SHANTABAI L. PARKAR, R/O. DHATWADA, TISK, USGAO, PONDA, GOA Vs. SMT. LILA PANDURANG SHIRODKAR, R/O. NEAR M.R.F. LTD., DHATWADA, USGAO TISK, PONDA, GOA V. , (SINCE DECEASED THROUGH HER LRS.) AND OTHERS

JUDGEMENT

(1.) Heard.

(2.) Questioning the legality of the judgment dated 28/01/2010 by virtue of which the learned Reference Court held the legal heirs of the party no.1 entitled to claim compensation in respect to the suit house and allowed the claim of the original party no.2, the original respondent are in appeal before this Court.

(3.) Shri S. M. Usgaonkar, learned Senior Advocate came to be heard on behalf of the appellant who submitted that she was the owner of the land in question who was secured by the decree of the Civil Court in the proceedings filed against the Communidade in respect of the Survey holding admeasuring 2700sq.mts. The respondents had no documents except the Panchayat receipts and the letter from Communidade despite which the learned Reference Court had awarded the entire compensation in their favour despite the fact that the respondents had not succeeded in the plea of mundkarship raised by them including that of adverse possession. The suit filed by the appellant for the eviction of the respondents was dismissed and the First Appeal too was dismissed as the pleadings were not amended. The Second Appeal filed by them was however withdrawn as the house in question was demolished due to the acquisition. The name of the appellant was recorded as an occupant in respect of the suit property and the house was shown entered in the name of her father-in-law unlike the name of the respondent no.1 not being recorded in the Survey Records. The Reference Court despite this backdrop and that the Survey Records were promulgated in the name of the appellant pursuant to the mutation held against the appellant. There were several erroneous findings given by the Reference Court which was unduly influenced by the possession of the respondents when the appellant had admitted the possession of the respondents and filed a suit for eviction as early as 1983. The learned Reference Court had recorded erroneous findings that the documents showed the ownership of the respondents to the suit house and allotted the entire compensation to the respondents. The learned Reference Court was also in error to invoke the plea of res judicata against the appellant and therefore on all these grounds, the appeal had to be allowed and the compensation apportioned in favour of the appellant alone.