Back
2014 Supreme(Bom) 1159
In the High Court of Bombay at Goa
U.V. BAKRE, J.
Damaciano Fernandes
Versus
St. Anthony's Chapel & Another
Second Appeal No. 100 of 2004
Decided on: 13-06-2014
For the Appellant:A.F. Diniz, Advocate.
For the Respondents:C.A. Coutinho, Advocate.
Headnote:Goa, Daman and Diu Land Revenue Code, 1968 - Section 106 Survey record. In view of express bar under Section 106 of Code, Civil Court cannot direct survey authorities to delete name and to insert some other name from survey record. 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. 1 & XIV of survey No. 248/34 of Village Nagorcem-Palolem an 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, 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) v. Ramchandra Mugu Telli, 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.
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. 1 and XIV of Survey No. 248/34.
Specific Relief Act, 1963 - Section 38 Grant of relief of permanent injunction. Plaintiff, establishing his possession over suit land, entitled to grant of permanent injunction in his favour. 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.
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.
1. Heard Mr. Diniz, learned Counsel appearing on behalf of the appellant and Mr. Coutinho, learned Counsel appearing on behalf of the respondents.
2. 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 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 subdivisions 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 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
