Case No - diu.gov.in

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Case No.80 /2017/"-C Under Section 40 of Goa, Daman & Diu land Revenue , Code, 1968 IN THE COURT OF DEPUTY COLLECTOR, DIU U.T. ADMINISTRATION OF DAMAN & DIU, COLLECTORATE, DIU. The Mamlatdar, Diu. ......... Appellant v/S 1. Smt. Jivibai Rama Bamania, W/d/o. late Rama Soma Bamania, 2. Shri Divyesh Rama Bamania, S/o late Rama Soma Bamania, Both R/o Kevdi, Zolawadi, Diu. ORDER Respondent 1. WHEREAS , government land bearing Survey No. 105/0 admeasuring 16560 sq.mts situated near 66 K.V., Kevdi, Diu had been assigned for Establishment of Model Degree College in Diu District vide Order No. 64-03-2011-LND/2494 dated 18/ 10/2011 and further proposal of Additional Govt. land bearing Survey No. 115/1 admeasuring 6625 sq.mts. for establishment of new Arts and Commerce College had also been assigned to start construction; 2. AND WHEREAS , in the meantime, all the following parties filed a Regular Civil Suit in the Hon. Court of Civil Judge, Senior Division at Diu:- 1 Shri Bawa Karsan V/s RCS No. 01/2013 The Union of India & Others 2 Smt. Jamnaben Mavji Vaza V/s RCS No. 02/2013 The Union of India 8v Others 3 Govind Bawa V/s RCS No. 03/2013 The Union of India 8s Others 4 Smt. Valiben Mavji Vaza V/s RCS No. 04/2013 The Union of India & Others 5 Shri Amrutlal Karsan Bamania V/s RCS No. 05/2013 The Union of India & Others 6 Shri Amrutlal Karsan Bamania V/s RCS No. 06/2013 The Union of India &, Others 7 Shri Prem'i Gila RCS No. 07 / 2013 Page 1 of 26

Transcript of Case No - diu.gov.in

Page 1: Case No - diu.gov.in

Case No.80 /2017/"-CUnder Section 40 of Goa, Daman &

Diu land Revenue , Code, 1968

IN THE COURT OF DEPUTY COLLECTOR, DIUU.T. ADMINISTRATION OF DAMAN & DIU, COLLECTORATE, DIU.

The Mamlatdar, Diu. ......... Appellant

v/S

1. Smt. Jivibai Rama Bamania,W/d/o. late Rama Soma Bamania,

2. Shri Divyesh Rama Bamania,S/o late Rama Soma Bamania,Both R/o Kevdi, Zolawadi, Diu.

ORDER

Respondent

1. WHEREAS , government land bearing Survey No. 105/0

admeasuring 16560 sq.mts situated near 66 K.V., Kevdi, Diu had

been assigned for Establishment of Model Degree College in Diu

District vide Order No. 64-03-2011-LND/2494 dated 18/ 10/2011

and further proposal of Additional Govt. land bearing Survey No.

115/1 admeasuring 6625 sq.mts. for establishment of new Arts

and Commerce College had also been assigned to start

construction;

2. AND WHEREAS , in the meantime, all the following parties

filed a Regular Civil Suit in the Hon. Court of Civil Judge, Senior

Division at Diu:-

1 Shri Bawa KarsanV/s RCS No. 01/2013

The Union of India & Others2 Smt. Jamnaben Mavji Vaza

V/s RCS No. 02/2013The Union of India 8v Others

3 Govind BawaV/s RCS No. 03/2013

The Union of India 8s Others4 Smt. Valiben Mavji Vaza

V/s RCS No. 04/2013The Union of India & Others

5 Shri Amrutlal Karsan BamaniaV/s RCS No. 05/2013

The Union of India & Others

6 Shri Amrutlal Karsan BamaniaV/s RCS No. 06/2013

The Union of India &, Others7 Shri Prem'i Gila RCS No. 07 / 2013

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V/s

The Union of India & Others8 Shri Vashram Mandan

V/s RCS No. 08/2013The Union of India & Others

9 Smt. Valiben Mandan & Ors.V/s RCS No. 09/2013

The Union of India & Others

10 Shri Karsan Mandan & Ors.V/s RCS No. 10/2013

The Union of India & Others11 Shri Karsan Mandan & Ors.

V/s RCS No. 11/2013The Union of India & Others

12 Smt. Jamnaben Mavji Vaza & Ors.V/s RCS No. 12/2013

The Union of India & Others13 Smt. Hemiben Kanti Vaza & Ors.

V/s RCS No. 13/2013The Union of India & Others

14 Shri Lalji Lakhman BamaniaV/s RCS No. 14/2013

The Union of India & Others15 Smt. Panibai Vira Bamania & Ors.

V/s RCS No. 15/2013The Union of India & Others

16 Shri Rama Lakhman Bamania & Ors.V/s RCS No. 16/2013

The Union of India & Others17 Smt. Nandubai Soma Bamania & Ors.

V/s RCS No. 17/2013The Union of India & Others

18 Smt. Manibai Dita Bamania & Ors.V/s RCS No. 18/2013

The Union of India & Others19 Shri Nathu Lakhman Bamania & Ors.

V/s RCS No. 19/2013The Union of India & Gthers

20 Shri Velji Kanji Bamania & Ors.V/s RCS No. 20/2013

The Union of India & Others12 Shri Devji Karsan Bamania & Ors.

V/s RCS No. 21/2013The Union of India & Others

22 Smt. Jivibai Rama Bamania & Ors.V/s RCS No. 22/2013

The Union of India & Others

3. AND WHEREAS , accordingly, this office received Summons for

Settlement of issues dated 19/03/2013 from the Clerk of the Civil

Court, Diu in the above cases for temporary injunction under

Section 94 and Order 39 Rule 1 and 2 of Section 151 of CPC and

claiming the land bearing Survey No. 105/0 and Survey No. 115/1

situated at Kevdi of village Bhucharwada; After due process of law,

on 03rd May, 2016, Hon'ble Civil Judge, Senior Division at Diu has

Sk1) -14A Page 2 of 26

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passed similar Orders in Regular Civil Suits filed by the above

parties as follows:

"This suit coming on this 3rd May, 2016 before Shri Tushar T.

Aglawe, Civil Judge (Senior Division), Diu for final order in

presence of Ld. Counsel Shri Hetal B. Modasia for plaintiffs

and Government Pleader Ld. Counsel Shri T.R. Desai for

defendants.

IT IS ORDERD that -

i. Suit is partly decree.

ii. It is hereby declared that plaintiffs are in settled

possession of suit lands.

iii. Defendants or anybody claiming through them are

hereby prohibited from dispossessing plaintiffs of suit

lands, without due course of law.

iv. Other prayers of plaintiffs are rejected.

v. Parties to bear their own costs."

4. AND WHEREAS , being aggrieved, out of 22 parties total 20

parties has filed Regular Civil Appeals before the Hon'ble District

Judge at Diu under Section 96 of the Code of Civil Procedure, 1908

1 Shri Bawa KarsanV/s R.C.A.No. 10/2016

The Union of India & Others2 Smt. Jamnaben Mavji Vaza

V/s R.C.A.No. 05/2016The Union of India & Others

3 Smt. Valiben Mavji VazaV/ S R.C.A.No. 03/2016

The Union of India & Others4 Shri Amrutlal Karsan Bamania

V/ S R.C.A.No. 11/2016The Union of India & Others

5 Shri Amrutlal Karsan BamaniaV/s R.C.A.No. 17/2016

The Union of India & Others6 Shri Premji Gila

V/s R.C.A.No. 18/2016The Union of India & Others

7 Shri Vashram MandanV/s R.C.A.No. 02/2016

The Union of India & Others

8 Smt. Valiben Mandan & Ors.V/s R.C.A.No. 19/2016

The Union of India & Others

9 Shri Karsan Mandan & Ors.V/s R.C.A.No. 06/2016

The Union of India & Others

10 Shri Karsan Mandan & Ors. R.C.A.No. 07/2016

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FV/s

The Union of India & Others11 Smt. Jamnaben Mavji Vaza & Ors.

V/s R.C.A.No. 20/2016The Union of India & Others

12 Smt. Hemiben Kanti Vaza & Ors.V/s R.C.A.No. 08/2016

The Union of India & Others13 Shri Lalji Lakhman Bamania

V/s R.C.A.No. 16/2016The Union of India & Others

14 Smt. Panibai Vira Bamania & Ors.V/s R.C.A.No. 13/2016

The Union of India & Others15 Shri Rama Lakhman Bamania & Ors.

V/s R.C.A.No. 15/2016The Union of India & Others

16 Smt. Nandubai Soma Bamania & Ors.V/s R.C.A.No. 01/2016

The Union of India & Others17 Smt. Manibai Dita Bamania & Ors.

V/s R.C.A.No. 04/2016The Union of India & Others

18 Shri Velji Kanji Bamania & Ors.V/s R.C.A.No. 14/2016

The Union of India & Others19 Shri Devji Karsan Bamania & Ors.

V/s R.C.A.No. 12/2016The Union of India & Others

20 Smt. Jivibai Rama Bamania & Ors.V/s R.C.A.No. 09/2016

The Union of India & Others

5. AND WHEREAS , in this regard, this office has received letter

dated 30-01-2017 from Shri Thiyukesh R. Desai, Govt. Counsel

of Diu forwarding therewith Order dated 01-12-2016 passed by

the Hon'ble Principal District Judge, Diu as below :-

"Adv. Hiten Modasia for appellant present, DGP Adv. T.R. Desai

for R-1 to 3 present. DGP made statement for an on behalf of

respondent UOI that the Government will not evict the appellants

without due adopting due process of law. DGP agreed and

confirmed the proposition of law as laid down by Hon'ble

Supreme Court of India in the case Gurudwara Sahib V/s Gram

Panchayat village Sirthala (in Civil Appeal No.8224 of 2013

arising out of S.L.P. (Civil) No.23728 of 2012) the in such

proceeding the appeal will be at liberty to take to take defence

and plead that they have become owner of the land by way of

adverse possession of prescription.

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Having regard to the statement made by SPP Adv. Hetal Modasia for

the appellants on instructions of appellant made statement that he

withdraw the appeal. He requested for this Court to grant leave to

the appellants to take defense of adverse possession or prescription

in the proceedings if any initiated by the state as due process of law

for their eviction. The wordings of Hon'ble Apex Court and law on

that point is clear whereas liberty is inherent. So to avoid any

complication or confusion liberty as prayed is granted as appeal is

withdrawn it stands disposed of with no order as to cost."

6. AND WHEREAS , as per the Order passed by the Hon'ble

Principal Civil Judge, Diu which is transcribed in Para 5 above, this

authority started due process of law for the eviction of the above 22

parties under the specific provision of Section 40 of Goa, Daman

and Diu Land Revenue Code, 1968 to recover the possession of the

Govt. land bearing Survey No. 105/0 admeasuring 16560 sq.mts

and Survey No. 115/1 admeasuring 6625 sq.mts. situated near 66

K.V., Kevdi, Diu in the court of the Dy. Collector, Diu who is also

empowered to deal such cases by Notification No. 65-01-2014-

LND/Part file/400 dated 06-05-2016;

7. AND WHEREAS, this office has issued Notice to Smt. Jivibai

Rama Bamania, and Shri Divyesh Rama Bamania both R/o Kevdi,

for personal hearing under Section 40 of Goa, Daman and Diu Land

Revenue Code, 1968;

7A. AND WHEREAS, the area under the possession of the

respondent as per the Para no.2 of the judgment dated 04/05/2016

by Civil Judge (Sr.Dn.), Diu Land, admeasuring 348 sq.mts. which is

part of Survey No. 115/1 is the suit land in question in the current

Suit;

8. AND WHEREAS, the Opponent/Respondent, submitted his/her

preliminary objection as under:-

1) That this Court/authority i.e. Deputy Collector, Diu, has no

jurisdiction or authority or power to initiate this proceeding.

Therefore the Show Cause Notice itself is bad under the law,

null and void and illegal.

2) That the Opponent/ Respondent admittedly are not illegal

trespassers/occupants, and this issue on fact is already

decided by the Hon'ble Civil Court in the Civil suit filed by the

Opponent / Respondent, and the finding on this issue was not

challenged by the Government in the appeal before the Hon'ble District

Court, Diu. Therefore, the Collector has no jurisdiction to initiate

any proceeding against the Opponent / Respondent under S 40

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of Goa, Daman and Diu Land Revenue Code, which is a summary

proceeding, whereas the dispute between the parties hereto is of such

a nature that it cannot be decided by a Summary proceeding, but

requires a normal remedy i.e. by leading evidence.

3) That in the appeal before the Hon'ble District Judge, Diu, the District

Government Pleader had made a statement for and on behalf of the

Respondent UOI that "the Government will not evict the appellants

without adopting due process of law". The DGP further agreed and

confirmed the proposition of law that in such proceeding the

appellant will be at liberty to take defence and plead that they

have become owner of the land by way of adverse possession or

prescription.

4) This statement of the DGP is binding on the Government and now

by initiating a summary proceeding under 5.40, the Government

cannot take away the legal right available to the

Opponent/ Respondent herein to plead that they have become

owner of the land by way of adverse possession or prescription.

5) And the Hon'ble District Judge, Diu has accordingly allowed

withdrawing the appeal with leave to take defence of adverse

possession or prescription in the proceedings if any initiated by

the State as due process of law for their eviction.

6) Therefore, the Show Cause Notice under 5.40 issued by you i.e.

Deputy Collector, Diu is without authority, null and void and

illegal and requires to be set aside.

7) That the Opponent/ Respondent reserves their right to file their

detailed Written Statement/ Objections to the proceedings in due

course, after the materials, appeal memo and documents on

which the proceeding is initiated, are supplied to them.

8) That since the jurisdiction and maintainability of the proceeding it

is challenged herein, a preliminary issue regarding the same

requires be framing first and deciding as mandated under the law,

in the interest of justice.

9. AND WHEREAS , the Opponent/Respondent, has also submitted

an Affidavit in Evidence from Mr. Jentilal Premji, married, age:

about 51 years, Occ.: Mason, Son of Mr. Premji Bamania,

Resident of H.No.157, Ubhi Sheri, Malala, Zolawadi, Diu; take

oath in the name of God and declare as under:

1) That I know the Opponent/Respondents.

2) That I have seen the entire properties bearing Survey Nos.105/0

and 115/1. That these lands bearing Survey Nos.105/0 and

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115/1 are situated at Kevdi- Vanakbara Main Road, Kevdi Diu

and I pass by the said road daily and hence I see the suit lands

everyday and I am personally acquainted with the facts about

possession of these lands.

3) That these lands bearing Survey No.105/0 and Survey No.115/ 1

are in possession of different farmers of village Kevdi since before

my birth and that I have personally seen these farmers of village

Kevdi doing cultivation and taking crops and vegetables from the

said lands since my childhood.

4) That the Opponent/ Respondents are in exclusive possession of

suit land and Applicant/ Government was never in possession of

the suit land.

5) the Opponent/ Respondents are cultivating the suit land and

taking crops and vegetables and all benefits therefrom, and since

my childhood I have seen them and their ancestors in

continuous, uninterrupted, open and peaceful possession of the

suit land and cultivating the same and taking crops and fruits

and all benefits therefrom, as owners thereof, to the knowledge of

everybody including whole of Diu Town and the Government.

Whatever stated hereinabove in Para 1 to 5 is true and correct

and it is as per my personal knowledge.

10. AND WHEREAS , the Opponent/Respondent, has also Sint.

Hiruben Rama, Wife of Shri Rama Karsan Bamania, age: about 67

years, Occ.: Household, Daughter of Mr. Bhagwan Rama Bariya,

Resident of Kevdi, Zolawadi, Diu; take oath in the name of God and

declare as under:

1) That I am born at village Dangarwadi of Diu District, which is

adjoining to Kevdi Village at the walking distance of about one

kilometer.

2) That I am married to Rama Karsan Bamania about 47 years ago

and since my marriage, I am residing at Kevdi.

3) That I have seen the entire property which is bearing Survey

No.105/0 and 115/1.

4) That these lands bearing Survey No.105/0 and Survey No.115/ 1

are in possession of different farmers of village Kevdi and I have

seen them in possession since more than 47 years (i.e. since

before I got married and started residing at Kevdi) and that I have

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seen these farmers of village Kevdi doing cultivation and taking

crops and vegetables from the said lands since my marriage till

date. That these lands are situated on Vanakbara-Diu main road

and hence I have to pass by these lands at least once in two days

to visit the market place or Diu town for buying vegetables,

household items, etc.

5) That the Opponent/Respondents are in exclusive possession of

suit land and Applicant/ Government was never in possession of

the suit land.

6) That the Opponent/ Respondents are cultivating the suit land and

taking crops and vegetables and all benefits therefore, and since

my childhood I have seen them and their ancestors in

continuous, uninterrupted, open and peaceful possession of the

suit land and cultivating the same and taking crops and fruits

and all benefits therefrom, as owners thereof, to the knowledge of

everybody including whole of Diu Town and the Government.

Whatever stated hereinabove in Para 1 to 5 is true and correct

and it is as per my personal knowledge.

11. AND WHEREAS , the Opponent/Respondent, has also submitted

an Affidavit in Evidence from Shri Quessou Bica, Son of Shri Bica

Lala, age: about 72 years, Occ: Farmer, Resident of Malala, Zolawadi,

Diu; take oath in the name of God and declare as under:

1) That I am residing at Malala since my birth.

2) That I know the Opponent/Respondent, who are residents of

village Kevdi.

3) That I have personally seen the lands bearing Survey No.105/0

and Survey No.115/ 1 situated at village Kevdi. That I am seeing

the said lands since my childhood and I say that the said lands

have been possessed and cultivated by the farmers of Kevdi since

before liberation of Diu from Portuguese regime and they are still

in possession of these lands and are using the lands as owners to

the knowledge of everybody.

4) That the Opponent/ Respondents are in exclusive possession of

suit land and Applicant/ Government was never in possession of

the suit land.

5) That the Opponent/ Respondents are cultivating the suit land and

taking crops and vegetables and all benefits there from, and since my

childhood I have seen them and their ancestors in continuous,

\^WS y_^,C) Page 8of26

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uninterrupted , open and peaceful possession of the suit land and

cultivating the same and taking crops and fruits and all benefits

there from , as owners thereof, to the knowledge of everybody

including whole of Diu Town and the Government.

Whatever stated hereinabove in Para 1 to 5 is true and correct and

it is as per my personal knowledge.

12. AND WHEREAS , the Opponent/Respondent, has also submitted

an Affidavit in Evidence from Sint. Jivibai Rama Soma Bamania, age :

62 years, Occ.: Farmer, Hindu, Indian National Resident of Kevdi,

Zolawadi, Diu, state on solemn affirmation as under:-

1) That I was served with Notice dated : 11/04/2017 for hearing under S

40 of the Code . I say that this Notice is vague, and without any

details , and therefore the entire proceeding stands vitiated on this

count alone . That no details whatsoever are given in the said Notice

pertaining to which land the same is issued . However, reserving the

right to challenge the Notice itself as being vague, and assuming that

the same is issued for lands bearing S.No.105 / 0 and 115/1 situated

at Kevdi , Diu, I have filed my Written Statement / Reply to Notice.

2) That on receipt of commencement of present proceeding, I had

requested the Applicant of this case , to supply the documents and

materials on the strength of which the present case is filed. In

response thereof, I am supplied with the copy of Appeal Memo only

which was filed by myself before the Hon ' ble District Court, Diu.

3) On verification of the present case file by my Advocate, it is seen that

the Applicant has relied upon and submitted documents totaling

more than 200 pages , but except copy of above referred Appeal Memo

(5 pages), no other documents are supplied to me, inspite of the oral

and written request.

4) That unless I have the information about the materials on which

this proceeding is initiated , it is not possible for me to properly

defend my case.

5) That inspite of the written request by way of application dated:

17/05 /2017 to give sufficient time of atleast 15 days to file the

Written Statement after supplying all the documents /materials on

record of the case file, you i . e. the Deputy Collector , Diu has

rejected the application/ request and you are inclined to decide

this matter in undue haste and in fragrant violation of law of

natural justice and you have fixed this matter in a very short

period on 22/05/2017 only , and you have orally stated that youw-

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are not going to give any time or opportunity to defend to the

Opponent/ Respondent and you have already decided and

declared the Opponent/ Respondent as illegal encroachers and

thus this entire proceeding stands vitiated.

6) I say that you have a bias against me and this predetermined

proceeding initiated against me is illegal and unjust and against

naturel justice. This amounts to denial of justice.

7) I say that this Court/authority i.e. Deputy Collector, Diu, has no

jurisdiction or authority or power to initiate this proceeding.

Therefore the Notice itself is bad under the law, null and void and

illegal.

8) That I rely upon the averments of plaint of the Regular Civil Suit

No.02/2013 filed before the Hon'ble Court of the Civil Judge,

Senior Division, Diu (hereinafter referred to as "the civil suit" for

brevity), and I say that the averments of the plaint of the Civil Suit

are true and correct. The averments made in the plaint of the civil

suit may be considered while hearing and deciding this

proceeding.

9) That admittedly I am in settled possession of the land in question

since Portuguese Regime as held by the Civil Judge in the civil

suit. This issue has attained a finality and binding upon the

parties to this proceeding. Also the fact that I and my

ancestors/ predecessor in title were the cultivating tenants of

Banya Landlord Ramchand Ghela is duly proved in the civil suit,

and this fact is also not challenged by any party and hence this

issue on fact has also attained finality and is binding to the

parties to this proceeding.

10) Thus admittedly, I am in settled possession of the land since

Portuguese Regime, since prior to coming into force the provision of

Land Revenue Code and hence the provision of S 40 of the Code is

not applicable to the facts of the present case, and that no

encroachment is made after the coming into force the provisions of

the Code, and hence this proceeding is bad under the law and not

maintainable.

11) That the finding on other issues by the civil court in civil suit were

assailed by me in appeal before the Hon'ble District Judge, Diu.

12) That in that appeal before the Hon'ble District Judge, Diu, the

District Government Pleader had made a statement for and on behalf

of the Respondent U.O.I. that "the Government will not evict the

appellants without adopting due process of law". The DGP further

agreed and confirmed the proposition of law that in such proceedingI I-

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the appellant will be at liberty to take defence and plead that they

have become owner of the land by way of adverse possession or

prescription.

13) The Hon'bie District Judge, Diu has accordingly allowed to withdraw

the appeal with leave to take defence of adverse possession or

prescription in the proceedings if any initiated by the State as due

process of law for their eviction.

14) That since 20/03/1971, I and my predecessors no more remained a

cultivating tenant of the banya landlord Shri Ramchande Guela or of

the Government or Panchayat, but we continued to hold the suit land

and are in possession of the suit land and are using, occupying and

possessing the suit land and cultivating the same and taking crops

and continued in exclusive possession and asserted the ownership

over the suit land openly, to the knowledge of the everybody in whole

of Diu island including the Govt. offices and Panchayat, and without

any objection or disturbance from anyone of them and we continued

in exclusive undisturbed, peaceful and continuous and open and

hostile possession as of right as an owner from 20/03/ 1971 till

date, i.e. For

more than 30 years period in possession adverse to the title of the

Panchayat or the Government and thus our title has ripen into full

ownership and we have become the owner of the suit land by way of

adverse possession and/or by way of law of prescription under the

Portuguese Civil Code. That I am not in permissive possession of the

land against the Government. That the Government is having

knowledge of the factum of our possession atleast since the original

landlord had submitted the statement showing names of Makati (i.e.

persons having possession and cultivating the land) on dated:

15/01/1972 to the then Assistant Civil Administrator (Mamlatdar),

Diu. These records are produced and brought on record in the civil

suit by the Mamlatdar, Diu and the documents are duly proved,

exhibited and read in evidence in the civil suit.

15) That I rely upon the plaint of the civil court in support of my plea of

having acquired ownership by way of law of adverse possession

and/or by way of law of prescription under the Portuguese Civil Code,

as well as the oral evidences of the Plaintiffs and the documentary

evidence in the said civil suit.

16) In addition to the above, I want to examine the following witnesses:

(1) The Mamlatdar, Diu to produce certified copies of the following

documents:

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i. Notice of the Civil Administrator No.CAD/LND/ 18/71/4584 of

the year 1971

ii. Receipt Dt.15/01/1972 issued by Mamlatdar / Assistant Civil

Administrator, Diu as having received from Ramchand Ghela

documents in connection to aforesaid Notice.

iii. Letter on behalf of late Shri Ramchand Ghela dt, 15/01/1972

addressed to Assistant Civil Administrator, Diu, in response to

aforesaid Notice.

iv. Certificate issued by Civil Registrar cum Sub-Registrar on

07/01/1972 regarding properties in favour of Ramchand

Ghela.

v. Statement showing details viz. names of Makati and account

dt.15/01 / 1972.

(2) Shri Quessou Bica,

(3) Shri Jentilal Premji, and

(4) Smt Hiruben Rama, to prove fact of possession and nature of

possession.

17) That admittedly I have become absolute owner and in exclusive

possession of suit land, this proceeding under SAO of the Land

Revenue Code is premature, illegal and not maintainable.

18) That the statement of the DGP made in Appeal is binding on the

Government and now by initiating a summary proceeding under S.40

of the Code, the Government cannot take away the legal right

available to us to plead that we have become owner of the land by

way of adverse possession or prescription.

19) More-so, the defense of adverse possession or prescription requires

detailed pleading and detailed evidence which is not permissible in a

proceeding of a summary nature hence the initiation of proceeding

under 40 of the Code which is of a summary nature cannot be termed

as due process of law and this action amounts to contempt of court

(contempt of the order of the Hon'ble District Judge, Diu passed in

the Appeal against the civil suit) as by this action you are illegally

taking away our right to take defence of acquiring ownership of the

suit land by adverse possession and/or prescription.

20) That I have become the owner of the said land by law of adverse

possession and/or by law of prescription and therefore the

Government has no right to initiate any proceeding under S 40 of the

Code or under any other law against me in respect of the said lands.

21) That the proceeding is also not maintainable for want of necessary

parties. Notices to all the parties to the civil suit are not served nor

joined in the proceedings and hence the same is not maintainable.X J-

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22) I say that, for the facts and reasons as stated above, the Notice under

S 40 of the Code issued by you i.e. Deputy Collector, Diu and the

proceeding under S.40 of the Code is without authority, null and void

and illegal and the same requires to be set aside, dismissed, revoked

or stopped, in the interest of justice.

Whatever stated hereinabove in Para 1 to 22 is as per my personal

knowledge and it has been read over to me in Gujarati Language and it is

true and correct and as per my say.

13. AND WHEREAS , the Opponent/Respondent, herein submits

his/her Written Statement / Reply to Notice under S.40 of Goa, Daman

and Diu Land Revenue Code (hereinafter referred to as "the Code" for

brevity), as under:-

1) That the Notice dated: 11/04/2017 for hearing under S.40 of the

Code is vague, and without any details, and therefore the entire

proceeding stands vitiated on this count alone. That no details

whatsoever are given in the said Notice pertaining to which land the

same is issued. However, reserving the right to challenge the Notice

itself as being vague, and assuming that the same is issued for lands

bearing S.No.105/0 and 115/1 situated at Kevdi, Diu, the following

points and defense are raised.

2) That on receipt of commencement of present proceeding, the

Opponent/ Respondent requested the Applicant of this case, to supply

him the documents on the strength of which the present case is filed.

In response thereof, the Opponent/ Respondent is supplied with the

copy of Appeal Memo which was filed by Respondent himself before

Hon'ble District Court, Diu.

3) On verification of the present case file, it is seen that the applicant

has relied upon and submitted documents totaling more than 200

pages, but except cop of above referred appeal memo (5 pages), no

other documents are supplied to the Opponent/Respondent, inspite

of the oral and written request, for the reasons best known to you

only.

4) That unless the Opponent/ Respondent knows on what materials you

have initiated this proceedings and what are the material relied upon

by you, it is not possible for him/her to properly defend his/her case.

5) That inspite of the written requests by way of application dated:

17/05/2017 to give sufficient time of atleast 15 days to file the

Written Statement after supplying all the documents/ materials

on record of the case file, you have rejected the

application/ request and you are inclined to decide this matter in1.

Page 14: Case No - diu.gov.in

undue haste and in fragrant violation of law of natural justice

and you have fixed this matter in a very short period on

22/05/2017 only, and you have orally stated that you are not

going to give any time or opportunity to defend to the

Opponent/ Respondent and you have already decided and

declared the Opponent/ Respondent as illegal encroachers, and

thus, with protest, the Opponent/ Respondent submits his/her

Written Statement as under.

6) Thus this is a clear case of bias against the

Opponent/ Respondent and this predetermined proceeding is

initiated against the Opponent/ Respondent which is illegal and

unjust and against natural justice.

7) That this Court/authority i.e. Deputy Collector, Diu, has no

jurisdiction or authority or power to initiate this proceeding.

Therefore the Notice itself is bad under the law, null and void and

illegal.

8) That the Opponent/ Respondent relies upon the averments of

plaint of the Regular Civil Suit No.02/2013 filed before the

Hon'ble Court of the Civil Judge, Senior Division, Diu (hereinafter

referred to as "the civil suit" for brevity), and requests to consider

the averments made in the plaint of the civil suit while hearing

and deciding nis proceeding.

9) That admittedly the Opponent/Respondent are in settled

possession of the land in question since Portuguese Regime as

held by the Civil Judge in the civil suit. This issue has attained

finality and binding upon the parties to this proceeding. Also the

fact that the Opponent/ Respondent and his/her predecessor in

title were the cultivating tenants of Banya Landlord Ramchand

Ghela is duly proved in the civil suit, and this fact is also not

challenged by any party and hence this issue on fact has also

attained finality and is binding to the parties to this proceeding.

10) Thus admittedly, the Opponent/ Respondent are in settled

possession of the land since Portuguese Regime, since prior to

coming into force the provision of Land Revenue Code and hence

the provision of S 40 of the Code is not applicable to the facts of

the present case, and that no encroachment is made after the

coming intoforce the provisions of LRC, and hence this proceeding

is bad under the law and not maintainable.

11) That the finding on other issues by the civil court in civil suit were

assailed by the Opponent/ Respondent In appeal before the

Hon'ble District Judge, Diu.

Page 15: Case No - diu.gov.in

12) That in that appeal before the Hon'ble District Judge, DIU, the

District Government Pleader had made a statement for and on

behalf of the Respondent UOI that "the Government will not evict

the appellants without adopting due process of law". The DGP

further agreed and confirmed the proposition of law that in such

proceeding the appellant will be at liberty to take defence and

plead that they have become owner of the land by way of adverse

possession or prescription.

13) And the Hon'ble District Judge, Diu has accordingly allowed to

withdraw the appeal with leave to take defence of adverse

possession or prescription in the proceedings if any initiated by

the State as due process of law for their eviction.

14) That since 20/03/1971, the Opponent/ Respondent and his/her

predecessors no more remained a cultivating tenant of the banya

landlord Shri Ramchande Guela or of the Government or

Panchayat, but they continued to hold the suit land and are in

possession of the suit land and are using, occupying and

possessing the suit land and cultivating the same and taking

crops and continued in exclusive possession and asserted the

ownership over the suit land openly, to the knowledge of the

everybody in whole of Diu island including the Govt. offices and

Panchayat, and without any objection or disturbance from anyone

of them and the Opponent/ Respondent and their predecessors

continued in exclusive undisturbed, peaceful and continuous and

open and hostile possession as of right as an owner from

20/03/1971 till date, i.e. For more than 30 years period in

possession adverse to the title of the Panchayat or the

Government and thus the title of the Opponent/ Respondent has

ripen into full ownership and he/she has become the owner of the

suit land by way of adverse possession and/or by way of law of

prescription under the Portuguese Civil Code. That the

Opponent/ Respondent is not in permissive possession of the land

against the Government. That the Government is having

knowledge of the factum of possession of the

Opponent/ Respondent atleast since the original landlord had

submitted the statement showing names of Makati (i.e. persons

having possession and cultivating the land) on dated: 15/01/1972

to the then Assistant Civil Administrator (Mamlatdar), Diu. These

records are produced and brought on record in the civil suit by

the Mamlatdar, Diu and the documents are duly proved, exhibited

and read in evidence in the civil suit.

.ts o- 1 C..4'JF

Page 16: Case No - diu.gov.in

15) That the Opponent/ Respondent relies upon the plaint of the civil

court in support of their plea of having acquired ownership by way

of law of adverse possession and/or by way of law of prescription

under the Portuguese Civil Code as well as the oral evidences of

the Plaintiffs witnesses and the documentary evidence in the said

civil suit.

16) In addition to the above, I want to examine the following witnesses:

(1) The Mamlatdar, Diu to produce certified copies of the following

documents:

i. Notice of the Civil Administrator No.CAD/LND/ 18/71/4584 of

the year 1971

ii. Receipt Dt.15/01/1972 issued by Mamlatdar / Assistant Civil

Administrator, Diu as having received from Ramchand Ghela

documents in connection to aforesaid Notice.

iii. Letter on behalf of late Shri Ramchand Ghela dt. 15/01 / 1972

addressed to Assistant Civil Administrator, Diu, in response to

aforesaid Notice.

iv. Certificate issued by Civil Registrar cum Sub-Registrar on

07/01/1972 regarding properties in favour of Ramchand

Ghela.

v. Statement showing details viz. names of Makati and account

dt.15/01/1972.

(1) Shri Quessou Bica,

(2) Shri Jentilal Premji, and

(3) Smt. Hiruben Rama, to prove fact of possession and nature of

possession.

17) That admittedly the Opponent/ Respondent has become absolute

owner and in exclusive possession of suit land, this proceeding

under S.40 of the Land Revenue Code is premature, illegal and

not maintainable.

18) That the statement of the DGP made in Appeal is binding on the

Government and now by initiating a summary proceeding under

S.40 of the Code, the Government cannot take away the legal right

available to the Opponent/ Respondent herein to plead that they

have become owner of the land by way of adverse possession or

prescription.

19) More-so, the defense of adverse possession or prescription

requires detailed pleading and detailed evidence which is not

permissible in a proceeding of a summary nature hence the

initiation of proceeding under 5.40 of the Code which is of a

summary nature cannot be termed as due process of law and this

'N r\. r3r , Page 16 of 26

Page 17: Case No - diu.gov.in

action amounts to contempt of court (contempt of the order of the

Hon'ble District Judge, Diu passed in the Appeal against the civil

suit) as by this action you are illegally taking away the right of the

Opponent/ Respondent to take their defence of acquiring

ownership by adverse possession and/or prescription.

20) That the Opponent/ Respondent have become the owner of the

said land by law of adverse possession and/or by law of

prescription and therefore the Government has no right to initiate

any proceeding under S 40 of the Code or under any other law

against the Opponent/ Respondent in respect of the said lands.

21) That the proceeding is also not maintainable for want of necessary

parties. Notices to all the parties to the civil suit are not served

nor joined in the proceedings and hence the same is not

maintainable.

22) Therefore, the Notice under S 40 of the Code issued by you i.e.

Deputy Collector, Diu and the proceeding under S 40 of the Code

is without authority, null and void and illegal and the same

requires to be set aside, dismissed, revoked or stopped, in the

interest of justice.

14. AND WHEREAS , hearing in the Court of Deputy Collector, Diu was

fixed on 25/04/2017 at 16:00 hours, on 08/05/2017 at 16:00

hours, on 16/05/2017 at 16:00 hours, on 17/05/2017 at 16:00

hours, and on 22/05/2017 at 16:00 hours;

15. AND WHEREAS , the following points raised by the respondent,

through his power of attorney holder, in his written statement dated

22.05.2017 need to be considered while deciding this case:

1. With respect to paragraph number 1, the submission that the

notice dated 11.04.2017 is vague may be upheld for once.

However, the respondent was told about the details of the land

and the reasons of initiating this case during the hearing on

25.04.2017 and the entire file was available to the respondent

during the hearing. Moreover, as recorded in the roznama on

25.04.2017, the respondent's lawyer had himself said that he

would apply for the copy of the relevant documents which he

wanted from the file. He has failed to do so and thus the

submission of the respondent in paragraph 1 is rejected.

II. With respect to the statement in paragraph 2, it is noted that the

proceeding has indeed been initiated on the strength of the

appeal memo of the respondent in the District court, Diu.

Page 18: Case No - diu.gov.in

III. With respect to the statement in paragraph 3, it was stated on

25.04.2017 by the respondent himself that he shall apply for

copies of the relevant documents, but he apparently did not

apply for any documents. Thus, it is the respondent's failure and

Thus this reason is also rejected. Moreover, it is pertinent to state

here that indeed no other document is being relied upon except

the appeal memo of the respondent in the District Court and the

judgement of the Civil Judge, Diu in the case filed by the

respondent against the government with respect to the suit land.

All this material is already available to the respondent.

IV. With respect to the statement in paragraph 4, the respondent

was made aware of the materials relied upon by this authority on

the first day of the hearing itself i.e. 25.04.2017 as recorded in

the roznama. Be that as it may, it is even more pertinent to see

that the respondent has submitted only in the fifth hearing that

he has not been provided the material, despite his own statement

on 25.04.2017 that he shall apply and take all relevant

documents! The respondent had enough opportunity to do the

same on earlier hearings, but the respondent did not. It shows

that this plea is taken just to defeat the aim of justice. Moreover,

as stated in the foregoing paragraph, it is pertinent to state here

that indeed no other document is being relied upon except the

appeal memo of the respondent in the District Court and the

judgment of the Civil Judge, Senior Division, Diu in the case filed

by the respondent against the government with respect to the

suit land. All this material is already available to the respondent.

In view of all these facts, this plea of the respondent stands

rejected.

V. With respect to the statement in paragraph 5 wherein the

respondent has stated that sufficient time has not been given, it

is clear that the respondent had much more than 15 days time

since the beginning of this proceeding, the first date of hearing of

which was 25.04.2017. The statement of the respondent "you

have orally stated that you are not going to give any time or

opportunity to defend to the Opponent/ Respondent and you

have already decided and declared the Opponent/ Respondent

as illegal encroachers" is a baseless statement without any

element of truth to it. Moreover, Honourable Supreme Court

of India has unequivocally in Jagpal Singh & Ors vs State

Of Punjab & On on 28 January, 2011 directed that, "before

parting with this case we give directions to all the StateA .131-

Page 19: Case No - diu.gov.in

Governments in the country that they should prepare

schemes for eviction of illegal/ unauthorized occupants of

Gram Sabha/Gram Panchayat/Poramboke/Shamlat land

and these must be restored to the Gram Sabha/Gram

Panchayat for the common use of villagers of the village.

For this purpose the Chief Secretaries of all State

Governments/ Union Territories in India are directed to do the

needful, taking the help of other senior officers of the

Governments. The said scheme should provide for the speedy

eviction of such illegal occupant , after giving him a show

caase notice and a brief hearing (emphasis added). Long

duration of such illegal occupation or huge expenditure in

making constructions thereon or political connections must

not be treated as a justification for condoning this illegal act

or for regularizing the illegal possession". As is evident from

the above judgment, the present authority is following the

directions of the Hon'ble Supreme Court in such matters.

Thus, adequate time and opportunity has been given to the

respondent to defend their case as per the canon laid out by

the law and higher judiciary.

VI. With respect to the statement in paragraph 6, the statement is

totally baseless and without an iota of truth in it.

VII. With respect to the statement in paragraph 7, the respondent

has raised the question that whether the undersigned is

competent to decide this matter? The answer is an unequivocal

yes. The land is recorded in the name of the government, and the

respondent is an encroacher on the same. Thus, proceeding is as

per law and through these proceedings, the due process of law is

being followed.

VIII. With respect to the statement in paragraph 8, the averments and

the judgment in Regular Civil Suit No. 02/2013 (hereinafter

referred to as the civil suit) form the basis and the key material

in deciding this matter. So, this submission is accepted.

iX. With respect to the statement in paragraph 9, the Civil Judge has

indeed held that the respondent is in settled possession of the

suit land. However, not challenging a fact does not lead to

attainment of finality. The respondent has submitted that the

issue that the respondents were tenants of Banya landlord

Ramchand Ghela has also attained finality on the strength of the

order of the Civil Court. This matter will be dealt with in greater

detail at a later stage of this order.

Page 20: Case No - diu.gov.in

X. With respect to the statement in paragraph 10, the proceedings

under Section 40 of Goa, Daman and Diu Land Revenue Code

are maintainable because the land is recorded as government

and the respondent is in possession of the government land,

which qualifies for action under Section 40 of Goa, Daman and

Diu Land Revenue Code, 196 which has been reproduced as

follows:

"Section 40: Summary eviction of person unauthorisedly

occupying land vesting in Central Government.-

(1) If in the opinion of the Collector any person is unauthorisedly

occupying or wrongfully in possession of any land-

(a) vesting in the Central Government; or

(b) to the use or occupation of which he is not entitled or has

ceased to be entitled by reason of-

(i) any of the provisions of this code, or

(ii) the expiry of the period of lease or termination of the lease for

breach of any of the conditions annexed to the tenure, or

(iii) it being not transferable without the previous permission

under sub-section (2) of section 24 or by virtue of any condition

lawfully annexed to the tenure under the provision of sections

20, 25 or 32, it shall be lawful for the Collector to summarily

evict such person in the manner provided in sub-section (2).

(2) The Collector shall serve a notice on such person requiring

him within such time as may appear reasonable after receipt of

the said notice to vacate the land, and if such notice is not

obeyed, the Collector may remove him from such land.

(3) A person unauthorisedly occupying or wrongfully in

possession of land after he has ceased to be entitled to continue

the use, occupation or possession by virtue of any of the reasons

specified in sub-section (1), shall also be liable at the discretion

of the Collector to pay a penalty not exceeding two times the

assessment or rent for the land for the period of such

unauthorised use or occupation."

XI. With respect to the statement in paragraph 11, the other

findings of the Civil Judge stand as on date as the appeal of the

respondent against the said order of the Civil Judge was

withdrawn by the respondent.

XII. With respect to the statement in paragraph 12, it is clear that the

due process of law as specified in the Goa, Daman and Diu Land

Revenue Code has been followed by conducting these

proceedings. The liberty of taking the defense of adverse

Page 21: Case No - diu.gov.in

possession was always open to the respondent, and he has

indeed taken such a position in the current suit.

XIII. With respect to the statement in paragraph 13, the facts narrated

are indeed true.

XIV. With respect to the statement in paragraph 14, the findings of

the Civil Judge in the civil suit should suffice. He has held in

paragraph 30 of the said judgment and decree, "In a claim for

adverse possession animus possidendi i.e. intention to possess is

an important ingredient. Unless the person possessing the land

has a requisite animus, the period for prescription does not

commence. In the instant case though the plaintiffs have alleged

their possession for more than 30 years, they have not taken any

positive steps or efforts to record their name against and with

respect to suit land in the revenue records. Therefore, apparently

the intention to possess is missing."

Moreover, the Hon'ble Supreme Court of India has held in

R.Hanumaiah & Anr vs Sec .To Govt .Of Kar . Rev.Dept .& ... on

24 February, 2010 : "17. Mere temporary use or occupation

without the animus to claim ownership or mere use at sufferance

will not be sufficient to create any right adverse to

the Government. In order to oust or defeat the title of

the government, a claimant has to establish a clear title which is

superior to or better than the title of the government or establish

perfection of title by adverse possession for a period of more than

thirty years with the knowledge of the government. To

claim adverse possession, the possession of the claimant must be

actual, open and visible, hostile to the owner (and therefore

necessarily with the knowledge of the owner) and continued

during the entire period necessary to create a bar under the law of

limitation. In short, it should be adequate in continuity, publicity

and in extent. Mere vague or doubtful assertions that the

claimant has been in adverse possession will not be

sufficient. Unexplained stray or sporadic entries for a year

or for a few years will not be sufficient and should be

ignored (emphasis added). As noticed above, many a time it is

possible for a private citizen to get his name entered as the

occupant of government land, with the help of

collusive government servants. Only entries based on appropriate

documents like grants, title deeds etc. or based upon actual

verification of physical possession by an authority authorized to

recognize such possession and make appropriate entries can be- IV-

Page 22: Case No - diu.gov.in

used against the government. By its very nature, a claim based

on adverse possession requires clear and categorical pleadings

and evidence, much more so, if it is against the govern ment."

This landmark judgment is amply clear that the claim of adverse

possession against the government of the respondent is not

sustainable because of the lack of animus,

Furthermore, the claim that the respondent has been in

continuous possession is also not backed with any evidence

except a purported statement of a private person dated

15.01.1972. The Hon'ble Supreme Court in supra has

unequivocally stated that such stray entries and documents

cannot be basis for claim of adverse possession against the

government. At the most, this purported document proves the

possession of the respondent on some land on the date the letter

was purportedly written, and nothing more.

XV. With respect to the statement in paragraph 15, the submission of

the respondent are dismissed for reasons mentioned in the

foregoing paragraph, and as per the judgment in S. Lingamaiah

vs State Of A.P . And Ors. on 9 January, 2004, the question

whether on the basis of the averments made in the affidavits and

counter-affidavits it can be said that the petitioner had perfected

his title to the property by reason of adverse possession? The

Court held that "merely on the basis of averments in the affidavit

and counter-affidavits, it cannot be said whether or not the

petitioner had perfected his title to the property by way of adverse

possession." Thus, even this contention cannot be accepted in

support of the respondent's case.

XVI. With respect to the statement in paragraph 16, the request to

examination was turned down because of the following reasons:

a. With respect to Mamlatdar, Diu: the respondent wanted to

"examine" to produce only certified documents of certain

documents. In this regard, it is amply clear that the

responsibility to submit the relevant documents is that of

the Respondent, and the Mamlatdar cannot be summoned

to submit documents by the respondent, especially in the

era of Right To Information Act.

b. The rest three are respondent's witnesses and their

affidavits have been produced by the respondent. However,

since these proceedings are summary in nature, their

examination request by the respondent would have delayed

Page 23: Case No - diu.gov.in

the ends of justice without adding anything more than

what they have stated in their affidavits.

XVII. With respect to the statement in paragraph 17, the respondent's

argument is not accepted for reasons mentioned in paragraph

XIV of this order.

XVIII. With respect to the statement in paragraph 18, ample

opportunity has been given to the respondent to prove his claim

of adverse possession and the respondent's claim of adverse

possession has been examined in detail and found to be wanting.

(see paragraph XIV of this order)

XIX. With respect to the statement in paragraph 19, the proceedings

as per Section 40 are good enough to establish the fact of adverse

possession. The proceedings are as per the provisions of law and

thus the claim of contempt of court is found to be absurd.

XX. With respect to the statement in paragraph 20, the claim ample

opportunity has been given to the respondent to prove his claim

of adverse possession and the respondent's claim of adverse

possession has been examined in detail and found to be wanting.

(see paragraph XIV of this order)

XXI. With respect to the statement in paragraph 21, it was asked to

the respondent during the hearing on 22.05.2017 as to what are

the necessary parties, to which he replied that the necessary

parties are Union of India and UT Administration of Daman and

Diu. However, this is an attempt of the respondent to delay the

ends of justice, and nothing more and hence is dismissed.

XXII. With respect to the statement in paragraph 22, the respondent's

argument is once again rejected and it is held that the

proceedings are as per law.

16. AND WHEREAS, Smt. Jivibai Rama Bamania, the respondent's

widow, has also submitted an affidavit-in-evidence as the respondent

dated 20.05.2017 which is more or less similar to the written statement of

the respondent (through his power of attorney holder), and therefore the

observations and findings remain the same as in the paragraph number

14 of this order;

17. AND WHEREAS, the three affidavits submitted by the respondent in

support of the claim of adverse possession state that the possession is

"continuous, uninterrupted, open and peaceful"... "to the knowledge of

everybody including whole of Diu Town and the Government"; however, it

is obvious that the person can state that a certain point was in the

individual's personal knowledge, but it is inexplicable as to how can the

Page 24: Case No - diu.gov.in

person state in an affidavit that it was in the knowledge of the "whole of

Diu Town" and more surprisingly, "the Government"; furthermore, as per

the judgment in S. Lingamaiah vs State Of A.P. And Ors . on 9 January,

2004, the question whether on the basis of the averments made in the

affidavits and counter-affidavits it can be said that the petitioner had

perfected his title to the property by reason of adverse possession? The

Court held that "merely on the basis of averments in the affidavit and

counter-affidavits, it cannot be said whether or not the petitioner had

perfected his title to the property by way of adverse possession."; and in

the absence of any evidence to back up their claim that it was in the

knowledge of government, the claim of adverse possession is again found

to be devoid of merit;

18. AND WHEREAS , what transpired during the course of hearing on

22.05.2017 is the most important factor proving the hollowness of the

claim of adverse possession on government land, and the important

aspects are reproduced as under:

1. "The respondent's advocate has further stated upon questioning

that the land immediately south of the suit land is confirmed in

the name of the respondent. The suit land thus lies between the

respondent's land and the road. The respondent's land has been

recorded in the name of the respondent as a result of Abolition of

Proprietorship of Lands in Diu Act, 1971. The respondent's

advocate was asked by the presiding officer how the names of

the respondent was entered in the records with respect to the

lands to the south of the suit land, but not the suit land? To

this, he replied that the suit land was low lying land and filled

with water; hence the survey team purportedly did not measure

the suit land.

II. "At this point of the proceedings the advocate for the respondent

said that the presiding officer cannot ask such questions.

III. "And he refused to answer any further questions with regards to

the same. He further stated, and I quote "How can you ask me

such questions?" He even objected to recording of the above

statement in his name!

IV. "He further states that he has no more documents to submit."

V. "Upon being asked to sign the Roaznama, the advocate for the

respondent refused. Therefore, witnesses to the entire

proceedings, Shri Shakil Kasmani, Reporter, resident of Market,

Parsiwada, Diu, and Shri Rajesh Baria, Field Surveyor,

Collectorate, Diu have been requested to sign and attest the fact

A, Page 24 of 26

Page 25: Case No - diu.gov.in

that the above proceedings have been recorded as they

happened/transpired, both in letter and spirit."

VI. "Further, the CCTV footage of the entire proceedings is also

available and shall be copied to a CD and placed on record."

19. AND WHEREAS , from the perusal of the proceeding before this

authority as reproduced in the foregoing paragraph, it is clear that the

respondent has refused to answer the questions of this authority which

would have led to establishment of the truth in this case, which therefore,

in accordance with Section 114 read along with illustration (h) of Indian

Evidence Act, 1872, reproduced as under:

Section 114 in The Indian Evidence Act, 1872

114 Court may presume existence of certain facts. -The Court may

presume the existence of any fact which it thinks likely to have happened,

regard being had to the common course of natural events, human conduct

and public and private business, in their relation to the facts of the

particular case. Illustrations The Court may presume-

(h) That if a man refuses to answer a question which he is not compelled to

answer by law, the answer, if given , would be unfavourable to him;"

Therefore, the following logical presumptions can be drawn by this

authority:

I. The reply that the suit land was low lying and waterlogged

implies that the respondent was not in possession of the suit

land on the date of the survey carried out at the time of

implementation of the Abolition of Proprietorship of Lands in

Diu Act, 1971.

II. Moreover, the fact that land south of the suit land was

recorded in the name of the respondent means that the

respondent was present at the time of the survey on his field

south of the suit land, which proves that the respondent has

falsely stated in his application before the Civil Judge, Senior

Division Diu that the respondent was not present for the

survey (as recorded in paragraph number 3 of the judgment

of the Civil Judge, Senior Division, Diu). A similar finding has

been recorded by the Civil Judge, Senior Division, Diu in

paragraph number 29 of the same judgment.

.o,

O f r \` - A^ ° Page 25 of 26

Page 26: Case No - diu.gov.in

20. AND WHEREAS , keeping the above facts, submissions, reasons and

judgments of higher judiciary in view, it is found that the claim of the

respondent of adverse possession is not substantiated and hence rejected;

21. NOW THEREFORE , keeping the above facts, submissions and reasons

in view, I, Dr. Apurva Sharma , DANICS, Deputy Collector, Diu in exercise of

the powers conferred to me under section 40 of Goa, Daman and Diu,

Land Revenue Code, 1968 do hereby order the eviction of the respondent

& removal of the encroachment from Government Land admeasuring 348

sq.mts. which is part of Survey No. 115/ 1 (as mentioned in Para no. 2 of

the Judgment dated 04/05/2016 by Civil Judge (Sr.Dn.),Diu) situated at

Kewadi , Bhucharwada , Diu and also order that the cost of removal of the

encroachment from the said Government Land and restoration of the

Government Land shall be recovered from the respondent in the form of

arrears of land revenue, and direct the Mamlatdar, Diu to do the needful

immediately.

Given under my hand & seal of this Court on

May, 2017.

day of

(DR. APURVA SHARMA , DANICS)DY. COLLECTOR, DIU

To:-

1. The Mamlatdar, Diu for necessary action.

2. Smt. Jivibai Rama Bamania , and Shri Divyesh Rama Soma

Bamania, Both R / o Kevdi , for compliance.

,-^IC, Diu to upload it on the official website.

4. Guard File.

Copy to:

The Collector, Diu for information, please.

(DR. APURVA SHARMA , DANICS)DY. COLLECTOR, DIU

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