MAHADEV SITARAM SINAI KAKODKAR Vs. CONSERVATOR OF FORESTS

JUDGEMENT

(1.) Heard Shri R. G. Ramani, learned Counsel appearing for the Appellants and Shri P. Faldessai, learned Addl. Government Advocate appearing for the Respondents.

(2.) The above Appeal came to be admitted by an Order dated 20.11.2006 on the following substantial question of law :

(3.) Shri R. G. Ramani, learned Counsel appearing for the Appellants, has pointed out that the Appellants are the owners in possession of a property known as "Ponsoibandulam" or "Zazabandavangon" situated at Colomb which is described in the Land Registration Office under no. 15260 and inscribed with Taluka Revenue Office under no.850 and 851 which was purchased pursuant to a Sale Deed dated 07.02.1972 from the original owners Shri Sagun Naik Khurado and his wife. Learned Counsel further pointed out that it is the case of the Appellants that the said property purchased by the Appellants is situated in a portion of the property surveyed under nos. 97 and 98 of the said Village. Learned Counsel further pointed out that the Appellants had identified the said portion of the property purchased by them in the plan produced on record at exhibit Pw. 17. Learned Counsel further pointed out that both the Courts below whilst examining the ownership and title claimed by the Appellants have come to the conclusion that the Appellants are the owners of the suit property. Learned Counsel has taken me through the Judgments passed by the Courts below to point out that the Courts below have erroneously come to the conclusion that the Appellants have not identified the said property viz a viz the claim of the Appellants that such property is located in the portion of the property surveyed under nos. 97 and 98. Learned Counsel further submits that as the property was wrongly surveyed in the name of the Government, the Appellants filed proceedings under Section 14 of the Land Revenue Code for correction of the Survey Records which were initially allowed by the Inspector of Survey. Learned Counsel further pointed out that the Appellate Authorities under the Land Revenue Code as well as the Tribunal have non-suited the Appellants with regard to such claim of the Appellants which forced the Appellants to file the suit challenging the Orders passed by the Revenue Authorities. Learned Counsel further pointed out that though the Appellants have examined a Surveyor, on untenable grounds essentially that the boundaries of the property have not been identified by the Surveyor, the suit was dismissed. Learned Counsel further pointed out that the Appellants have also filed an application under Order 41 Rule 27 of the Civil Procedure Code to produce additional documents which, according to him, clearly establishes that the claim of the Respondents that the property surveyed under nos. 97 and 98 forms part of the property known as "Cudeladongor" is not correct. Learned Counsel has further taken me through the Notification of the year 2002 in respect of the claim of the Respondents with regard to the forest known as "Cudeladongor", to point out that the said Notification itself suggests that such forest does not include the said property surveyed under nos. 97 and 98. Learned Counsel further pointed out that both the Courts below have also come to the conclusion that the Respondents have failed to establish that the property surveyed under nos. 97 and 98 forms part of the forest "Cudeladongor". Learned Counsel as such submits that in such circumstances it is well settled that when there is a dispute with regard to the identity or demarcation of the property, the Court has to always appoint a Commissioner to submit a report based on the respective claims of the parties and thereafter proceed to decide the dispute in controversy. Learned Counsel further pointed out that the Courts below have also relied upon the area in the Matriz Record which is untenable as it is well settled that boundaries will prevail over the area in the Matriz Records. Learned Counsel further pointed out that in any event, the area shown in the Matriz Records are only for the purpose of showing the areas which are amenable for revenue. Learned Counsel further pointed out that it was incumbent upon the Courts below to consider the boundaries of the property as reflected in the title documents of the Appellants and examined such boundaries at loco vis a vis the areas as shown in the Survey Records in respect of the properties surveyed under no. 97 and 98. Learned Counsel further pointed out that having failed to carry out such exercise, the findings of the learned Judge are perverse and, as such, deserves to be quashed and set aside. Learned Counsel pointed out that the substantial question of law framed by this Court has to be answered in favour of the Appellants as once the Courts have come to the conclusion that the Appellants are the owners of the suit property, the question of non-suiting the Appellants on the erroneous ground that the identity of the property has not been established, is patently erroneous.