RAJENDRA REBELLO Vs. HOUSING BOARD OF GOA

JUDGEMENT

(1.) Heard Mr. S. D. Lotlikar, learned Senior Counsel appearing for the appellant and Mr. H. D. Naik, learned counsel appearing for the respondent.

(2.) The above appeal came to be admitted by an order dated 06.08.2010 on the following substantial questions of law :

(3.) Mr. Lotlikar, learned Senior Counsel appearing for the appellant in support of the above appeal has pointed out that the dispute in the present case is with regard to the property belonging to the appellant surveyed under No.49/3. The learned Senior Counsel further points out that the respondent have constructed a road through the property of the appellant surveyed under No.49/3 in Sancoale Village without initiating any acquisition proceedings. The learned Senior Counsel further points out that the appellant has filed a suit on the ground that the respondent had encroached into the property of the appellant by constructing a road leading to the national highway without due process of law. The learned Senior Counsel further submits that in the written statement filed by the respondent, it was contended by the respondent that an area of 600 square metres besides an area of 250 square metres was acquired from the property surveyed under No.49/3. The learned Senior Counsel further points out that the respondent has not produced any acquisition plan to support their contention that the actual road has been constructed in conformity with such acquisition plan. The learned Senior Counsel further submits that the fact finding Courts have erroneously put the burden on the appellant to establish the location of the land acquired with the subject road. The learned Senior Counsel further points out that the appellant has examined an expert Mr. Vikas Dessai who has categorically stated that the road which has been constructed is an alignment and according to the learned Senior Counsel such alignment does not match with the plan produced by the respondent which is at Exhibit P-48. The learned Senior Counsel has thereafter taken me through the plan relied upon by the respondent to point out that it is the contention of the respondent that an area of 250 square metres has been acquired from the property surveyed under No.49/3 as shown in the red colour in the said plan. The learned Senior Counsel further submits that the area of 600 square metres as shown in the green colour in such plan is shown to be from the property surveyed under No.49/3. The learned Senior Counsel further submits that this alignment as shown in the plan does not match with the alignment shown by the expert and as such the burden was on the respondent to produce the acquisition plan to establish the location as well as the area which was acquired from the property of the appellant. The learned Senior Counsel thereafter has taken me through the judgment of the Lower Appellate Court to point out that the learned Judge has erroneously non suited the appellant on the ground that the appellant has in fact not established the encroachment by producing the acquisition plan. The learned Senior Counsel further points out that these findings of the learned Judge are totally erroneous as it was incumbent upon the respondent to establish their case that the road as well as the alignment shown is in accordance with the acquisition plan. The learned Senior Counsel thereafter has taken me through the pleadings as well as the evidence of the said expert Mr. Vikas Dessai to point out that there was cogent evidence on record to hold that the alignment of the existing road was not in accordance with the alleged acquisition by the respondent. The learned Senior Counsel as such submits that the substantial questions of law be answered in favour of the appellant.