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Shri Sanjay Z. Rane, Vs. Smt. Saibai S. Dubaxi (Since Deceased Through Her Legal Representatives Motiben Shivaji Nadkarni and ors.) and Smt. Manoramabai Rauji Rane (Deceased by Her Legal Representative Shri Fatesingh Raoji Rane and ors.) - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 15/2000
Judge
Reported in2009(111)BomLR2668
ActsCode of Civil Procedure (CPC) (Amendment) Act, 2002 - Sections 4 and 100A; Land Acquisition Act, 1894 - Sections 4, 6, 9(2), 18, 25 and 53; Benami Transactions (Prohibition) Act, 1988; Goa, Daman and Diu (Administration) Act, 1962 - Sections 1, 5, 6, 7 and 8; Goa, Daman and Diu Judicial Commissioner's Court (Declaration as High Court) Act 1964 - Sections 3, 8 and 11; Maharashtra High Court (Hearing of Writ Petitions, by Division Bench and Abolition of Letters Patent Appeals) Act, 1986; Goa, Daman and Diu Reorganisation Act, 1987 - Sections 20, 20(1), 20(3), 20(4), 22, 25 and 30; Small Causes Act; Bombay (Extension of Jurisdiction to Goa, Daman and Diu) Act, 1981 - Sections 3, 4, 7(2), 7(3), 9 and 13; States Reorganisation Act, 1956 - Sections 52, 54, 57 and 69; Goa Land Revenue Code
AppellantShri Sanjay Z. Rane, ;smt. Zanyogita Z. Rane, ;shri Jitendra Z. Rane and Smt. Jyoti Botelho
RespondentSmt. Saibai S. Dubaxi (Since Deceased Through Her Legal Representatives Motiben Shivaji Nadkarni and
Appellant AdvocateS.K. Kakodkar, Sr. Adv. and ;Rama Rivonkar, Adv.
Respondent AdvocateS.G. Dessai, Sr. Adv., ;S. Rodrigues Adv. for Respondent No. 1 and ;S. Vahidulla, Adv. for Respondent No. 2
DispositionPetition dismissed
Excerpt:
- maharashtra village police act (46 of 1967)sections 5, 6 & 15: [swatanter kumar, c.j., a.p. lavande & smt. vasanti a. naik, jj] powers of police patil held, section 15 clearly states the varied powers that are vested in the police patil. he is vested with the power to call and examine witnesses, record their statements and search for concealed articles. such are the powers given to the police patil under the provisions of the village police act. the powers vested in the police patil under the provisions of the village police act are relatable to the duties and functions for which the police patil is appointed. to give meaning to these powers beyond the scope of the duties would be an approach not quite permissible in law. the duties, functions and powers of the police patil under the.....b.p. dharmadhikari, j.1. letters patent appeal was disposed of on 18.9.2002 by this court and said judgment was challenged in special leave petition by the present appellants before the hon'ble apex court. hon'ble apex court vide its order dated 13.10.2004 delivered in civil appeal no. 1416/03, remanded the matter back to this court in view of the judgment of full bench of this court in case of rahul sharad awasthi v. ratnakar trimbak pandit and ors. : 2004(5)bomcr50 . it appears that on 18.9.2002, this court took a view that section 4 of code of civil procedure (amendment) act, 2002, especially in relation to section 100a thereof was applicable retrospectively and, therefore, letters patent appeals already filed were not maintainable. this court, at that time, granted certificate under.....
Judgment:

B.P. Dharmadhikari, J.

1. Letters Patent Appeal was disposed of on 18.9.2002 by this Court and said Judgment was challenged in Special Leave Petition by the present appellants before the Hon'ble Apex Court. Hon'ble Apex Court vide its Order dated 13.10.2004 delivered in Civil Appeal No. 1416/03, remanded the matter back to this Court in view of the Judgment of Full Bench of this Court in case of Rahul Sharad Awasthi v. Ratnakar Trimbak Pandit and Ors. : 2004(5)BomCR50 . It appears that on 18.9.2002, this Court took a view that Section 4 of Code of Civil Procedure (Amendment) Act, 2002, especially in relation to Section 100A thereof was applicable retrospectively and, therefore, letters patent appeals already filed were not maintainable. This Court, at that time, granted certificate under Article 134, r/w Article 133 of the Constitution of India to the appellants in LPA No. 7/96. In view of the orders dated 13.10.2004 of the Hon'ble Apex Court, the present appeal has been listed before this Court. The judgment impugned in this appeal is delivered by learned Single Judge of this Court on 12.10.99, dismissing First Appeal No. 116/197 filed by the present appellants. The said first appeal challenged the Judgment and Order delivered in reference proceedings under Section 18 of the Land Acquisition Act, 1894 by the District Judge, Panaji.

2. The State of Goa acquired a part of land surveyed under Survey No. 106, admeasuring 21,450 sq. metres for construction of a canal. Compensation for said land acquisition was paid to original respondent No. 2, Smt. Manoramabai Rauji Rane (now deceased). Respondent No. 1 Smt. Saibai S. Dubaxi (now deceased) claimed 1/3rd joint and undivided share in the said land and along with 5 other persons applied to the Special Land Acquisition Officer (SLAO) to make reference to the District Court under Section 18 of the Act and sought enhancement of compensation. That application was rejected by the SLAO and hence, all of them filed Writ Petition No. 261 of 1986 before this Court and vide Judgment dated 9.2.1988, this Court directed SLAO to make reference to District Court. Civil Suit No. 718/85 (later on numbered as Civil Suit No. 1/88) filed by the present respondent No. 1 and some other persons in relation to very same property and pending on the file of Civil Judge, Sr. Division, Bicholim was also transferred to District Court, Panaji with direction to try and dispose of it along with reference proceedings. The appellants, thereafter, moved the SLAO for making reference under Section 18 of the Act, claiming 2/3rd interest in the acquired land. The SLAO declined that request and they approached this High Court in Writ Petition No. 212/88 and vide Judgment dated 22.11.88, this Court directed SLAO to make reference. Accordingly, reference No. 19/89 was made to the District Court, Panaji. It is not in dispute that all three proceedings have been tried together. By separate Judgment delivered on 10.6.1995, the learned District Judge, dismissed the suit filed by respondent No. 1 and decreed counter-claim made by present respondent No. 2 in that suit. By another Judgment on same day, Land Acquisition Case No. 19/89 also came to be dismissed. The reference Court found that the present appellants could not prove that suit plot which was part of Survey No. 106 belonged to them. It further found that respondent No. 1 Smt. Saibai also could not prove that any part thereof belonged to her. While answering issue No. 3, it held that respondent No. 2 Smt. Manoramabai proved that she was owner of survey No. 106 and, therefore, compensation was rightly paid to her. Against this adjudication, the applicants in LAC No. 19/89 filed First Appeal No. 116/97 before this Court and after hearing the parties, above findings have been maintained by the learned Single Judge vide impugned Judgment dated 12.10.99. This Court while hearing the LPA on 9.8.2000 issued notice and then admitted the LPA for final hearing on 5.9.2000. One of the contentions of present respondent No. 2 (through her legal heirs) is that the appeal has been admitted only on limited aspect, as notice issued was restricted. Hence, reference to both these orders passed while issuing notice and admitting the LPA in more details is warranted little later.

3. In this backdrop, we have heard Senior Advocate Mr. S.K. Kakodkar with Mr. Rama Rivonkar for the appellants and Senior Advocate Mr. S. G. Dessai with Ms. S. Rodrigues for the legal heirs of respondent No. 1 and Advocate Mr. S. Vahidulla for legal heirs of respondent No. 2. The relationship between the parties is not in dispute and family tree is admitted. We will refer to it during the course of Judgment. It is to be noted that respondent No. 1 did not challenge the Judgment delivered by the District Judge, dismissing her civil suit and her reference application.

4. Shri Dessai has raised a preliminary objection and contended that the LPA as filed, is not maintainable because the Bombay High Court, having its Bench at Goa cannot and does not retain jurisdiction to entertain intra court appeals in view certain specific legal provisions. We wish to consider this controversy after narrating the arguments of parties on merits. Accordingly, we proceeded to hear learned Senior Advocate Mr. Kakodkar on merits of controversy.

5. Advocate Kakodkar has urged that the contention about limited scope of present appeal on merits because of alleged restriction placed in Order dated 9.8.2000 while issuing notice is misconceived. On merits, it is contended that learned District Judge as also the Learned Single Judge of this Court were in error in holding that the property surveyed under Survey No. 106 belonged to Manoramabai or was in her possession. He insisted and on several times repeated that one of the sons of Manoramabai by name Pratapsingh (present respondent No. 2(b)) is an influential politician belonging to ruling party and at the relevant time he was Minister in the State of Goa and because of his influence over Revenue Department and Forest Department several documents were fabricated to suit the design of showing his mother Manoramabai as owner of field survey No. 106. He states that both the Courts have erroneously concluded that the said field was having local name Pondornichem Mol while actually it is Culan. He states that there was field property called Languem Culan and it was later on sub-divided into Baillem Culan and Culan. According to him, Culan forms the subject-matter for present consideration. He has attempted to demonstrate that the said Languem Culan initially belonged to one Morajkar, against whom a Decree was obtained and for satisfaction of that Decree, the Court auctioned the said property way back in 1936-37. In that auction, the said property was purchased by Rauji Satroji Rane, i.e. husband of original respondent No. 2 Manoramabai, but then that purchase by Rauji was for Zaidev, son of Satroji Rane and when said Zaidev expired in 1956 as there was no lineal descendant, in inventory proceedings Rauji Satroji Rane came to be appointed as an Administrator. While disclosing and declaring properties of Zaidev, Rauji Rane declared this property i.e. the suit property as the property of Zaidev and that property was accordingly apportioned between heirs of Satroji Rane who happened to be the real cousin of Zaidev. These properties in those inventory proceeds devolved upon heirs of Ahilyabai wife of Satroji Rane and not upon heirs of his other wife by name Rukminibai who expired way back in 1905. He invited attention to public notice of auction proceedings and also to inventory proceedings to substantiate this stand. In this background, it is his contention that when the title to suit property has been established by the appellants, the finding about title of Manoramabai based only upon revenue entries or then because of presumption under Section 105 of the Goa Land Revenue Code is unsustainable. He has attempted to show that the finding on issue of title in favour of Manoramabai recorded by the trial Court, as also the learned Single Judge of this Court is also erroneous. He points out that the Courts have proceeded on the basis that earlier the suit property was having Cadastral Survey No. 1 and in the survey undertaken in 1973 and completed in 1976 it was given survey No. 106. He points out the huge difference in area of these survey numbers to contend that these properties are clearly distinct and separate. The other evidence on record is also shown to urge that field known as Pondornichem Mol was some other property and not Culan. He states that because of Vithal Temple and idol in that field, it was named Pondornichem Mol. He invites attention to boundaries of the field to show that the findings in this respect, as reached, are clearly contrary to recored.

6. According to him, the records of Revenue Department or the Cadastral survey, as relied upon by both the Courts to hold that Cadastral survey No. 1 and Survey No. 106 are one and same, have not been proved in accordance with law. He states that xerox copy of old Cadastral map was admitted on record during the evidence of Respondent No. 2(a) Fatehsingh without any objection and that document has been mechanically used against these appellants by treating as if they had consented to it. He states that said document was originally exhibited in a reference case filed at the instance of respondent No. 1 Smt. Saibai Dubaxi as Exhibit RW.1/C and the present appellants were not parties to the said proceedings. The order sheets recorded in reference case filed by the present appellants show that more than 2 years thereafter said examination-in-chief of Fatehsingh and his cross examination by Saibai Dubaxi was accepted as evidence in reference case of the present appellants and they cross examined Fateh singh further. He contends that while adopting the said evidence of Fateh singh as evidence in case of the present appellants, in order sheet consent of present appellants has been recorded, but then the consent is only for the purposes of adoption of examination-in-chief and cross examination of Fateh singh as evidence in appellants' reference. By no stretch of imagination the said consent can be said as consent for exhibiting the document Exhibit RW.1/C. In the alternative, it is contended that though document is exhibited, it does not mean that contents of said document are also proved. According to him, the contents of said document ought to have been independently proved and he invites attention to map of old Cadastral survey at Exhibit X-1 produced by the appellants to urge that the legend appearing on Exhibit RW.1/C does not find mention on Exhibit X-1. The said legend which mentions Cadastral Survey No. 1 as Pondornichem Mol is introduced at the instance of respondent No. 1 on copy only and it does not form part of original Cadastral survey. According to him, therefore, proving contents of document was essential. Reliance upon this document to show that survey No. 106 is not Culan, but Pondornichem Mol, is clearly an error.

7. He points out that Rauji Satroji Rane, husband of respondent No. 2 not only accepted the said property to be of Zaidev, but also allowed it to be apportioned as property of Zaidev and as per Article 215 of the Portuguese Civil Code, the allottees became absolute owners of that property after inventory proceedings which concluded in 1960. He states that Rauji Satroji Rane died in 1968 and the provisions of the Benami Transactions (Prohibition) Act, 1988 (referred to as 1988 Act hereafter) came into force 20 years thereafter. The appellants were owners after 1960 and right from the date of purchasing it in auction their predecessor-in-title was the owner. Hence, there was no question of raising plea of benami as such in the matter by the appellants and the bar worked out by both the courts under the said Act as such is misconceived.

8. Emphasizing the circumstances in which the matter reached the District Court in reference and after inviting our attention to order sheet maintained in the reference proceedings, it is contended that the entire trial stands vitiated as there were no pleadings on record. It is pointed out that after reference was filed and reached the District Court, the said Court issued notices to respondents No. 1 and 2 for filing written statement and though written statement was not filed, ultimately the matter was fixed for evidence and parties led evidence without any pleadings. He points out Judgment of Division Bench of this Court reported at 1990 (2) G L.T. 225 Union of India v. Mrs. Maria Julia Viegas, to state that in the said Judgment the Division Bench of this Court has taken a view that pleadings are not very relevant and in view of that law, all parties proceeded further with the trial in the absence of pleadings. He invited attention to the Judgment reported at : (2005)107BOMLR879 Jacinto Minguel De Quadros Barretto and Ors. v. Haridas Maruti Kamat and Anr., to point out that reference proceedings under Section 18 are in the nature of interpleader's suit and pleadings are essential. According to him, the controversy whether Survey No. 106 was Pondornichem Mol or Culan ought to have been pleaded and the parties needed previous notice of such case before they entered witness box. He points out that in present circumstances field property known as Languem Culan of Morajkar was auctioned and purchased by Zaidev. In due course of time Languem Culan was sub-divided as Baillem Culan and Culan. In view of these developments, he contends that unless and until parties had notice of all these developments and there were pleadings to that effect, the Courts below could not have proceeded further with trial. He also argued that it was an obligation cast upon the Court to direct parties to file their pleadings and hence in the absence of such order, the trial is vitiated.

9. He points out that two letters, allegedly written by Manoramabai claiming compensation for the acquired land have not been produced on record and have not been proved. Whether the letters were written by Manoramabai or her authorised attorney. In what capacity compensation was claimed and contents of those letters are very relevant and as those letters did not come on record, payment of compensation to Manoramabai could not have been maintained. He states that though this contention was specifically raised before the trial Court as also before the lower appellate Court, the aspect has been lost sight of by them.

10. To support his contention that the appellants have proved their ownership and possession over the acquired land, the learned Senior Advocate has taken us extensively through the oral evidence, as also documents on record.

11. To counter the contention that LPA has been admitted only on limited grounds, order dated 9.8.2000 issuing notice before admission is pointed out to show that it does not decide any aspect. It is further contended that while admitting the LPA on 5.9.2000, this Court has admitted the appeal on all grounds and the order issuing notice before admission therefore merges into the final order of admission. According to the learned Senior Advocate, therefore, the argument of restricted or limited admission is not proper in present circumstances. Our attention is also invited to provisions of Order 41, Rule 11 and Rule 12 of Code of Civil Procedure to point out that there has to be either complete admission or then complete dismissal of appeal. To support the contention, reliance has been placed upon Judgments of the Hon'ble Apex Court reported at : AIR1982SC1223 Ramji Bhagala v. Krishnarao Karirao Bagre and Anr., Full Bench Judgment of this Court reported at AIR 1934 Bom 207 Krishnaji Shrinivas Jalvadi v. Madhusa Appansa Ladaba and Judgment of Madras High Court reported at AIR 1940 Mad 483 Vattipalle Eswariah v. Vattipalle Rameswarayya.

12. Senior Advocate Dessai, on the other hand, has contended that the reference, as filed, is clearly by way of afterthought and malafide one. Notification under Section 4 of the Land Acquisition Act was published on 28.2.1986 for acquiring 21,450 sq. metres of land, surveyed under Survey No. 106 and Notification under Section 6 was published on 18.9.1986. These notifications disclose Manoramabai as owner and in possession. This was because of mention of her name as such in the revenue records prepared as per provisions of Goa Land Revenue Code, 1968. Our attention has been invited to provisions of Sections 105 and 107 of the Code for that purpose. It is further stated that it has not been disputed that present survey No. 106 was having old cadastral survey No. 1 and old cadastral survey number mentioned Satroji Rane as occupant. Our attention has been invited to new survey map at Exhibit P.W.1/B to show that there is public road on its southern side which goes from Bicholim to Sanquelim. The old cadastral at Exhibit R.W.1/C is also pointed out to show that it mentions the name of property as Pondornichem Mol. It is stated that in view of this position, it is apparent that notices under Land Acquisition Act were rightly issued in the name of Manoramabai and served upon her. Compensation was, accordingly, awarded to her in Award made on 27.11.1986 and present appellants never claimed any interest in that land. When respondent No. 1 Saibai Dubhaxi claimed 1/3rd right in survey No. 106 and contended that it was part of Codal and also stated that 2/3rd belong to Ranes (the appellants), the appellants filed an application on 26.5.1987 under Section 18 and sought reference. He points out that this application dated 26.5.1987 has not been exhibited, but the present proceedings were initiated because of it and it mentioned the property as Culan and Zaidev was alleged to be 2/3rd owner thereof because of purchase in auction in 1938. When SLAO rejected the said application, Writ Petition was filed in 1988. He, therefore, states that the appellants have acted by way of afterthought and were never diligent.

13. He further points out that in view of this position, hence the burden lay upon the appellants to prove their title to the acquired property and the appellants did not produce any title document in support of their stand. They rely upon the notice of auction and thereafter, the actual auction proceedings in which 1/3rd property went to Dubaxi and 2/3rd property was purchased by Rauji Satroji Rane. He contends that there was no document to show any purchase by Zaidev and 3 properties of Morajkars auctioned then did not include the acquired property. Story of benami ownership of Zaidev was evolved only after document Exhibit RW.1/G was produced by respondents to show that acquired property did not form subject-matter of said auction. Attention is invited to items at serial Nos. 73 and 74 in inventory proceedings relied upon by the appellants to urge that there was no public road on southern side of the said property and the properties mentioned therein were not registered while property possessed by Rauji is registered as per document Exhibit RW.1/G. It is further argued that no document has been filed on recored to show that Languem Culan was at any point of time bifurcated into Baillem Culan and Culan. It is contended that in fact there was no such case put to any of the witnesses of the respondents by the appellants. Learned Senior Counsel has compared boundaries of Items No. 73 and 74 in an attempt to show that these properties situate side-by-side and not one above the other. In these circumstances, it is contended that both Courts have correctly held that the appellant has failed to prove their title to the acquired property.

14. Our attention has been invited to inventory proceedings of 1905 vide Exhibit RW.1/D to show that the cadastral survey No. 1 which formed item No. 21 therein was sub-divided, but came to lineal ascendant Rukminibai of these respondents and did not go to Ahilyabai. It is further stated that boundaries thereof clearly demonstrate that it is survey No. 106. In this background, by referring to exhibit RW.1/C it is urged that acquired property has been rightly held to be Pondornichem Mol by both the Courts. It is stated that in 1905, the property came to branch of present respondents and the branch of appellants lost any title or interest to the said property. For this purpose, our attention has been invited to evidence tendered by Shri Sanjay Rane on behalf of the appellants and their witness (surveyor) Prazeres Gonsalves. The impugned order passed by the learned Single Judge is stated to be in accordance with the material on record.

15. The difference in area, as appearing in revenue records, is sought to be explained by pointing out evidence of AW.2 Gonsalves and also evidence of Fatehsingh for the respondents. It is urged that 10000 sq. metrs mentioned in Matriz Certificate Exhibit RW.1/E is the area of cultivable portion for which land revenue was assessed. In the alternative, it is urged that when the boundaries are certain, boundaries have to prevail and the area mentioned becomes insignificant. Judgments in case of the Palestine Kupat Am Bank Co-operative Society Ltd. v. Government of Palestine and Ors. reported at AIR 1948 PC 207 and Roy and Co. and Anr. v. Sm. Nani Bala Dey and Ors. reported at : AIR1979Cal50 are cited.

16. Judgments relied upon by Advocate Kakodkar while urging that LPA must have been admitted either as a whole or dismissed completely are sought to be distinguished by stating that both those judgments are delivered in second appeals and Judgment of Delhi High Court in Shri Suraj Bhan and Anr. v. Shri Rajinder Pal Singh Lamba and Ors. reported at 1991 DLT 202 : is cited to urge that provisions of C.P.C. are not applicable to LPAs.

17. By inviting our attention to provisions of Goa, Daman and Diu (Administration) Ordinance, 1962 which came into force from 5.3.1962 and later on became the Goa, Daman and Diu (Administration) Act, 1962, it is urged that entire jurisdiction being exercised by the highest Court under the Portuguese regime known by name Tribunal de Relacao was transferred to Bombay High Court as per said enactments. However, Section 7 of the said Act of 1962 required Central Government to publish Notification in Official Gazette specifying the date on which jurisdiction of High Court at Bombay would be extended to Goa, Daman and Diu. Said Section 7 never came into force as Central Government never published such notification and it was deleted later on with effect from 16.12.1963 because of provisions of Goa, Daman and Diu Judicial Commissioner's Court (Declaration as High Court) Act 1964. By virtue of Section 3 of 1963 Regulation, Court of Judicial Commissioner was constituted with such number of Additional Judicial Commissioners that Central Government decided for Goa, Daman and Diu because of Section 8 and Section 11. The said Court of Judicial Commissioner became the highest Court or the High Court for this part and said Regulation did not provide for any intra court appeals or any LPA. Section 20 of this Regulation enabled the Court of Judicial Commissioner to make Rules then. The Rules made there under also did not provide for any such intra court appeals. Goa, Daman and Diu Judicial Commissioner's Court (Declaration as High Court) Act, 1964 was then brought into force with effect from 16.12.1963 and Section 8 of the said Act repealed Section 7 of 1962 Act. Attention has been invited to Statement of Objects and Reasons of this Act and also to Section 6 to show that Judicial Commissioner was competent to issue writs under Article 226 of the Constitution of India. Rules framed for transaction of business by the Judicial Commissioner are pointed out to urge that these Rules did not provide for any intra court appeals.

18. In this background, out attention has been invited to High Court at Bombay (Extension of Jurisdiction to Goa, Daman and Diu) Act, 1981 (referred to as 1981 Act hereafter) to show that from the appointed day i.e. 30.10.1982 the jurisdiction of High Court of Bombay came to be extended to Union Territory of Goa, Daman and Diu. However, while defining jurisdiction of Bombay High Court in Union Territory all jurisdiction, powers and authority exercisable by the Court of Judicial Commissioner immediately before the appointed day are only made exercisable by the Bombay High Court in the said Territories. It is contended that Section 4 therefor has the effect of curtailing jurisdiction to entertain letters patent appeals otherwise available to Bombay High Court in the State of Maharashtra. Section 9 is also pressed into service to show that the jurisdiction to be exercised by the High Court is with reference to Section 4 only. Section 13 is pressed into service to show that it enables passing of orders for removal of difficulties and accordingly, order for removal of difficulties came to be issued in 1982 as per Clause (2) thereof. In the absence of any express provision in the said earlier Rules, the provisions of Bombay High Court Appellate Side Rules, 1960 are to be followed in the proceedings before Goa Bench. It is, thus, contended that all these legal provisions clearly show that the jurisdiction then being exercised by the Judicial Commissioner's Court was only conferred upon the High Court by 1964 Act and this position was continued even by 1981 Act. Thus, at Goa the provision in relation to exercise of letters patent jurisdiction is not applicable and hence the LPA is not maintainable.

19. In the alternative and without prejudice to this submission, learned Senior Advocate Dessai has contended that even if it is presumed that jurisdiction to entertain such intra court appeals in the nature of LPAs is available at Goa, still in Maharashtra itself the power to entertain letters patent appeals has been taken away by The Maharashtra High Court (Hearing of Writ Petitions, by Division Bench and Abolition of Letters Patent Appeals) Act, 1986. It is stated that the Act abolishes LPAs on and after 1.7.1987 and because of Goa, Daman and Diu Reorganisation Act, 1987(referred to as 1987 Act hereafter) which came into force from 30.5.1987, Goa became independent State. It is further pointed out that Maharashtra State Legislature also amended the provisions of Bombay City Civil Court and Bombay Court of Small Causes Act by Maharashtra Act No. XV of 1987 and increased the pecuniary jurisdiction of City Civil Court and Court of Small Causes. It is stated that similar Act passed by Madhya Pradesh State Legislature in 1981 was quashed by Hon'ble Full Bench of Madhya Pradesh High Court and Madhya Pradesh State approached the Hon'ble Apex court against that Judgment. Because of certain complications arising from enhancement of pecuniary jurisdiction and also abolition of LPAs, the Bombay High Court had also passed some interim orders and LPAs were being entertained. Said matters before the High Court were also transferred to the Hon'ble Apex Court and have been considered along with challenge raised by Madhya Pradesh State Government and validity of abolition has been upheld in the judgment of Jamshed N. Guzdar v. State of Maharashtra and Ors. reported at : AIR2005SC862 . After these Judgments and in view of certain observations made therein, Maharashtra State Legislature had passed Maharashtra Act No. XXVII of 2008 to amend the above mentioned 1986 Act. It is contended that though the said Act has not come into force in the State of Maharashtra, it is apparent that after 1.7.1987, remedy of LPA is not available in the State of Maharashtra. Thus, when Bombay High Court has lost that jurisdiction, it cannot exercise such a lost jurisdiction in Goa. Learned Senior Advocate therefore contends that the present LPA is not maintainable.

20. To point out the difference in the scheme of Section 3 and Section 4 of 1981 Act, our attention has been invited to P.V. Hemalatha v. Kattamkandi Puthiya Maliackal, Saheeda, and Anr. reported at : [2002]3SCR1098 wherein the Honble Apex Court has considered the provisions of Section 52 of States Reorganisation Act, 1956 and it is contended that said provision is pari materia with Section 4 of 1981 Act or Section 22 of 1987 Act. It is contended that Section 3 does not extend jurisdiction of Bombay High Court to Goa, but it only entitled Bombay High Court to enter upon inquiry in relation to laws of Goa and scope of jurisdiction is laid down in Section 4 of 1981 Act. To rebut the argument that the challenge regarding maintenance of LPA as raised is stale, reliance is placed upon judgment of Honble Apex Court in Jamshed N. Guzdar v. State of Maharashtra and Ors. (supra) and it is stated that the objection has been raised only after Honble Apex Court held that it is within the competence of State Government to legislate in relation to such jurisdiction of High Court.

21. Lastly, by placing reliance upon Judgment of Honble Apex Court in Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanastus and Ors. reported at AIR 1954 SC 526, it is urged that present appellants have to stand on their own feet and they cannot seek to take advantage of the weakness of the case of the present respondents. They have willingly participated in the trial without filing any pleadings and also cross examined the other side. Hence, they are estopped from contending that trial is vitiated for its want. Advocate Dessai has contended that because of provisions of Articles 230 and 231, the Parliament has to legislate independently to confer such letters patent jurisdiction upon the common High Court for Goa, as it is provincial Legislation which has given that jurisdiction to the High Court at Bombay.

22. Advocate Kakodkar, in his brief rejoinder has stated that after jurisdiction of Bombay High Court was extended to Union Territory of Goa, Daman and Diu in 1981, letters patent jurisdiction also stood extended. He contended that subsequent abolition of letters patent jurisdiction in the State of Maharashtra has got no relevance because the Goa State Legislature had not passed any enactment. He contends that LPAs are being entertained even today by Bombay High Court. He has invited our attention to relevant provisions of 1981 Act and 1987 Reorganisation Act for said purpose. He contends that P.V. Hemalatha v. Kattamkandi Puthiya Maliackal, Saheeda reported at and Anr. (supra) does not consider the case of common High Court and is not relevant in the present facts as entire jurisdiction of Bombay High Court is exercisable in Goa.

23. He further states that the Judgment in the case of Shri Suraj Bhan (supra) states that the provisions of C.P.C. may not be applicable to LPAs, but the same can be looked into for guidance and he urged that this Court should consider the provisions of Order 41, Rules 11 and 12 as guiding provisions. He again briefly invites attention to certain parts of evidence of Anant Naik and of Gangaram Pail to show that the respondents could not establish their title to the acquired property. He states that when boundaries of the property itself have been disputed and have not been established, the case law about precedence to be given to boundaries has no relevance. It is further argued that plea of tenability of LPA could be taken even during the pendency of SLP or other proceedings before the Honble Apex Court.

24. In view of rival contentions, it is first necessary for us to find out whether LPA has been admitted on any limited ground by this Court. On 9.8.2000, after mentioning the facts very briefly in two to three sentences, this Court has recorded submission of learned Counsel of the appellants that the finding given by District Court with respect to ownership of respondents No. 2(a) to 2(g) was without any material in support. Thereafter, his other contention in the alternative has been recorded and relevant portion reads : He submits that assuming that they are awarded the compensation on the basis of their possession as established from 1973 onwards, the finding with respect of the ownership will affect the appellants with respect to their rights concerning the other part of the land which is not acquired. This Court has then stated To examine this limited aspect, notice to respondents No. 2(a) to 2(g), returnable on 28th August, 2008. It is apparent that there were two submissions before this Court and this Court has not decided any of the submissions. The second submission was in alternative and also an additional submission. Thus, words This limited aspects used by this Court in its Order dated 9.8.2000 do not refer to the only subsequent arguments advanced as an additional ground. The first ground is in relation to absence of any material to support the finding of ownership. Second ground also contemplates absence of ownership, but proceeds on presumption that compensation was paid to respondents because of their possession from 1973 onwards. Second ground states that such a finding affects the rights of appellants in relation to other part of very same property which is not acquired. If the arguments of Advocate Dessai are accepted, it means that this Court wanted to look into correctness or otherwise of finding on ownership recorded by the learned Single Judge in relation to its effect on other part of the property which is not acquired and, therefore, it did not form the subject-matter of litigation. Even if it is presumed that such was the intention of this Court on 9.8.2000, how a finding on ownership which is good and valid in relation to acquired property could have been disturbed only in relation to its other part which has not been acquired. Very recording of order shows that this Court was concerned with the finding on ownership and it did not decide any controversy on 9.8.2000. This Court had only recorded contentions and not reasons for such contentions. This Court also has not rejected either of the contentions. We, therefore, find that this Court has not decided anything on 9.8.2000 and contention of Advocate Dessai that issue of title to the acquired property has attained finality and the LPA has been entertained only to find out correctness or otherwise thereof in relation to unacquired part thereof, cannot be accepted. Order dated 9.8.2000 does not decide anything and only after briefly recording two contentions, issues notice before admission. On 5.9.2000, the appeal has been admitted after hearing both sides and one of the learned Judges who was party to Order dated 9.8.2000 is party to this order of admission. The order of admission does not in, any way, restrict scope of hearing on merits in appeal. In view of this, we do not find it necessary to refer to provisions of Order 41, Rules 11 and 12 of C.P.C. or even to refer to the case laws cited by the parties for said purpose.

25. Before undertaking discussion on merits, we find it appropriate to mention family tree so as to show how the parties are related to each other. The family tree is :

FAMILY TREE

Rauji Rane

|

______________________________|

|

Zaiba Zaitoji

| |

Satroji Rane Zaidev

(died 1956)

married to

|

____|______________________________________

| |

Ahilyabai Rukminibai

| (died 1905)

| |

_________________________ ______|_________________________________________

| | | | | | | | |

Tarabai Kamlabai Zaiba Satroji Raoji Satroji Xababai Salubai Crisnaji Chondrabai Tanibai

Gaekwad Gujjar (died 1983) Rane (died

(Son Ganpat married to 1968)

Gujjar) married to

Sanyogita Manoramabai

| |

Sanjay Rane Fatehsingh,

and Others Pratapsingh

26. Zaidev who died in 1956 is stated to be the original owner of acquired property and it is contended that in inventory proceedings, after his death in 1956, the property devolved upon present appellants. Respondents claim that the property was received from their lineal ascendant in 1905 itself. The appellants as also the respondents are lineal descendants of Satroji Rane, but from different wives. Satroji had wife by name Ahilyabai and Zaiba Satroji Rane alias Bayasab who died in 1983 was her son and father of present appellants. Rukminibai was the other wife of Satroji and Raoji Satroji Rane who died in 1968 was her son. Rauji had married with Manoramabai who was original respondent No. 2 and who received the amount of compensation. Present respondents are her sons.

27. Court of District and Sessions Judge which had decided Land Acquisition Case No. 19/89 had framed following three issues and answered the same as mentioned below :

1. Whether the applicants prove that the suit plot which is a part of survey No. 106 belong to him : No.

2. Whether the respondent No. 1 proves that the suit plot which is a part of Survey No. 106 belong to her : No.

3. Whether the respondent No. 2 proves that she is owner of the same survey No. 106 to whom the compensation awarded by the L.A.O. is to be paid Yes.

This Court, while deciding first appeal, had heard arguments of respective Counsel in the light of these issues only. At the outset one has to note that name of original respondent No. 2 Manoramabai was appearing as owner in possession of survey No. 106 in survey records since 1975-76. The Land Acquisition Office had acted on the basis of these revenue entries and issued notice to her. The award was ultimately declared in 1986 and the present reference was then sought by the appellants in 1988. Manoramabai did not seek any reference under Section 18 of the Land Acquisition Act for enhancement of compensation amount and reference was sought by present appellants as also by respondent No. 1 Saibai Dubai. Respondent No. 1 had filed a civil suit also independently against Manoramabai in relation to very same property. Learned District Judge dismissed the reference of Saibai Dubaxi as also her civil suit against her and thereafter respondent No. 1 did not challenge that order. The contention of Advocate Kakodkar that two letters through which original respondent No. 2 sought compensation had not been produced and proved, needs to be evaluated in this background. The land was standing in the name of Manoramabai. The land acquisition proceedings were in her name. Final award also showed her name as owner entitled to compensation. She did not approach Court for enhancement and non-production or non-proving of these two letters for claiming compensation has got absolutely no relevance in so far as present controversy is concerned. The appellants have to establish that suit property i.e. acquired property belonged to them and it never belonged to Manoramabai.

28. The appellants claimed Zaidev who expired in 1956 to be the real owner and pointed out title to them in inventory proceedings, while respondent No. 2 Manoramabai has pointed out title through inventory proceedings taken way back in 1905. Parties have contended that suit property was having some name. According to the appellants, the said name was Culan, while according to the respondents it is Pondornichem Mol However, name as such cannot be very significant. Perusal of evidence of appellant Sanjay Rane shows that he agreed and accepted that survey No. 106 i.e. acquired land corresponds with old cadastral survey No. 1. He also agreed with boundaries of survey No. 106 and particularly stated that on southern side of survey No. 106 there is a public road from Bicholim to Sanquelim. Thus, it has been established on record that survey No. 106 was having old cadastral survey No. 1.

29. Exhibit RW.1/C is the proved document of said old cadastral survey No. 1 which records name of Satroji Zoiba Rane as its owner and its local name as Pundornim. This document has been exhibited during evidence of RW.1 Fatehsingh by consent. There is some dispute between parties in relation to this consent and it is to be noted that while recording evidence of Fatehsingh on 24.8.1989, District Judge, Panaji has exhibited map at Exhibit RW.1/B by consent and then the present map also by consent. This deposition has been recorded in LAC No. 1/88 which was filed by respondent No. 1 Saibai and, therefore, Advocate Kakodkar is right when he states that present appellants were not parties to said reference. But, then perusal of the order sheet maintained in reference proceedings in LAC No. .19/89, particularly order sheet dated 7.6.1991 shows that parties on that day agreed that examination-in-chief and cross of RW.1 Fatehsingh in LAC 1/88 would be taken on record in LAC No. 19/89 and appellant Sanjay Rane (Practising Advocate) should cross examine said witness and Advocate M.B. DCosta who appeared for respondent No. 1 Saibai Dubaxi would not cross examine any further. Accordingly, the said deposition of Shri Fatehsingh Rane along with his cross examination by respondent No. 1 became part of LAC 19/89 and the appellants cross examined Fateh singh thereafter on 16.9.1991. It is to be noted that if the appellants wanted to challenge the documents exhibited by consent in LAC 1/88, they could have raised that objection on 7.6.91 and thereafter on 16.9.1991. But, no such objection was raised and those documents, as exhibited, were admitted or accepted on record of their own case by the appellants. It is to be noticed that ground of absence of consent could have been raised before the District Judge at any time before the learned Judge delivered the final Judgment on 12.6.1995. However, no such ground was raised before that Court and there is no such contention raised even before the learned Single Judge. In these circumstances, it is difficult for us to accept that said document Exhibit RW.1/C has not been properly proved or exhibited.

30. Challenge to said document is basically on account of the fact that in the copy of very same document produced by the appellants as Exhibit X, the legend mentioning name of owner or local name of field does not appear. Perusal of evidence of Sanjay Rane recorded in LAC 19/89 shows that he deposed that he had applied for certified copy of old cadastral survey as well as new survey plan of the property Culan and then he produced the old cadastral plan as also the new survey plan of the property by name Kulan or Kulana Vaili mentioning that it was originally known as Languem Kulan along with its blue print. Blue print was then taken on record and marked as Exhibit-X for identification. Thus, in view of this copy on record, and evidence, it was open to the appellants to cross examine respondent No. 1 and even to put their suggestion about interpolation with said legend to him. The document produced at Exhibit-X by the appellants does not mention name of field as either Kulan or Kulana Vaili or Languem Kulan. Having lost opportunity, we find that such an argument cannot be advanced for the first and that that too in LPA.

31. The consideration above shows that identity of acquired property as old cadastral survey No. 1 or new survey No. 106 has been established on record. It is also apparent that till filing reference application in 1986, the present appellants never raised any objection to the name of respondent No. 2 Manoramabai appearing in the revenue records as its owner and person in possession.

32. Exhibit RW.1/D is the certificate of cognizance and chart of partitioning issued in favour of head of family Sotroji Zoiba Ranes and other interested parties including Ahilyabai etc. Ahilyabai was the wife of Satroji and her name has been spelt as Ailea Bay, while the name of his other wife Rukminibai has been spelt as Rocuminim Bay in this document. However, both the learned Senior Advocates accept that these are the names of Ahilyabai and Rukminibai respectively. This Certificate issued by Court of the Civil Judge, Bicholim (Judicial Division) is dated 5.3.1906 and it appears that proceedings commenced on 30.7.1905. The head of family, namely Satroji appeared and partition proceedings had become essential because of demise of his wife Rukminibai. This certificate mentions that Ahilyabai was his first wife. The property Pondornichem Mol is mentioned as Pondornichem Mollo in this certificate at item No. 21 and its boundaries are also mentioned therein. It is bonded on south by public road. Schedule of sub-division accompanied therewith shows that Pondornichem Mol went to heirs of Rukminibai and not to heirs of Ahilyabai. The present appellants are lineal descendants of Satroji from Ahilyabai, while respondents are lineal descendants of Satroji from Rukminibai. This partition in inventory proceedings, therefore, clearly shows that the appellants did not have and could not have any interest in Pondornichem Mol after 1905.

33. This position is also affirmed by Certificate issued by Taluka Revenue Office, Bicholim at Exhibit RW.1/E which describes the property under No. 476 as Pondornichem-moll with boundaries which matches with boundaries described in Exhibit RW.1/D. No doubt, this document mentions area of land only to be 10,000 sq. metres with collective yield of Rs. 23/-, but then, it records name of son of Rukminibai, Rauji Satroji Rane as its owner.

34. The appellants have contended that the acquired property is known as Culan and it was earlier known as Languem Culan which was then sub-divided into Baillaim Culan and Culan. They have relied upon the notice of auction and auction proceedings to substantiate title of their predecessor Zaidev. In this notice of auction Exhibit A1/B, the property Languem Culon has been mentioned as Zanoguem Culono. But then in subsequent certificate it has been mentioned as Languem Culon. It is apparent that notice of auction cannot be construed as document of title at all because it only notifies the auction and at that stage purchaser is not in picture. The other document is proceedings of auction at Exhibit RW.1/G. This document is title of auction issued in favour of Rauji Satrojirao Rane by the District Court of Bicholim (Judicial) and it is dated 3.2.1947. Thus, this document is not in the name of Zaidev. Recitals therein show that 2/3rd right in the following three properties, namely, Cuddopo bata , Borchi data boredo and Lanoguem Cullona, situated at Carapur, formed subject-matter of auction and these properties above mentioned as registered in the Land Registration Office of said Judicial Division under Nos. 5180 at folio 10 of Book No. B 14 and 5181 at folio B-14. It is also mentioned that share of these properties was entered in the Land Registration Office under No. 5170 at folio 126 at Book F-8. These properties were seized on 17.2.1938 and 2/3rd of aforementioned properties No. 5180 and 5181 were purchased in auction by said Rauji Rane. Inventory Proceedings No. 26/1957 taken up after death of Zaidev in 1956 need to be looked into in this background. It is to be noticed that Rauji Satroji Rane was the Administrator for said proceedings and he had placed the properties of Zaidev before the Court for conducting those proceedings. The appellants have placed reliance upon these inventory proceedings at Exhibit A.W.1/C. Items No. 73 and 74 of Schedule of Partition are relied upon to show that these properties devolved upon the appellants. It cannot be disputed that 1/3rd share of item Nos. 73 and 74 devolved upon Zaiba Satroji Rane and other 1/3rd upon Ganpatrao Gujar as mentioned in it. But then item No. 73 is in relation to Bailem Culon while item No. 74 is in related to Culona. But the contention of the appellants is that these two properties are formed after sub-dividing Languem Culon. However, there is no document to substantiate such sub-division. Similarly description of both these items show that these properties have not been described in the Land Registration Office. Certificate of auction clearly mentions that properties of Shri Morjkar auctioned thereby were already registered in the Land Registration Office vide Nos. 5180 an 5181 mentioned above. It is, therefore, obvious that items No. 73 and 74 do not form part of property registered with Land Registration Office and did not form subject-matter of auction in which Rauji purchased the property. Item No. 73 and 74 are properties of deceased Zaidev which have been partitioned in these inventory proceedings. Thus, identity of these properties with the property purchased by Rauji in auction has not been established. Both the Courts have, after appreciating this position, held that the appellants have failed to prove their title to the acquired property. We do not find anything wrong with the said finding.

35. Learned Senior Advocates have also addressed this Court on the plea of benami raised in the matter. According to Advocate Kakodkar, as the Judgment in case of Mithilesh Kumari v. Prem Behari Khare reported at : [1989]177ITR97(SC) , is specifically overruled in Sankara Hali & Sankara Institute v. Kishori Lal Goenka and Anr. reported at : (1996)7SCC55 , the view taken by Courts below is not proper and Act of 1988 cannot apply retrospectively. According to Advocate Dessai, as the plea of benami has been raised after 1988, the prohibition enacted by 1988 Act is squarely applicable. From narration of facts stated above, it is more than apparent that the case of appellants was that in Court auction conducted in 1940 Zaidev purchased the properties benami in the name of Rauji Rane. After death of Zaidev when inventory proceedings were taken up Rauji was appointed as an Administrator and Rauji declared the properties purchased by him to be the properties of Zaidev and thereafter, in inventory proceedings those properties were partitioned as properties of Zaidev. We have already considered the correctness or otherwise of the story as above in the light of evidence which has come on record. However, the story itself shows that benami transaction, if any, had ceased to be in existence in 1957 only as per the appellant when according to them Rauji permitted those properties to be distributed as properties of Zaidev. Accordingly, the appellants claimed that they became owners thereafter. It is, therefore, obvious that when 1988 Act came into force, no benami transaction was open for any scrutiny and as such, there is no question of any bar of said 1988 Act being pressed into service in the present matter. Perusal of Article 215 of the Portuguese Civil Code which prescribes the effect of partition states that the partition of the properties legally made in respect of which there had not been any objection, confers on the co-heirs exclusive ownership of the properties partitioned among them. The appellants have also relied upon this provision to urge that after partition in inventory proceedings they have become absolute owners. It is, therefore, obvious that there was and there is no effort by the appellants after 1988 Act came into force to obtain any benefit out of said benami transaction. The conclusion in this respect reached by the trial Court, as also by the learned Single Judge of this Court holding that such plea is barred after coming into force 1988 Act is, therefore, misconceived. Moreover, here appellants sought reference on 26.5.1987 and in : (1995)124CTR(SC)311 R. Rajagopal v. Padmini, Hon'ble Apex Court has held that 1988 Act is not retrospective.

36. As the appellants have failed to establish their title to the acquired property or its identify as culona. The discrepancy about area of old cadastral survey No. 1 or survey No. 106 appearing in revenue records is not very relevant. Witness No. 2 examined by the appellants has himself accepted that the area of survey No. 106 is much more than 100 hectares. It is not the case of appellants that Government has taken possession of the acquired property from them. In view of this, discrepancy in area cannot assist the appellants in their cause in any way. It is settled law that boundaries have to prevail and the boundaries of cadastral survey No. 1 have already been mentioned by us above while considering inventory proceedings undertaken in 1905 and also certificate of matriz.

37. A perusal of order sheet also shows that the trialCourt had fixed the matter for filing of written statement on a number of occasions, but neither of the parties chose to file any written statement or statement of claim. Parties preferred to adduce evidence without any pleadings and also after considering the examination-in-chief, proceeded to cross examine the other side willingly, without any protest. No grievance about any prejudice for absence of such pleadings was made by the parties before the trial Court or then even before the learned Single Judge of this Court. Having thus willingly participated in the trial, we cannot permit a losing party to turn around and contend that the pleadings ought to have been insisted upon by the trial Court. We have inquired from learned Senior Advocate Shri Kakodkar about prejudice, if any caused, to the appellants in the matter and learned Senior Advocate was not in a position to point out any such prejudice, except for contending that the party was taken by surprise. When parties proceeded for trial without any pleadings, it is apparent that they have taken all risks into consideration. The theory of division of Languem Culan into Bailem Culan and Culan is also not pleaded anywhere by the present appellants. Perusal of Judgment Union of India v. Mrs. Maria Julia Viegas reported at 1990(2) G L.T. 225 relied upon by him states that the proceedings under Section 18 are restricted to and governed by the terms of reference and being special proceedings do not constitute a suit. In paragraph 12, after considering the judgments delivered by Allahabad High Court and Patna High Court, it is again noticed that jurisdiction of District Court in reference is restricted to terms of reference and at the end of para 12, the Division Bench has concluded that filing of written statement and replies by interested parties and by Government are not justified in law and have no legal existence in proceedings under the Land Acquisition Act. The question was considered in the background of contention that after deletion of restriction in Section 25, there was no bar for Court to grant any compensation higher than the one awarded by the Collector. The Division Bench found that amended Section 25 put fetters on the Courts awarding any sum to interested person in excess of what has been awarded by the Collector and also without any reference to claim under Section 9(2) of the Act. The Division Bench concluded that in case the claimant puts a claim in writing to a definite and specific amount of compensation, Section 53 of the Act comes into operation and as such, procedure laid down in the Civil Procedure Code has to be applied mutatis mutandis to the proceedings before the reference Court. Therefore, subject to provisions of Order 7, Rule 7 CPC, the reference Court cannot grant relief to a party in excess of what has been specifically prayed for by the said party. The subsequent judgment in Jacinto Minguel De Quadros Barretto and Ors. v. Haridas Maruti Kamat and Anr. reported at : (2005)107BOMLR879 , is again a Division Bench Judgment delivered at Goa only and there the contention raised was that the respondents were not bound by written statement filed as land acquisition proceedings did not enjoin respondents to file written statement to prove their claim for compensation. The Division Bench has found that nature of proceedings has always been understood is that they are in the nature of interpleaders suit and proceedings being of civil nature, parties certainly are required to plead their case and lead evidence in support of the same. Ordinary rule of pleadings that no amount of evidence can be looked into in support of a plea not taken therefore needs to be followed in such cases also. It is thus obvious that subsequent Division Bench has found that efforts of respondents before it to ignore own written statement filed in land acquisition proceedings, was without any merit. In the present circumstances, as we have already held that both the parties willingly proceeded without filing any pleadings and they have taken calculated risk of obtaining a decision in their favour. No reason has been putforth for not filing written statement or pleadings and it is not the case of the appellants that reasonable opportunity for said purpose was not made available to them. No such grievance was made before the learned Single Judge also. We, therefore, do not find any merit in this contention at this belated stage.

38. It is also important to note that appellant No. 1 Sanjay Rane has stated in his evidence that Culan and Baillem Culan are divided by Sanquelim-Bicholim road and Baillem Culan is on south of Culan. However, the admission that survey No. 106 was earlier old cadastral survey No. 1 and Sanquelim-Bicholim road is on its southern side clearly militates with this version and in any case names of survey No. 106 are, therefore, not very relevant. In fact a hypothetical question was put to Surveyor Prezeres Gonsalves examined as their witness by the appellants and he has stated that if the present road which is also shown in old survey plan is considered as northern boundary of attached property Languem Culan or Borchi datt or survey No. 1 or any part thereof or new survey number 106 or any part thereof would form part of said property Languem Culan and Borchem Data. He accepted that, in document of attachment of said properties one of the boundaries was mentioned as a road from Sanquelim to Bicholim and further stated that according to him it was northern boundary of property Languem Culan. The entitlement of the appellants needs to be examined in this background. The objections to evidence of Fatehsing Rane raised by the appellants on the ground that he was not staying in Goa or was lastly residing in Bombay and was not aware of the actual situation on spot are, therefore, misconceived. We find that both the Courts have elaborately considered the evidence on record and findings arrived at by them cannot be labelled either as erroneous or perverse.

39. This brings us to the question of availability of letters patent jurisdiction to Goa Bench of Bombay High Court. There is no dispute that in 1544, the highest Court established in Goa, then a Portuguese Colony, was Tribunal de Relacao. On 20.12.1961 the Portuguese rule in Goa came to an end and Goa became an Union territory on 5.3.1962. In 1962, an Ordinance was promulgated and it continued all Portuguese laws then prevailing even after liberation. This ordinance became an Act in 1962 vide Goa, Daman and Diu (Administration) Act, 1962. This Act when enacted, contained Section 7 which made provision for extension of jurisdiction of Bombay High Court to Goa from the date Central Government was empowered to specify by notification in Official Gazette. It is also admitted position that such date was never specified and by Act 16 of 1964 this Section 7 came to be deleted. As per Section 1 of this 1962 Act it was deemed to have come into force from 5.3.1962 and all laws in force immediately before appointed day i.e. 20.12.1961 in Goa were continued to be in force till amended or repealed by competent legislation or other competent authority by virtue of Section 5 of this Act. On 16.5.1963, Goa, Daman and Diu (Judicial Commissioners Court) Regulation, 1963 was promulgated and it was brought into force from 16.12.1963. It is to be remembered that Section 7 of 1962 Act also came to be deleted from 16.12.1963. Section 3 of this 1963 Regulation establishes the Court of Judicial Commissioner and it also enabled appointment Additional Judicial Commissioners. By Section 8, the Court of Judicial Commissioner was declared to be the highest civil and criminal court of appeal and revision in Goa, Daman and Diu and by Section 9, subordinate Courts could make reference to such Court of Judicial Commissioner subject to conditions and limitation to be prescribed by rules made by Judicial Commissioner. Section 11 gave powers of superintendence and control of subordinate courts and tribunals to the Judicial Commissioner. Section 14 also empowered Judicial Commissioner to admit proper persons as Advocates in any Court in Goa. Section 16 provides for continuation of Courts functioning immediately before commencement of 1963 Regulation as Courts subordinate to Judicial Commissioner and Section 22 abolished Tribunal de Relacao. It is, thus, obvious that provisions of Section 7 of 1962 Act about extension of jurisdiction of Bombay High Court to Goa did not become operative at all. On 16.5.1964, Goa, Daman and Diu Commissioners Court (Declaration as High Court) Act, 1964 was brought into force and as per Sub-section (1), this Act was deemed to have come into force on the date of commencement of Goa, Daman and Diu (Judicial Commissioners Court) Regulation, 1963 i.e. with effect from 16.12.1963. Statement of Objects and Reasons of this 1964 Act mentions that the Court of Judicial Commissioner had been constituted for the Union territory of Goa, Daman and Diu. It was the highest Court of appeal which replaced the Tribunal de Relacao. Article 241(1) of the Constitution of India provides that Parliament may by law declare any Court in an Union territory to be a High Court for all or any of the purposes of the Constitution and in the absence of declaration thereunder, the Court of Judicial Commissioner would not be competent to exercise the powers of High Court and appeal against adjudication by it would not be maintainable before the Supreme Court. Therefore, to declare Court of Judicial Commissioner to be High Court and to apply thereto provisions of Chapter V of Part VI of the Constitution, the 1964 Act was enacted. Section 3 of the said Act declares Court of Judicial Commissioner as High Court for the purpose of Articles 132, 133 and 134. Section 6 applies provisions of Chapter V of Part VI of Constitution to the Court of Judicial Commissioner with certain modifications and Section 7 enables any person aggrieved by any judgment, decree, order or sentence of the Tribunal de Relacao to approach the Honble Apex Court. Section 8 of this Act repealed Section 7 of Goa, Daman and Diu (Administration) Act, 1962. It is, therefore, clear that after abolition of Tribunal de Relacao, Court of Judicial Commissioner started functioning as High Court for the Union territory of Goa, Daman and Diu. There was no remedy of any intracourt appeal then.

40. In this background, The High Court of Bombay (Extension of Jurisdiction to Goa, Daman and Diu) Act, 1981 came into force from 30.10.1982 and from the said date, a permanent bench of Bombay High Court came to be established at Panaji, Goa. Section 3 of the said Act extends jurisdiction of Bombay High Court to Union territory of Goa, Daman and Diu, while Section 4 mentions that on and from the appointed day, all jurisdiction, powers and authority as, under the law, in force in respect of said territories immediately before the appointed day exercisable by Court of Judicial Commissioner shall be available to Bombay High Court. Said Section 3 and Section 4 need to be reproduced because according to Advocate Dessai provisions of Section 4 lay down the scope of jurisdiction of High Court at Goa. Sections 3 and 4 read thus :

3. Extension of jurisdiction of Bombay High Court to Goa, Daman and Diu. (1) On and from the appointed day, the jurisdiction of the High Court at Bombay shall extend to the Union territory of Goa, Daman and Diu.

(2) On and from the appointed day, the Court of the Judicial Commissioner shall cease to function and is hereby abolished :

Provided that nothing in this Sub-section shall prejudice or affect the continued operations of any notice served, injunction issued, direction given or proceedings taken before the appointed day by the Court of Judicial Commissioner, abolished by this Sub-section, under the powers then conferred upon that Court. 4. Jurisdiction of Bombay High Court. On and from the appointed day, the High Court at Bombay shall have, in respect of the territories included in the Union territory of Goa, Daman and Diu, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of the said territories by the Court of the Judicial Commissioner.

Section 9 of this Act provides for establishment of permanent bench of Bombay High Court at Panaji and it is because of the contention of Advocate Dessai about jurisdiction conferred on High Court by Section 4 that the issue of maintainability of LPA arises. Simply stated, according to him, Section 3 has the effect of extending only territorial jurisdiction of Bombay High Court, while Section 4 confers upon it the actual powers. In order to support this contention, he has relied upon Judgment in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda (supra). However, we find it convenient to refer to this Judgment little later.

41. Further relevant developments show that Goa attained Statehood on 30th May, 1987 and Goa, Daman and Diu Reorganisation Act, 1987 came into force from that day. Part IV of this 1987 Act deals with High Court. Section 20 thereof makes provision for common High Court for Maharashtra, Goa, Dadra and Nagar Haveli, Daman and Diu. Said provision reads as under :

20 Common High Court for Maharashtra, Goa, Dadra and Nagar Haveli, Daman and Diu.

(1) On and from the appointed day.

(a) there shall be a common High Court of the State of Maharashtra and Goa, and for the Union territories of Dadra and Nagar Haveli, and Daman and Diu, to be called the High Court of Bombay (hereinafter referred to as the common High Court);

(b) the Judges of the High Court of Bombay (hereinafter referred to as the existing High Court), holding office immediately before that day shall, unless they have elected otherwise become, on that day, the Judges of the common High Court.

(2) The expenditure in respect of the salaries and allowances of the Judges of the common High Court shall be allocated amongst the States of Maharashtra and Goa and the Union in such proportion as the President may, by order, determine.

(3) On and from the appointed day, the common High Court shall have, in respect of the territories comprised in the States of Maharashtra and Goa and the Union territories of Dadra and Nagar Haveli and Daman and Diu, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of those territories by the High Court of Bombay.

Section 22 stipulates that practice and procedure in the existing High Court with the necessary modifications, apply in relation to the common High Court. Section 25 which deals with powers of Judges and again states that law in force in that respect in existing High Court with necessary modifications shall apply in relation to the common High Court. Section 30 which contains saving provision states that nothing in Part IV shall affect the application to the common High Court of any provisions of the Constitution, and Part IV has effect subject to any provision that may be made on or after the appointed day with respect to that High Court by any Legislature or other authority having power to make such provision. It is noteworthy that Advocate Shri Dessai is not interpreting any provision of this 1987 Act as limiting jurisdiction of Goa Bench to entertain LPA. Said limitation according to him flows from the above mentioned 1981 Act and 1987 Act does not in any way disturb it.

42. Perusal of Section 20 of 1987 Act clearly shows that from the appointed day i.e. 30th May, 1987 a common High Court for Maharashtra and Goa to be called the High Court of Bombay has been brought into existence. Judges of High Court of Bombay then existing having been stated to be the Judges of the common High Court. Sub-section (3) mentions that in respect of territories comprised in the States of Maharashtra and Goa and the Union territories Dadra and Nagar Haveli and Daman and Diu, the common High Court has all such jurisdiction, powers and authority as under law in force immediately before the appointed day were exercisable in respect of those territories by the High Court of Bombay. By Clause (b) of Sub-section (1) that High Court of Bombay existing prior to appointed day has been mentioned as existing High Court. It is, therefore, obvious that all jurisdiction, powers and authority exercisable by Bombay High Court prior to 30th May, 1987 in relation to Goa have been made over to the common High Court by Sub-section (3). These powers, authority and jurisdiction of the High Court are to be found in 1981 Act. Words all such jurisdiction, powers and authority are used in Section 20(3) of 1987 Act and in Section 4 of 1981 Act.

43. Section 3 of 1981 Act extended jurisdiction of Bombay High Court to Union territories of Goa, Daman and Diu and also abolished the Court of Judicial Commissioner. It is not in dispute that the remedy of filing intra court appeal or LPA was till then not available. Section 3, as also Section 4, both use the word jurisdiction. Section 4 states that on or the appointed day, the High Court of Bombay has all such jurisdiction, powers and authority as under the law in force immediately before the appointed day, are exercisable in respect of said territories by the Court of the Judicial Commissioner. The question is, is there any difference in connotation of the word jurisdiction in Section 3 and in Section 4. If, Section 3 has the effect of preserving jurisdiction of Bombay High Court over Maharashtra and extending it to Union territory of Goa, what is the need of Section 4

44. We may here refer to the Judgment of Honble Apex Court P.V. Hemalatha v. Kattamkandi Puthiya Maliackal, Saheeda, and Anr. (supra) where provisions of Section 52 of States Reorganisation Act, 1956 fell for consideration. The question was whether said section saved applicability of Letters Patent of Madras High Court to such territories. Honble Apex Court has reproduced said Section 52 in paragraph 14 and arguments of the learned Counsel appearing for the original petitioner are mentioned in paragraph 15. It was contended before Honble Apex Court that original, appellate and other jurisdiction of the erstwhile High Court for the territories which formed part of new State after reorganisation of States was saved by Section 52. The expression other jurisdiction used in Section 52 preceded by words original and appellate was pressed into service to show that it had wide import and would, therefore, cover within itself Clause 36 of the Letters Patent of the Madras High Court and as said clause so applicable in erstwhile Malabar State which later on became part of new State of Kerala, procedure prescribed by said Clause 36 needed to be followed. Honble Apex Court has interpreted provisions of Section 52 in the light of other provisions like Section 54 and Section 57. In para 20 it has been concluded that Section 52 extended to the territories of the High Court of the new State, original, appellant and other jurisdiction which was exercisable in respect of that part of the territories by any High Court or Judicial Commissioners Court for an existing State. Section 54 dealing with practice and procedure, Section 57 dealing with powers of Judges and Section 69 dealing with saving are then considered and in paragraph 24 it is observed that conjoint reading of Sections 52, 54 and 57 makes it manifest that subjects practice and procedure and powers of Judges specifically covered by Sections 54 and 57 respectively are treated separately from jurisdiction dealt with in Section 52 of States Reorganisation Act, 1956. The expression Jurisdiction, original or appellate in Section 52 has been, therefore, assigned a restrictive meaning so as not to include within it practice and procedure of the High Court and powers of Judges. Expression other jurisdiction used in Section 52, therefore, has been construed as not including in it the law relating to practice and procedure of the High Court and powers of Judges which are subjects separately dealt with in Sections 54 and 57 of the said 1956 Act. The Judgment, therefore, clearly shows that if this Court is required to interpret provisions of Section 20, read with Section 22, 25 and 30 of Goa, Daman and Diu Reorganisation Act, 1987, the logic therein will be more relevant. But then it is not the argument that letters patent jurisdiction to Goa Bench becomes available because of said Section 20, Sub-section (3). Moreover, said Section 20, Sub-section (3) uses the words all such jurisdiction, powers and authority. The arguments of the appellants before us are that the powers of letters patent appeal flow from Section 3 of 1981 Act. It is to be noted that both Sections 3 and 4 of 1981 Act use the word jurisdiction and this Judgment is helpful to understand its sweep.

45. Though Section 3 uses the word jurisdiction of High Court at Bombay, Section 4 uses the words all such jurisdiction, powers and authority. In this background, when provisions of Section 9 of said 1981 Act are looked into, it contemplates exercise of jurisdiction and powers for the time being vested in that High Court. Said section along with its proviso reads as under :

9. Establishment of a permanent bench of Bombay High Court at Panaji -On and from the appointed day, there shall be established a permanent bench of the High Court at Bombay at Panaji and such Judges of the High Court at Bombay, being not less than two in number, as the Chief Justice of that High Court may, from time to time, nominate, shall sit at Panaji in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the Union Territory of Goa, Daman and Diu: Provided that the Chief Justice of that High Court may, in his direction, order that any case or class of cases arising in such territory shall be heard at Bombay.

The concluding part of main section, therefore, contemplates the exercise of jurisdiction and powers by this bench of Bombay High Court and that jurisdiction and powers are for the time being vested in it by Section 4. Section 9, therefore, refers to Section 4 which uses the words jurisdiction and powers, both. The fact that the High Court was supposed to exercise jurisdiction of the Judicial Commissioner can also be gathered from the words in respect of cases arising in the Union Territory of Goa, Daman and Diu: at the end of substantive part of Section 9. These words, at the end of substantive part, qualify the jurisdiction and powers for the time being vested. It is apparent that it is only Section 4 which has the effect of vesting jurisdiction, powers and authority for the time being. Section 7(3) contemplates transfer of pending proceedings from the Court of the Judicial Commissioner to the Bombay High Court. Its Sub-section (2) stipulates that such transferred proceedings are to be disposed off by the High Court at Bombay as if such proceedings were entertained by that High Court. Similarly, by Sub-section (3) any order made before the appointed day by the Court of Judicial Commissioner is treated for all purposes not only as an order of the Court of Judicial Commissioner, but also as an order of the High Court at Bombay. It is apparent that Section 7 contemplates proceedings pending or decided by the Judicial Commissioner and, those proceedings are, therefore, in discharge of jurisdiction available to the Judicial Commissioner as mentioned in Section 4 of the Act. This section, therefore, gives indication that Section 4 of 1981 Act is the provision which confers powers and authority upon the High Court to exercise jurisdiction in relation to the matters arising in said territories. Word jurisdiction when juxtaposed with words powers and authority in Section 4 signifies different types of jurisdictions like appellate, original, etc., and when it appears in Section 3 it only means power to take cognizance. Scope of said power is prescribed in Section 4 of 1981 Act. Section 3, therefore, though uses the word jurisdiction, only extends territorial jurisdiction of Bombay High Court to Union territories of Goa, Daman and Diu. It is, therefore, clear that the sweep of word jurisdiction and its meaning as used in Section 3 and Section 4 is different. Section 13 of 1981 Act enables the Central Government to make appropriate provisions not inconsistent with 1981 Act for the purposes of removal of difficulties. The Removal of Difficulties Order, 1982, vide its Clause (2) provides for adaptation of rules and forms used by the Court of Judicial Commissioner immediately before the appointed day with suitable modification for proceedings before the Bench of High Court at Bombay established under Section 9 of 1981 Act. Sub-clause (2) states that in the absence of any provision in the said rules on any particular matter, the Bombay High Court Appellate Side Rules, 1960 shall apply to proceedings before the bench. Bombay High Court Appellate Side Rules, 1960 is a procedural law which does not confer any new jurisdiction and, in any case, letters patent jurisdiction on Bombay High Court. This Section 13, read with the Removal of Difficulties Order, 1982, therefore, cannot be stretched to mean that the jurisdiction conferred upon the Bombay High Court by Letters Patent of 1865, as amended, has also been extended to Union territory of Goa, Daman and Diu. If the argument of learned Advocate Kakodkar are accepted, the entire Section 4 is rendered superfluous and such an interpretation and exercise is not permissible in law. We may mention here that Section 20(4) of 1987 Act also uses the words referable to Section 4 of 1981 Act.

46. The other argument in the alternative advanced by learned Senior Advocate now needs to be considered. It is stated that Section 22 of 1987 Act applies existing law before 30th May, 1987 with respect to practice and procedure in the common High Court. On 30th May, 1987 there already was The Maharashtra High Court (Hearing of Writ Petitions, by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 and hence as letters patent appeals were not available in Maharashtra it automatically stopped also in Goa as source of power for that purpose stood extinguished. It is to be noted here that though above referred Maharashtra Act is of the year 1986, it was to come into force from 1.7.1987 and Goa became an independent State with its own State Legislature on 30th May, 1987. Thus, it cannot be said that on 30th May, 1987 the letters patent jurisdiction was not available in State of Maharashtra. It has been also pointed out to us that validity of said enactment has been upheld by the Honble Apex Court in Jamshed N. Guzdar v. State of Maharashtra and Ors. (supra). Perusal of paragraphs 52 and 53 of the said Judgment of the Honble Apex Court shows that both Parliament and State Legislature are competent to legislate with respect to the subject administration of justice which would be wide enough to invest the High Court constituted and recognized by Parliament with the general jurisdiction. It has also been found that Parliament and State Legislature can legislate within their respective spheres so as to invest the High Court with special jurisdiction referable to Entry 46 of List III. The position emerging there from is narrated in para 53 of said Judgment of Honble Apex Court. In paragraph 93 constitutional validity of above referred Maharashtra Act 17 of 1986 has been upheld. This Judgment, therefore, shows that the decision of Maharashtra State Legislature and its enactment to abolish LPAs in Maharashtra will apply and hold good only in so far as area of State of Maharashtra is concerned. Unless decision to abolish LPAs in Goa State is taken by the Goa State Legislature and law to that effect is passed, it cannot be said that jurisdiction of the common High Court to entertain LPAs, if available at Goa, ceases automatically because of Maharashtra enactment. We are, therefore, not in a position to hold that above referred Maharashtra enactment has got the effect of stopping the letters patent appeals and their cognizance in so far as Goa State is concerned.

47. For the reasons recorded above, we hold that the LPA, as filed, is not maintainable. AS we have heard the matter on merits also, we also record that we do not find any merit in it. Accordingly, the LPA is dismissed on both the counts. However, in the circumstances of the case, there shall be no order as to costs.


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