Sunday, 26 April 2015

Whether court can draw adverse inference if party fails to enter in witness box?


DW1 admitted that she had no document showing her
title to the suit plot and that the defendant had not obtained any
licence for construction of structure in the suit plot. It is not
known as to why the defendant, who was only 49 years old in the

year 2001 when the evidence was recorded, did not enter the
witness box. Adverse inference as drawn by the Trial Court and
the First Appellate Court appears to be absolutely correct. In the
case of “Vidhyadhar” (supra), the Apex Court has held that
where a party to the suit does not appear into the witness box and
state his own case on oath and does not offer himself to be cross-
examined by the other side, a presumption would arise that the
case set up by him is not correct. 


IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 100 of 2004

Shri Damaciano Fernandes, Vs  St. Anthony's Chapel,

CORAM :- U. V. BAKRE, J.

Pronounced on : 13th June, 2014.
Citation;2015(2) ALLMR576

This Second Appeal is directed against the judgment,
order and decree dated 07/08/2004, passed by the learned
Additional District Judge, Margao (First Appellate Court) in
Regular Civil Appeal No. 84 of 2002.
3.
By the impugned judgment, the judgment, order and
decree dated 26/03/2002 passed by the learned Civil Judge, Junior
Division, Canacona (Trial Court) in Regular Civil Suit No.
106/1988 (Old Regular Civil Suit No. 142/1986) has been
confirmed.
4.
The appellant was the defendant and the respondent
no. 1 was the plaintiff in the said civil suit.
The plaintiff, who

claimed to be an unincorporated and unregistered Association,
had filed the said suit in representative capacity
against the
defendant for permanent injunction to restrain the defendant
from interfering with or constructing any structure in the suit
property situated at Mastimola, Canacona, Goa bearing Survey
No. 248/37 and also to issue orders to Survey Authorities to
delete the name of the defendant from the Survey Records.
5.
Case of the plaintiff, in short, was as follows :
There is a chapel known as St. Anthony's Chapel at
Mastimola and the plaintiff-association, managed by a managing
committee, elected by the members, have been managing the said
chapel. The plaintiff is the owner in possession of a landed
property bearing Survey No. 248/37 of Mastimola and the chapel
is situated in the said plot since last more than 40 years. The said
entire survey holding no. 248 was divided into 40 plots and out of
these plots, the Government acquired the portion of the same
comprising sub-divisions no. 6 to 40 from the comunidade of
Nagorcem-Palolem and 32 plots thereof were given by the
Government to various individuals who were residents of Delem
after leaving certain plots as open spaces and one of those open
spaces which was opposite the chapel and in continuation to the
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plot wherein the chapel is situated, was allotted to the chapel.
The entire Survey Holding No. 248 was originally the property
belonging to Comunidade of Nagorcem-Palolem. In the year 1938,
the Administrator of Taluka Canacona, namely Advocate Jeronio
Dias granted portion of this landed property comprising
sub-
divisions no. 6 to 40 of said survey no. 248 for the use and benefit
of the residents of Delem on health grounds and the same
received approval of the Governor General. The said land was
then divided into plots, open spaces and accesses and duly
demarcated plan was made and the entire project was notified by
notification in the official Bulletin of 1938. Since then the chapel
is in occupation and possession of the said open plot. Plots no. 1
to 5 of the said Survey Holding No. 248 were still with the
Comunidade of Nagorcem-Palolem. Said open plot in front of the
chapel, allotted to it, bears survey no. 248/34 and is the suit plot
bounded on east, west and North by access road and on South by
plot no. 37 wherein the chapel exists. The said open space/suit
plot was kept for use of activities of the chapel and there was no
proposal for allotment of the said plot to any person. The suit plot
has been used and possessed by the chapel since beginning and
no one has interfered with the same. For the last few years, the
premises of the chapel are under use for Government Primary
School and the said open space/suit plot is being used by the
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children as a playground. The Government is also paying rent to
the chapel for the use of the said premises. The defendant was
the Vice-President of the said chapel and taking advantage of this
position, without knowledge of the committee members, he
changed the survey records by deleting the name of his grand
father having the same name as of the defendant from the plot
allotted to the said grand father and putting name of his uncle by
name Francisco against the same. This was done in order to show
the name of the grand father of the defendant i.e. the name of
Damaciano in the Survey Records against the open space/suit
plot.
By taking advantage of survey entries, the defendant
without any authority and without knowledge of the committee of
the chapel, made attempts to dig some pits in the suit plot in
order to construct some structure for his personal benefit.
No
licence was issued by the Panchayat nor any conversion
Certificate
was
obtained
from
the
concerned
authority.
Somewhere in the year 1969, the President of the said Chapel by
name Francisco Fernandes, who was
along
with
Advocate
Jeronio
uncle of the defendant
Dias,
Ex-Administrator
of
Comunidades of Taluka of Canacona, prepared a plan showing the
names of all the allottees of the plots and also showing the open
spaces kept for the benefit of the members of the chapel, one in
which the chapel is situated and the other in front of it and
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another plot wherein there exists a common well for the use of
the members of the chapel. Out of the remaining 32 plots, in the
beginning, 27 plots were allotted to various persons whose names
are shown in the said plan. The 5 plots, out the said 32 plots,
which were earlier not allotted, were subsequently allotted to 5
persons with the consent of all members and their names are (i)
Shri Benedito Fernandes; (ii) Shri Joao Fernandes; (iii) Shri Lucas
D'Sousa; (iv) Shri Bento D'Sousa; and (v) Shri Antonio Sebastiao
Sousa. In the said plan, the name of the aforesaid persons have
been shown as “Requested for allotment” (“Foi Pedido”).
The
blue print of the said plan was given to each allottee by charging
` 50/-. The name of Damaciano Fernandes has been wrongly
recorded in the record of survey no. 248/34 by the defendant by
playing fraud on the survey authorities. The defendant, on or
about 15/06/1986, attempted to start construction of the house in
the suit plot, by gathering labourers and laterite stones. Hence,
the suit.
6.
The defendant, by way of written statement, alleged
as under :
It is false that the land belonging to Comunidade was
acquired by the Government and divided into plots.
The place
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wherein chapel exists comprises of two plots, which were
amalgamated for the use of chapel. No open plot or plot in front
of the chapel was given for the benefit or use of the said chapel.
The suit plot was originally shown as open plot since there were
no claims for the said plot.
Subsequently, it was given to the
father of defendant. Though in the plan, some plots were shown
as open, it was so because there were no claims for the said plots
and the interpretation disclosed in the plan about the said open
plot by the plaintiff is not correct. Some of the open plots were
subsequently allotted to different persons and one such plot still
exists as open plot. The said property was divided into plots after
obtaining sanction from the Government in the year 1938 and
hence, the contention of the plaintiff that they are in possession
and enjoyment of the suit plot for many years is wrong.
The
School Children play in any open plot and that does not mean that
such open spaces are meant for playground. Since there were no
claims for the plots, which were marked as open plots, the father
of the defendant in the year 1940 approached the Comunidade to
allot the suit plot to him and somewhere in the year 1941, the
same was allotted to the father of the defendant and since then, it
was enjoyed by his father and thereafter, by the defendants. The
father of the defendant suggested that the plot originally allotted
to him should be kept for the mother and three brothers of the
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father of the defendant and the suit plot, which was subsequently
allotted, should be enjoyed by the defendant and as such, the
defendant is in possession and enjoyment of the suit plot
continuously from the year 1961. Originally, the defendant's
father as well as grandfather were allotted two plots namely plot
bearing Survey no. 248/29 and 248/35. The said plot bearing No.
248/35 was allotted to defendant's father and the same is in
occupation of the defendant's mother and three brothers of the
father of the defendant, whereas the other plot bearing Survey
No. 248/29 allotted to defendant's grandfather is in possession of
the defendant's uncle by name Francisco Fernandes. There was a
cashew tree, a teak wood tree and wild trees in the suit plot
which
wild trees and the teak wood tree were cut by the
defendant whereas the cashew tree perished and even coconut
sapplings were planted which also perished. The defendant
started digging foundation on 24/04/1986. Shri Antonio Sebastiao
D'Souza, the President of the said Association approached the
defendant on 25th March, 1986 with a plan saying that the suit
plot is shown as open plot and the defendant should pay to him `
500/- and since the defendant failed to pay the said amount, he
has been falsely implicated in the litigation.
7.
Following issues were framed by the Trial Court :
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“1.
Whether the plaintiff proves that he is the
owner in possession of the open plot surveyed
under No. 248/34 which was allotted to it by
the Administrator of Taluka of Canacona and
after acquiring a portion of the property from
the Communidade of Nagorcem, Palolem and
surveyed under No. 248 (part)?
2.
Whether the plaintiff proves that the defendant
played
fraud
Authorities
on
the
thereby
plaintiff and survey
changing the survey
records by deleting the name of his grand
father Damaciano and inserting the name of his
uncle Francisco and by inserting the name of
his grandfather Damaciano in the open space
surveyed under No. 248/34?
3.
Whether the plaintiff proves that he is entitled
for the reliefs claimed?
4.
Whether
the
defendant
proves
that
the
Communidade of Nagorcem, Palolem allotted
to the defendant's father in the year, 1941, the
suit plot surveyed under No. 248/34 and since
then
the
suit
plot
was
enjoyed
by
the
defendants father and upon his death by the
defendant?”
8.
The plaintiff examined himself as PW1, Mr. Custodio
D'Souza as PW2 and Mrs. Ana Dias as PW3, before the Trial
Court.
The defendant examined his wife namely Mrs. Luiza
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Barreto as DW1, Mr. Madhu Kankonkar as DW2 and Mrs. Maria
Conceicao Fernandes as DW3.
9.
Upon consideration of the entire material on record,
the learned Trial Court held that the plaintiff proved that it is
owner in possession of the open plot bearing Survey No. 248/34
which was allotted to it by the Administrator of Taluka of
Canacona, after acquiring the portion of the property from the
Comunidade of Nagorcem-Palolem surveyed under no. 248 (part).
The Trial Court further held that the plaintiff proved that the
defendant played fraud on it and on Survey Authorities thereby
changing survey records by deleting the name of his grand father
Damaciano from the plot allotted to the grand father and
inserting the name of his uncle Francisco therein and by inserting
the name of his said grand father Damaciano in the survey record
of open space/suit plot surveyed under no. 248/34. The defendant
failed to prove that the Comunidade of Nagorcem-Palolem
allotted to his father in the year 1941 the suit plot bearing Survey
No. 248/34 and that since then, the same was enjoyed by his
father and thereafter by the defendant. The issues no 1 to 3 were
answered in the affirmative and issued no 4 was answered in the
negative. The plaintiff was, therefore, held to be entitled to the
reliefs claimed.
The suit was decreed.
The defendant, his
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servants, agents, relatives, etc. were permanently restrained from
constructing in and/or interfering with the suit plot bearing
Survey No. 248/34 in any manner. The Survey Authorities/Talathi
of village Nagorcem-Palolem was directed to delete the name of
Damaciano Fernandes from the index of Survey Record in Form
No. I and XIV of Survey No. 248/34 of village Nagorcem-Palelem
and to insert the name of the plaintiff in its place.
10.
Aggrieved by the judgment, order and decree dated
26/03/2002 passed by the Trial Court, the defendant filed Regular
Civil Appeal No. 84/2002.
The learned First Appellate Court
formulated the following points for determination :
“1.
Whether the plaintiff have established the
right over the suit plot?
2.
Whether the suit for simpliciter injunction is
tenable?
3.
11.
Whether the suit is barred by limitation?”
Upon consideration of the entire material on record,
the First Appellate Court held that the notification/ordinance
dated 21/06/1938 at Exhibit PW1/A clearly proves that the plot
belonging to the Comunidade of Nagorcem-Palolem was acquired
by the Government for the purpose of public utility i.e. shifting of
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the residents of Ward Delem into the said property and even the
price of the said land was fixed. The First Appellate Court held
that this fact was also admitted by the defendant in paragraph 4
of the written statement. The First Appellate Court further held
that the suit plot bearing Survey No. 248/34 was kept as open
plot for the benefit of all the allottees and specifically to the
chapel which existed in the adjoining plot bearing Sub-division
No. 37. He found that the plan at Exhibit PW1/C shows the suit
plot as open plot. The First Appellate Court observed that Survey
Records are not the documents of title, but they only show
possession of a person in whose name the land is recorded, but
the said presumption is rebuttable and the person who remains in
possession has to show tittle of title over the said property along
with the possessory right. According to the First Appellate Court,
the presumption with regard to the correctness of the Survey
entries in respect of the suit plot has been satisfactorily rebutted
by documentary proof produced by the plaintiff. The plaintiff was
held to have established the right over the said property and that
the plaintiff was entitled for injunction simpliciter as prayed for.
It has been held that the suit is not barred by law of limitation.
The first two points have been answered in the affirmative and
the point no. 3 has been answered in the negative. The appeal
has, thus, been dismissed.
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12.
This
Second Appeal, preferred against the said
judgment and decree dated 07/08/2004 passed in Regular Civil
Appeal No. 84/2002, has been admitted on the following
substantial questions of law :
“(1)
Whether
on
a
true
construction
of
the
Notification dated 21.6.1938 the same is merely an
intention to acquire the land mentioned therein and
is
not
a
document
of
implementation
of
acquisition ?
(2) Whether the suit for permanent injunction was
maintainable on the facts pleaded, without seeking
any declaration of title ?
(3) Whether the findings of the Court especially as
to acquisition of the suit property by Government
and allotment thereof to the Chapel or being kept
as an open plot are based on no evidence and/or
are perverse ?”
13.
Mr. Diniz, learned Counsel appearing on behalf of the
defendant
submitted
that
following
additional
substantial
questions of law arise in this Second Appeal :
“1.
Whether the suit seeking relief of correction
of the survey record was maintainable and/or any
relief could be granted by the Courts below in this
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regard, in view of the bar under section 106 of the
Goa Land Revenue Act?
2.
Whether the suit for permanent injunction
simpliciter could have been decreed without finding
as to actual possession on the date of the suit or on
a finding that the defendant (appellant) had not
shown title to hold possession?”
14.
Mr. Diniz, learned Counsel appearing on behalf of the
defendant, invited my attention to the extract of the Ordinance
which is at Exhibit PW1/A-Colly and pointed out that in this
notification, neither the plot number nor the area of the plot has
been described to identify various plots including the suit plot.
He further submitted that this notification only shows the
intention to acquire the land and there is nothing on record to
prove the completion of acquisition.
He pointed out that the
promulgated Survey Records admittedly show the name of the
defendant, against the suit plot.
He further submitted that the
plan Exhibit PW1/C is a private plan of allotment, which is not
proved. He pointed out that what is produced on record is mere
copy of that plan. He submitted that admittedly the suit plot
belonged to Comunidade and since the plan(Exhibit PW1/C) was
not an allotment plan prepared by the Government, the plaintiff
had to prove the allotment of plots as shown in the same. He
submitted that since title of the plaintiff was in dispute, suit for
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permanent injunction simpliciter would not lie and the plaintiff
had to seek declaration of title. Learned Counsel further urged
that even otherwise, in the suit for permanent injunction
simpliciter,
the
plaintiff
had
necessarily
to
prove
actual
possession which has not been proved. He relied upon the
judgment of the Hon'ble Supreme Court in the case of “Anathula
Sudhakar Vs. P. Buchi Reddy (dead) by Lrs. and others”
reported in [(2008) 4 SCC 594] and contended that the plaintiff
had to prove possession as on the date of the suit and since it is
proved that the defendant's name appears in the promulgated
survey record and he
had already constructed the house, the
plaintiff could not be said to have proved its possession. He
pointed out that the said notification at Exhibit PW1/A-Colly itself
says that the same should be followed in terms of the law. The
learned Counsel urged that there cannot be an admission by party
in respect of acquisition as the acquisition has to be done by a
document. He submitted that in view of Section 106 of the Land
Revenue Code, the Trial Court could not have granted the relief of
directing the Survey Authorities to correct the Survey Records.
He, therefore, urged that the Second Appeal be allowed and the
impugned judgment be quashed and set aside.
15.
On the other hand, Mr. Coutinho, learned Counsel
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appearing on behalf of the plaintiff, submitted that the Trial Court
by judgment dated 26/03/2002 held that the suit plot was allotted
to the plaintiff by the Administrator of Taluka of Canacona after
acquiring a portion of the property from the Comunidade of
Nagorcem-Palolem and surveyed under No. 248(part).
He
pointed out that the defendant had not challenged the decree
passed by the Trial Court on the said question which is now
framed as substantial question of law at serial no. 1. He pointed
out from the Memo of Appeal filed before the District Judge that
no ground that the land was not acquired by the Government was
taken up in the First Appeal and even no arguments were
advanced on that ground. He pointed out that the defendant had
filed written arguments
and the issue whether the land was
acquired by the Government was not a ground of appeal.
He
further submitted that after filing the written statement, the case
that the property was not acquired by the Government was not
put to the witnesses of the plaintiff and on the contrary, DW1 has
admitted acquisition by the Government.
He, therefore, urged
that the substantial question of law at serial no. 1 does not arise.
He further pointed out that the Trial Court had framed the issue
of ownership as well as of possession of the plaintiff by way of
issue no. 1, whereas the ownership of the defendant was also in
issue as per issue no. 4.
He further pointed out that the First
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Appellate Court had framed the point over the entitlement of the
defendant.
According to him, therefore, there was complete
adjudication on the question of ownership and possession.
He,
therefore, submitted that the judgment of the Hon'ble Supreme
Court in the case of “Anathula Sudhakar” (supra), does not
apply to the present case.
According to him, therefore, the
substantial question of law at serial no. 2 also does not arise. The
learned Counsel submitted that the notification of the year 1938,
the extract of which is at Exhibit PW1/A-Colly shows that there
was a clear declaration to acquire the property and the plaintiff
had led evidence on the completion of acquisition proceedings,
whereas no evidence was led by the defendant over the plea that
the plot was given to him by the Comunidade.
He pointed out
that there was no challenge to the evidence led by the plaintiff
and its witnesses to the effect that the property was acquired by
the Government. Learned Counsel submitted that the defendant
was 49 years old in the year 2001 when the evidence was
recorded, but he did not enter the witness box and thus, avoided
the cross-examination, due to which, adverse inference drawn by
the Trial Court and by the First Appellate Court was correct.
pointed out that DW1
Government.
up
by
the
admitted acquisition of the land by the
According to him, DW1
defendant
He
and
destroyed the case set
confirmed
the
case
of
the
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plaintiff. Learned Counsel then submitted that the plan at Exhibit
PW1/C has been exhibited after the order passed by the Court and
PW1 was extensively cross-examined on the said document and
DW1 has also been questioned on the same. He submitted that
challenge to the order permitting admission of the said plan at
Exhibit PW1/C was not a ground of appeal before the First
Appellate Court and hence, the objection cannot be raised in
Second Appeal.
Learned Counsel appearing on behalf of the
plaintiff submitted that the Trial Court found the plaintiff to be in
possession of the suit plot and the First Appellate Court held that
the entry in Survey Record has been rebutted.
He, therefore,
contended that the question of plaintiff not being in possession
would not arise.
He urged that all the points raised in this
Second Appeal have been answered by the Courts below based on
appreciation of the evidence and hence, none of the substantial
questions of law as claimed by the defendant arise in this Second
Appeal.
He, therefore, prayed that the Second Appeal be
dismissed.
16.
Learned Counsel appearing on behalf of the plaintiff
relied upon the following judgments :
(i)
Mr. Guy Vigney Athanasius D'Melo Vs. The
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Government
of
Goa,
Daman
and
Diu,
[MANU/MH/1663/2011: 2012 (5) Bom. C.R. 334]
(ii)
A. E. G. Carapiet Vs. A. Y. Derderian,
[MANU/WB/0074/1961: AIR 1961 Cal 359]
(iii)
Vidhyadhar Vs. Mankikrao and another,
[AIR 1999 SC 1441]
(iv)
R.
V.
E.
Venkatachala
Gounder
Vs.
Arulmigu Viswesaraswami & V. P. Temple and
another, [(2003) 8 SC 752]
(v)
Hemendra Rasiklal Ghia & Ors., Vs. Subodh
Mody & Ors, [2008 (6) Bom. C. R. 519]
17.
I have gone through the material on record.
I have
considered the submissions advanced by the learned Counsel for
the parties and the judgments relied upon by them.
18.
PW1, Mr. Antonio S. Souza produced the copy of the
Government Official Gazette no. 49 dated 21 st June, 1938 along
with the translation of extract of the Notification at No. 3.188, as
Exhibit PW1/A-colly,
which reveals that the ward Delem of
Canacona was very strongly affected by malaria. It further reveals
that the application of the inhabitants of the said ward,
requesting that a plot, selected in accordance with the respective
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authority, situated at the plateau of Delem, belonging to the
Comunidade of Nagorcem-Palolem, mentioned in the respective
plan and map of acquisition, and valued at Rs. 318.08/-, be
acquired for transfer to the said inhabitants, was considered. The
notification further shows that the in-charge of the Government
of the State of India, officiating with powers which were
conferred upon him under Section 31 of the Colonial Act and
under Section 21 of Section 33 of “Carta Organica”, of the
Portuguese Colonial Empire, determined as follows:- “It is
declared that the acquisition of the mentioned plot is of public
utility and pressing, and it should be followed in terms of the
law”. Thus, it is clear from the above that there was a declaration
published in the Government Gazette that the acquisition of the
plot situated at the plateau of Delem belonging to the comunidade
of Nagorcem-Palolem, for Rs. 318.08/- was for public purpose and
was utmost necessary. There is on record the oral evidence of
PW1, Mr. Antonio S. Souza in respect of the said acquisition. He,
inter alia, deposed that the Government paid Rs. 318/- as
compensation for the said acquisition. This fact of payment of
compensation towards acquisition has not been denied by the
defendant. There is not even a suggestion to PW1 and other
witnesses of the plaintiff to the effect that the property was not
acquired by the Government. In paragraph 4 of the written
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statement, the defendant himself has averred that the property
was divided into plots after obtaining sanction from the then
Governor in 1938. DW1, Mrs. Luiza Barreto, wife of the
defendant, has admitted in her cross-examination that prior to the
allotment of the said plot, they were residing at Delem and that
their people, on that occasion, had applied to the Government to
give them some place somewhere as Delem was affected with
malaria. She initially stated that she does not know whether the
Government acquired plot belonging to the comunidade of
Nagorcem-Palolem and that the said plot was divided into small
plots. However, She admitted that in the said plots, the internal
roads were constructed by the Government. DW1 has further
deposed as under:-
“ I admit that the Governor General, in the said
notification, has fixed the price for the said plot of
the communidade of Nagorcem-Palolem acquired
by the Government for distribution, at Rs. 318/-. I
say that in the said Gazette,
it is not mentioned
that the Govt. paid Rs. 318/- but it is mentioned
that it was valued at Rs. 318/-. I do not know who
paid the said amount of Rs. 318/-. I am not in a
position to deny that the said amount of Rs. 318
was paid by the government.”
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Subsequently, DW1 specifically admitted that the Government
acquired a plot from the comunidade of Nagorcem-Palolem to be
given to the residents of Delem. She stated that all those persons
from Delem who applied for plots and were allotted places at
Mastimol by the Government were Catholics and that the said
plots start from 248/6 and end with 148/40. She stated that all the
plots were allotted by the Government, free of cost. The suit plot
is amongst the above survey holdings, being surveyed under no.
248/34.
19.
Though in the judgment and order dated 26/03/2002,
the learned Trial Court specifically held that the Government had
acquired the portion of the property bearing Survey No. 248(part)
from the Comunidade of Nagorcem-Palolem, however, in the
Regular Civil Appeal No. 84/2002, filed by the defendant, the
defendant did not challenge the said finding at all. In the Memo
of Appeal, the defendant did not take up the said ground which is
now being framed as substantial question of law at serial no. 1, to
challenge the judgment and decree of the Trial Court. From the
judgment of the First Appellate Court, it can be understood that
no arguments were advanced on such ground. The defendant had
filed written arguments before the Court and the issue whether
the land was acquired by the Government, was not at all taken up
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in those written arguments.
For the first time in this Second
Appeal, the defendant has contended that on a true construction
of the Notification dated 21/06/1938, merely an intention to
acquire the land is revealed and the said Notification is not a
document of actual acquisition. But the defendant has miserably
failed to prove the same. There was ample evidence on record for
the Courts below to render the finding that the suit property
bearing survey nos. 248/6 to 248/40 (which included the suit plot)
was acquired by the Government. The said finding based on the
Notification dated 21/06/1938 at Exhibit PW1/A-colly and oral
evidence on record, cannot at all be termed as perverse.
20.
The deposition of PW1 reveals that after acquisition of
the property by the Government, the plaintiff-Chapel was allotted
two plots out of which one open plot is opposite to the chapel and
the second is the one containing a well built by the Government.
PW1 deposed that all the plots were demarcated and provided
with access roads and that the Administrator of the Taluka had
drawn the plan. He deposed that all 35 plots are surveyed from
survey nos. 248/6 to 248/40 and that the plot of chapel is
surveyed under no. 248/37 and the open plot in front of the
chapel is surveyed under no. 248/34. He deposed that in the year
1971, there was a meeting and resolution was passed regarding
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the preparation of plan and collection of Rs. 50/- from each
member. PW1 produced the copy of the original resolution along
with translation as Exhibit PW1/B-colly. According to PW1,
pursuant to the said resolution each member paid Rs. 50/- for
each plot and made endorsement on the reverse of the said
resolution. PW1 produced the plan of the plots as Exhibit PW1/C.
DW1 admitted that the plots which are marked with remark “C”,
were given in the year 1938. She admitted that there is no remark
“C” on the plot claimed by them. She admitted that the plot
claimed by them is the one in front of the chapel. PW1 admitted
that on the plot wherein there is well, there is no remark “C”.
She admitted that the said well was kept for the occupants of the
plots. She admitted that on the plot claimed by them, which is in
front of the chapel, the words “open” are written. She admitted
that in case of other plots which are allotted to persons, their
names are mentioned in the said plots. This plan shows the suit
plot as an open plot. It can be certainly said to have been
established from the evidence on record that the said plot in front
of the chapel was purposely kept open for the use of the
the
chapel. The testimony of PW1 has been duly corroborated by PW2
and PW3. The testimonies of PW1, PW2 and PW3 are not shaken
in the cross-examination.
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... 25 ...
21.
Insofar as the said plan is concerned, the same was
exhibited after the order passed by the Trial Court thereby
rejecting the objections of the defendant. It is seen that PW1 was
extensively cross-examined on the said plan and DW1 has also
been questioned on the same.
It is pertinent to note that the
order permitting the exhibition of the said plan at exhibit PW1/C
was not challenged by taking such objection as one of the grounds
in the Memo of Appeal before the First Appellate Court.
Therefore, the issue cannot be raised now in the Second Appeal.
22.
This Court in the case of “Guy Vigney Athanasius
D'Melo” (supra), has referred to the judgment of the Supreme
Court in the case of “R. V. E. Venkatachala Gounder”(supra)
wherein the Apex Court has explained the rule of fair play. The
Supreme Court has held that where the objection does not
dispute the admissibility of the document in evidence, but is
attracted towards the mode of proof alleging the same to be
irregular or insufficient, the objection should be taken when the
evidence is tendered and when document has been admitted in
evidence and marked as an exhibit. The objection that it should
not have been admitted in evidence or that the mode adopted for
proving the document is irregular, cannot be allowed to be raised
at any stage subsequent to marking of the document as an
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... 26 ...
Exhibit. Hence, the objection that Exhibit PW1/C is a copy and
not the original plan has no substance.
23.
In the case of “Hemendra R. Ghia and Ors” (supra),
the Full Bench of this Court has dealt with the point as to when
the question of admissibility of document can be raised. Inter alia,
it has been observed
that if the objection to the proof of
document is not decided and the document is taken on record
giving tentative exhibit, then the right of
cross-examination is
seriously prejudiced. It is held that once the document is used in
cross-examination, then the document gets proved and can be
read in evidence as held in the case of “Ram Janki Devi Vs. M/s
Juggilal Kamlapat” [1971 DGLS (soft) 56]: [1971 (1) SCC 477]. In
the present case the plan Exhibit PW1/C was taken on record
after deciding the objections by a judicial order and besides that
the same was extensively used in the cross-examination. Hence,
the said plan which was signed by most of the allottees has been
rightly relied upon by the lower courts.
24.
DW1 admitted that she had no document showing her
title to the suit plot and that the defendant had not obtained any
licence for construction of structure in the suit plot. It is not
known as to why the defendant, who was only 49 years old in the

year 2001 when the evidence was recorded, did not enter the
witness box. Adverse inference as drawn by the Trial Court and
the First Appellate Court appears to be absolutely correct. In the
case of “Vidhyadhar” (supra), the Apex Court has held that
where a party to the suit does not appear into the witness box and
state his own case on oath and does not offer himself to be cross-
examined by the other side, a presumption would arise that the
case set up by him is not correct. Merely because the Form No. I
XIV of survey No. 248/34 shows the name of one “Domaciano
Fernandes” as the occupant,
that does not mean that the said
suit plot was allotted to the defendant. It is well settled that
survey records do not confer title. A perusal of the entire
evidence on record shows that there was manipulation of survey
records. As has been rightly held by the First Appellate Court,
the presumption under Section 105 of the Land revenue Code has
been rebutted. The possession of the plaintiff, in respect of the
suit plot is established. The defendant, unauthorizedly, interfered
with the possession of the plaintiff by starting some construction
activity in the suit plot. Hence, the judgment in the case of
“Anathula Sudhakar” (supra) is not applicable to the present
case. Suit for permanent injunction was maintainable.
25.
Insofar as the relief directing the survey authorities of

Village Nagorcem-Palolem to delete the name of Damaciano
Fernandes from the Index of survey record in Form No. I & XIV of
survey No. 248/34 of Village Nagorcem-Palolem and to insert the
name of the plaintiff in its place, is concerned, it is well settled
that such a direction cannot be given by the Civil Court in view of
express bar under Section 106 of the Land Revenue Code, 1968,
(the Code, for short) which provides that no suit shall lie against
the Government or any officer of the Government in respect of a
claim to have an entry made in any record or register as
maintained under this Chapter or to have any such entry omitted
or amended. Such function is assigned to revenue authorities
under the Code. In the case of “Narayan Mugu Teli (since
deceased) Vs. Ramchandra Mugu Teli” [2004 (3) ALL MR
880], it has been held that it is neither the function of Civil Court
to issue direction for making or deleting entries in the record of
rights and that this function is assigned to the revenue authorities
under the Maharashtra Land Revenue Code. It is further observed
that the proper relief which could be prayed for was declaration
of the title to suit land and once such a declaration is obtained
from the Court, the revenue authority will have to make or
correct the entries accordingly in the record of rights in respect
of the suit land. The provisions of the Code are almost similar to
the Maharashtra Land Revenue Code. In the case of “Anandi
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... 29 ...
Bhicaro Veluskar and others Vs. Kustanand Vithu Veluskar
and others” [2006 (6) Bom. C.R. 384], this Court relied upon
the judgment in the case of “Narayan Mugu Teli” (supra) and
held that the Appellate Court could not have directed insertion of
the names of the plaintiffs in the survey records. Again in the case
of “Narendra Voikunt Raikar Vs. Amaral Pereira” [2007 (3)
Mh. L.J. 252], a similar view has been taken. The Land Revenue
Code provides for the procedure for correction of the land
records.
Therefore, the trial Court could not have directed the
Survey Authorities/Talathi to delete the name of “Damaciano
Fernandes” and insert the name of the plaintiff in the index in
Form No. I and XIV of Survey No. 248/34.
26.
In view of the above, the substantial questions of law
as already framed and incorporated in paragraph 12 at serial nos.
(1), (2) and (3) and the additional substantial question of law
raised by the learned Counsel for the defendant and incorporated
at serial no. 2 in paragraph 13 above get answered against the
defendant. The substantive question of law raised by the learned
Counsel for the defendant and incorporated at
serial no.(1) in
paragraph 13 above, however is answered in favour of the
defendant.
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27.
The second appeal,
is, therefore, partly allowed.
Impugned Judgment, Order and Decree dated 07/08/2004, in
Regular Civil Appeal No. 84/2002 stands modified as follows:
Judgment, Order and Decree passed by the Civil Judge Junior
Division, Canacona, in Regular Civil Suit No. 106/1988 (N):
Regular Civil Suit No. 142/1986 (O), thereby granting relief of
Permanent Injunction restraining the defendant, his servants,
agents,
relatives
or
any
other
person
or
persons
from
constructing in or interfering with the suit plot bearing survey no.
248/34 is maintained whereas the order directing
authorities/Talathi of Village Nagorcem-Palolem
the survey
to delete the
name of Damaciano Fernandes from the Index of Survey record,
in Form No. I & XIV of survey no. 248/34 of Village Nagorcem-
Palolem and to insert the name of the plaintiff in its place is
quashed and set aside.
28.
Appeal stands disposed of accordingly, with no order
as to costs.
U. V. BAKRE, J.
SMA

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