07.1905 at page 135 Book G -6 under no. 3914. According to the defendant, Gopinath Hinde did not have male issue and, therefore, he adopted the grandson of his brother by executing a notarized Deed of Adoption dated 30.10.1957. The adopted son Dhaku was aged four years at the time of adoption and the family members lived jointly. Gopinath Hinde died on 20.12.1965 and the ownership of the suit properties devolved on Shri Dhaku Hinde (adopted son). It is stated that around 1970, all the Senior Members of the joint family expired and Dhaku at that time was a student and, therefore, the defendant started managing the suit properties on behalf of Dhaku and the family members. The defendant had appeared before Survey Authorities at the time of promulgation of survey under Land Revenue Record in respect of the suit properties. The defendant has given the details of the trees in the property surveyed under no. 79/1. The defendant prayed for dismissal of the suit.

(3.) THE learned Trial Judge proceeded with the matter, recorded the evidence and after considering the material on the record, by the impugned Judgment concluded that Plaintiff has failed to prove his ownership and possession in respect of the suit property surveyed under no. 79/1 and 108/2 of Village Curchirem, Bicholim. The suit filed by the Plaintiff came to be dismissed. The Plaintiff -State of Goa, being aggrieved by the Judgment and Decree passed by the Trial Court, has filed this Appeal. Heard Shri S. Vahidulla, learned Government Advocate for the Appellant and Shri Sudin Usgaonkar, learned Advocate for the Respondents. With the assistance of the learned Advocates, I have examined the record. After considering the submissions made by the learned Advocates of the respective parties and examining the record, the following points arise for determination :