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In the High Court of Bombay at Goa
U.V. BAKRE, J.
Maina Sada Gaude alias Sangodkar & Others
Versus
State of Goa, Through its Chief Secretary, Secretariat & Another
Second Appeal No. 51 of 2004
Decided on : 23-11-2012
Against judgment and decree dated 6.5.2004 of First Appellate Court, dismissing appeal filed by appellant-plaintiff against judgment and decree dated 17.1.2001 of Trial Court dismissing suit for declaration - Contention that finding of First Appellate Court to effect that land assigned to plaintiffs was forest land is erroneous and First Appellate Court wrongly held suit barred by limitation - Point of limitation neither raised before trial Court nor before First Appellate Court - First Appellate Court cannot consider point of limitation suo motu without putting plaintiffs to notice - Compliance of legal notice under Section 80 of CPC by defendants gave cause of action to plaintiffs - Suit not barred by limitation - No direction can be issued to amend survey record in view of express bar under Section 106 of Code - Plaintif fs entitled only to a declaration that they are in lawful possession and enjoyment of land by virtue of title of assignment - Impugned judgment and decrees quashed and set aside - Suit partly allowed - Plaintiffs declared to be in lawful possession and enjoyment of land - Appeal partly allowed.
Forest Act, 1927 - Section 4 - Forest (Conservation) Act, 1980, Section 2 - Assignment of land.
Assignment of land in 1983, being prior in time to declaration under Section 4(1) of Act, 1927, assignment of title would prevail. -
The provisions of Section 2 of the Forest (Conservation) Act, 1980, the title of assignment cannot be construed to mean that title to the said land vests in the plaintiffs. Section 2 of the Forest (Conservation Act, 1980 imposes restrictions on the de- reservation of forests or use of forest land for non-forest purpose.
The official Gazette produced by the defendants through DW1 reveals that the Government, under Section 4(1) of the Forest Act, has declared that it has been decided to constitute, inter alia, part of survey No. 20 of Melaulim Village as reserved forest. Indisputably, a notification under Section 4(l) of the Forest Act merely declares the intention of the Government to constitute certain land as a reserved forest. After that, a proclamation under Section 6 has to be issued; inquiry under Section 7 has to be held, claims under Section 9 have to be disposed of, etc., etc. Final notification declaring the proposed forest as reserved forest is issued under Section 20 of the Forest Act, which admittedly, in the present case has not yet been issued. Be that as it may, such process had started in the year 1993 whereas the assignment of title in favour of Sada Gaude was in the year 1983. Even otherwise, the defendants could not convincingly prove as to which part of survey No. 20/1 has been declared as reserved forest. Hence, the said title of assignment, being prior in time as compared to the declaration under Section 4(1) of the Forest Act, would prevail.
LIMITATION ACT, 1963 - Article 58 - Suit for declaration.
Suit for declaration filed within three years from date of letter sent to Government to correct wrong entries in survey records, is within limitation. - It was held that right to sue accrued when the defendants refused to admit the claim of the plaintiffs i.e. only seven days before the filing of the suit and hence the suit cannot be held to be barred by limitation. Entries in the record of rights have only presumptive value and they are presumed to be true until the contrary is proved. In the case at hand, since the wrong entries in the survey records created a cloud of suspicion over the claim of lawful possession and enjoyment of the plaintiffs with regard to the suit property, the plaintiffs had sent letter dated 6.5.1991 to the defendant No. 2 informing about the wrong entries in the survey records and requesting to agree for correction of the same. Since the defendant did not reply, the plaintiffs sent legal notice under Section 80 of CPC. The defendants still did not reply. This non-compliance gave cause of action to the plaintiffs and hence the prayer of declaration has been sought. The suit, therefore, was not barred by limitation.
This is plaintiffs' second appeal. Heard learned counsel for both the parties.
2. The parties shall be referred to in the manner in which they appear in the cause title of the Regular Civil Suit No. 64/2001/A.
3. The plaintiffs had filed the said Suit for declaration that they are in lawful possession and enjoyment of the suit property and that the name of forest department entered in the other rights column of Form No. I & XIV of record of rights in respect of suit property is illegal and incorrect. A direction was also sought to be given to the Land Survey Department, Panaji, Goa to delete the name of Forest department from the other rights column in Form No. I & XIV in respect of the suit property and to enter the name of plaintiffs in that place and in occupants' column.
4. Case of the plaintiffs, in short, was as follows:-
The suit property known as “Goulewada” or “Zambolichem Mol”, admeasuring 38.97.00 hectares, situated in village Melaulim of Taluka Sattari, Goa, consists of cashew trees, mango trees, jackfruit trees and teak wood trees and they and their family members have been cultivating paddy and nachne in a portion of it for last more than 45 years. By deed of title of assignment dated 17/08/1983, the Government of Goa, Daman and Diu granted an area of 20.5259.62 hectares of the suit property in favour of late Sada Seguna Gaudo, the husband of plaintiff no. 1/father-in-law of the plaintiffs no. 2 to 10, on payment of annual rent of Rs. 31.75. Late Sada Seguna Gaudo had applied for grant of the said land in the year 1981 and accordingly the Government had made the said grant on 17/08/1983. The remaining area of 18.4440.38 hectares of suit property has been developed by the plaintiffs for the last more than 50 years and the plaintiffs are in possession and enjoyment of the said remaining area and have perfected their title to the said area by their continuous possession and enjoyment. In the survey records, the name of forest department has been wrongly entered in the other rights column. They had addressed letter dated 6/5/1991 to defendant no. 2 for correction of the survey records by deleting the name of forest department but Defendant no. 2 did not reply. Legal notice dated 20/6/1991, under section 80 of the C.P.C., was served on the defendants who did not comply with the same.
5. The defendants resisted the suit and stated as follows:
The suit property has always been in possession and enjoyment of defendant no. 2 and in the year 1977 it was declared as “Reserved Forest”. The suit property consists of teak wood trees and other jungle trees and not cashew trees, mangoes trees and jackfruit trees. The plaintiffs have never objected to the survey records which are in the name of defendant no. 2. The defendant no. 2 have cultivated teak plantation and the said teak trees are more than 10 years old. The plaintiffs are in possession of another property bearing subdivisions no. 1 and 3 of survey no. 60 of Village Melaulim of Taluka Sattari, Goa, in which they are residing and having mango trees and jackfruit trees. Even otherwise, the alleged title of assignment does not relate to the entire property under survey no. 20/1 and the said title of assignment does not confer domain of title of the property under survey no. 20/1, on the plaintiffs. The right conferred under the said title of assignment has ceased to exist in view of the breach of Article 76(a) of the Decree no. 3602. The plaintiffs never cultivated any paddy or nachni in any part of the suit property. The suit property is a forest and by virtue of notification of the Government dated 22/07/1993, published in the Official Gazette, under section 4 of the Indian Forest Act, 1927, the same is a reserved forest and such forests get protection under section 2 of the Forest Conservation Act, 1980. The defendants have been holding auction for the sale of timber from the suit property since 1979 and it is false that the plaintiffs had been in possession of
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