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1. This appeal is directed against Judgment/Award dated 18.3.02 of the learned IInd Additional District Judge, Margao (Reference Court, for short).

2. The dispute between the appellants and the respondents is regarding the receipt of compensation of Rs. 14,33,618/due and payable on account of acquisition of an area of 14,764 sq. metres of Chalta No. 14 of P.T. Sheet No. 225 of Margao City Survey, forming part of lote No. 45 belonging to the Comunidade of Aquem known as 'Rumboleachem Contoleavelem Bhat', which was acquired by virtue of notification issued under Section 4(1) of the Land Acquisition Act, 1894 and published on Gazette dated 26.3.87.

3. The appellants claim the said compensation through their paternal grandmother Maria Paulacina Eugenia de Quadros who was the original encroacher/usurper of the said land of Comunidade, whilst the respondents claim the same through their father Maruti Kamat.

4. The case of the appellants before the Reference Court was that the said property originally belonged to the Comunidade of Aquem and subsequently recognized as belonging to their grandmother, the said Maria Paulacina who had left behind her two sons namely, Jacinto Rozendo Barretto Xavier and Aluisio Caitano Barretto Xavier. The appellants had stated that the said property was shown as lote No. 45 in the plan of the Comunidade of Aquem and had stood registered under No. 8735 in the name of their said grandmother Maria Paulacina and that they were possessing the same since the time of their said grandmother for the last more than 50 years with all necessary requisites and they had acquired the same by way of prescriptive title which they invoked for legal purpose. It was their case that in the southern portion of the said property, there was their old house occupied partially by the family of late Maruti Kamat (chalta No. 15) and by late Raghuvir Raikar (chalta No. 16) who were their mundkars. The appellants stated that the southern portion of their property was not the subject of the said acquisition but it is the northern portion which was the subject of acquisition to which neither the said Kamat family nor the Raikar family had any right or interest and therefore the compensation of the acquired land in the proportion of3/4th be paid to the appellants, who are the legal heirs of Jacinto Rozendo Barretto Xavier and 1/4t h to the legal heirs of Aluisio Caitano Barretto. The appellants had filed separate written statements.

The nature of this proceedings as has always been understood is that they are in the nature of a interpleader's suit. The Full Bench of the Kerala High Court in the case of Thevaril Ranee Sidhan and Anr. v. The Special Tahsildar for Land Acquisition and Ors. relying on an earlier decision of the Division Bench of that Court in Chandan Vydiar v. Chakkuti Vidyar (1969 Kerala L R 691) has stated that the proceedings for apportionment of compensation are in the nature of an interpleader suit and the parties to these proceedings are free to litigate in the ordinary way as in an ordinary suit to determine what their respective rights in respect of the amount of compensation or any portion thereof are. The proceedings being of civil nature, the parties certainly are required to plead their case and lead evidence in support of the same. The ordinary rule of pleadings that no amount of evidence can be looked into in support of a plea not taken ought to be followed in such cases as well. The respondents therefore, after pleading that the land belonged to the Comunidade were not entitled to lead evidence claiming that they were owners of the same. In other words, the respondents were not entitled to deviate from the plea taken. The respondents having filed a written statement duly verified and having claimed prescription as against the Comunidade, were not entitled to depose contrary to the said pleadings and claim a right that they were the owners of the acquired property and that too without producing any documents of title. Any other view would create untold hardships to other parties who would not know as to what case they have to meet.

9. On behalf of the appellants, Shri Usgaonkar, the learned Senior Counsel, has submitted that the learned Reference Court ought to have adjudicated the plea of prescription raised by the appellants against the Comunidade since the Comunidade on one hand had not claimed the said compensation before the Land Acquisition Officer and on the other hand there was a clear acknowledgment by the Comunidade to the possession of the appellants' predecessor, the said Maria Paulacina on the face of the record of "Tombacao" (survey) and the Comunidade having not taken any action by way of a suit to evict the appellants from the encroachment made by them and which was recorded in the relevant documents in November, 1923. Indeed the appellants had produced three documents to support their claim to possession as encroachers or usurpers of the land of the Comunidade. The first was a copy of a plan - Exh.A1 and two other analogous documents namely A2 and A3 being certificates issued by the clerk of the Comunidade. The learned Reference Court came to the conclusion that neither of the parties had proved their title to the property and the only question which was to be determined was to find out as to who was in possession of the acquired land. As far as the said plan Exh.A1 is concerned, the same showed that the appellants' grandmother was in possession of lote No. 45 known as "Rumboleachem Contoleavelem Bhat". The said plan was produced by the appellants with the consent of the respondents. We have no hesitation in our mind to hold Page 885 that the said plan was a public document since it was prepared by the Government surveyors of the Directorate of Land Survey of the Government of Goa, Daman & Diu pursuant to the duties enjoined on them by the provisions of the Code of Comunidade, 1904 particularly Article 227 of the said Code. However, the said plan - Exh.A1 would show that the appellants' said grandmother was in possession of the said lote No. 45 at a time when the said survey of the land of the Comunidade was conducted i.e. In November, 1923. What is recorded in the said plan is in tune with the case pleaded by the appellants that their said grandmother was in possession of the said property for over 50 years. The said plan substantiates the case of the appellants but falsifies the case of the respondents that their grandfather/father was in possession of the said property from the year 1910. Aurora Barretto Xavier/Aw.1 who was examined in support of the case of the appellants, after setting out as to how they had continued to be in possession of the said property through cultivation done through their labourers and by giving the stone quarries existing therein for the extraction of stones, had ultimately admitted that the cultivation had stopped two or three years prior to liberation of Goa. In other words, her evidence was clear to the fact that the possession which the appellants had by way of being encroachers of the land of Comunidade continued till the year 1959 or thereabout and thereafter it is the respondents' father who came in possession of the same. The appellants' witness, the said Aurora Barretto Xavier admitted that the said Maruti Kamat was cultivating paddy in a portion of the said property and other portion he was cultivating vegetables. She also admitted that the said Maruti Kamat obtained a licence from the Municipality in the year 1970 for the construction of a veranda to the house she was occupying and constructed the same. She also admitted that the respondents also constructed a garage next to the said house in order to keep their vehicles and that she had not take any action against the respondents either because the house was extended or the garage was constructed. She also admitted that the Inquiry Officer, City Survey had decided that the respondents were in possession of the said property. It appears that thereafter an appeal filed against the said order of the City Survey Officer has been dismissed by the Director, Settlement and Land Records by his judgment dated 14.2.2001 and it has been stated that a revision is now pending against the same before the Administrative Tribunal. The appellants' witness Shivanand Raikar also stated that besides his family, the family of Maruti Kamat were cultivating the paddy field to the extent of about 25 "kongios" (beds). Here it may be noted that it was not the case of the appellants' witness, the said Aurora Barretto Xavier that the family of Aw.2/Shivanand Raikar had at any time cultivated any portion of the acquired property. The evidence on record clearly showed that after the family of the appellants ceased to be in possession of the acquired property, it is the family of the respondents who have been in possession of the same till the time of its acquisition. The respondents had even produced paddy declarations in support of their cultivation. Shri Usgaonkar, the learned Senior Counsel has tried to point out that the father of the respondents cultivated the paddy field till about the year 1972. However, it is not the case of the appellants that they resumed possession again after the cultivation of the paddy field was stopped by the father of the respondents. Page 886 In fact, it appears that the appellants in the year 1970 or thereabout made an attempt to regain the lost possession by interfering by cutting a branch of "Shivon" tree which was resisted by the said Haridas Kamat resulting in proceedings being initiated under Section 145 of the Code of Criminal Procedure which were dropped at the request of both the parties. Thereafter the appellants have been completely passive and inert. If the respondents' father came in possession of the acquired property after the family of the appellants ceased to be in possession of the same, it is safe to presume and, as other evidence shows, that they continued to be in possession till the acquisition of the said property. In this context, we may refer to the case of Ambika Prasad Thakur and Ors. etc. v. Ram Ekbal Rai (dead) by his legal representatives and Ors. etc.(AIR 1966 S.C. 605) wherein the Supreme Court has stated that the presumption of future continuance is noticed in illustration (d) to Section 114 of the Indian Evidence Act, 1872 and that how far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances. In this case, the learned Reference Court had rightly come to the conclusion after considering the evidence produced that it is the family of the respondents who were in possession of the acquired property at the time of acquisition and as we have indicated hereinabove the said possession came to be exercised by the family of the respondents after the family of the appellants ceased to be in possession of the same in the year 1959 or thereabout. The plea of prescription could not have been adjudicated in favour of the appellants, firstly because the Comunidade against which it was put forward was not a party to the proceedings and secondly because when the said plea was raised, the appellants had already ceased to be in possession of the property.