v/s rcs no. 05/2013

Case No.69 /2017/556Under Section 40 of Goa, Daman g81

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. Shri Karsan Mandan Bamania2. Shri Premji Mandan BamaniaR/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 & Others

3 Govind BawaV/s RCS No. 03/2013

The Union of India & Others4 Smt. Valiben Mavji Vaza


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

The Union of India & Others6 Shri Amrutlal Karsan Bamania


7 Shri Premji GilaV/s RCS No. 07/2013

The Union of India & Others

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8 Shri Vashram MandanV/s RCS No. 08/2013

The Union of India & Others9 Smt. Valiben Mandan & Ors.


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

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


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

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


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

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


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

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


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

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


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

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


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, liori'ble Civil Judge, Senior Division at Diu has

passed similar Orders in Regular Civil Suits filed by the above

parties as follows:

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

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

presence of Ld. Counsel Shri Betal 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 Cheir 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 Suction 96 of the Code of Civil Procedure, 1908

1 Shri Bawa Kcu-sanV/s

The Union of India & ,OthersSmt. Jamnahen Mavji Vaza

R.C.A.No. 10/2016

2

3

4

5

6

7

8

9

10

11

V/sThe Union of India & OthersSmt. Valiben Mavji Vaza

V/sThe Union of India & OthersShri Amrutla I Karsan Bamania

V/sThe Union of India & OthersShri Amrutlal Karsan Bamania

V/sThe Union of India & OthersShri Premji C, i la

V/sThe Union of India & OthersShri Vashran a Mandan

V/sThe Union of India & OthersSmt. Valiben Mandan & Ors.

V/sThe Union of India & OthersShri Karsan Mandan 8r, Ors.

V/sThe Union of India & OthersShri Karsan Mandan 8v Ors.

V/sThe Union of India & OthersSmt. Jamnal_,cn Mavji Vaza 8v Ors.

of 26

R.C.A.No. 05/2016

R.C.A.No. 03/2016

R.C.A.No. 11/2016

R.C.A.No. 17/2016

R.C.A.No. 18/2016

R.C.A.No. 02/2016

R.C.A.No. 19/2016

R.C.A.No. 06/2016

R.C.A.No. 07/2016

R.C.A.No. 20/2016

V/sThe Union of India & Others

12 Smt. Hemiben Kanti Vaza & Ors.V/s

The Union of India & OthersR.C.A.No. 08/2016

13

14

15

16

17

Shri Lalji Lal<hman BamaniaV/s

The Union of India & OthersSmt. Panibai `lira Bamania & Ors.

V/sThe Union of India & OthersShri Rama Laikhman Bamania & Ors.

V/sThe Union of India & OthersSmt. Nandubnti Soma Bamania & Ors.

V/sThe Union of India & OthersSmt. Manibai I ) ita Bamania & Ors.


18

19

20

Shri Velji Kanji Bamania & Ors.V/s

The Union of Itidia & OthersShri Devji Kansan Bamania & Ors.

V/sThe Union of India & OthersSmt. Jivibai Rama Bamania & Ors.


R.C.A.No. 16/2016

R.C.A.No. 13/2016

R.C.A.No. 15/2016

R.C.A.No. 01/2016

R.C.A.No. 04/2016

R.C.A.No. 14/2016

R.C.A.No. 12/2016

R.C.A.No. 09/2016

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

dated 30-01-201 ° fry m 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 Modnsin 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 lie 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 (Cicil) 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.

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

for the appellants o». instructions of appellant made statement

that he withdraw the :appeal. He requested for this Court to grant

i

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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 Shri Karsan

Mandan Bamania and Shri Premji Mandan 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 30/04/2016

by Civil Judge (Sr.Dn.), Diu Land admeasuring 464 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 of Goa,

Daman and Diu Land Revenue Code, which is a summary proceeding,

whereas the dispute between the parties hereto is of such

of 26 °

a nature that it (:ii not be decided by a Summary proceeding, but

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

3) That in the apt eaf b fore the Hon'ble District Judge, Diu, the District

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

Respondent U () l t I <it "the Government will not evict the appellants

without adopting (Inc 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 ow nc r 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 at sutn:nary proceeding under 5.40, the Government

cannot take aiway the legal right available to the

Opponent/ Rep-;pond(,nt herein to plead that they have become

owner of the land In 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 prcrccription in the proceedings if any initiated by

the State as d t ie pi ocess of law for their eviction.

6) Therefore, the Sh(nc Cause Notice under 5.40 issued by you i.e.

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

illegal and req_tin-u to be set aside.

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

detailed Written Siattement/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 heroin, a preliminary issue regarding the same

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

in the interest of justice.

9. AND WHEREAS , 11w Opponent/Respondent, has also submitted

an Affidavit in I- idonce from Mr. Jentilal Premji, married, age:

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

Resident of 1!.No.157, Ubhi Sheri, Malala, Zolawadi, Diu; take

oath in the menu I God and declare as under:

1) That I know tie 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

115/1 are sit.toted at Kevdi- Vanakbara Main Road, Kevdi Diu

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

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everyday and I tut; personally acquainted with the facts about

possession of .hcs(• lands.

3) That these lauds In aring 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 singe 111 childhood.

4) That the Oplpo>nei i/Respondents are in exclusive possession of

suit land and Applicant/Government was never in possession of

the suit land.

5) the Opponent /R.r,pondents are cultivating the suit land and

taking crops rid egetables and all benefits therefrom, and since

my childhood 1 Have seen them and their ancestors in

continuous, u n i n t'rrupted, open and peaceful possession of the

suit land and cii ivating the same and taking crops and fruits

and all benefits t I i refrom, as owners thereof, to the knowledge of

everybody in( I gad i t^ whole of Diu Town and the Government.

Whatever staid hcreinabove in Para 1 to 5 is true and correct

and it is as per m' per,onal knowledge.

10. AND WHER 'E:AS, the Opponent/Respondent, has also Smt.

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

years, Occ.: Hou:.ohold, Daughter of Mr. Bhagwan Rama Bariya,

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

declare as under:

1) That I am bin ;u village Dangarwadi of Diu District, which is

adjoining to t;cvdi Village at the walking distance of about one

kilometer.

2) That I am marric(i to Rama Karsan Bamania about 47 years ago

and since my Ann i;ige, I am residing at Kevdi.

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

No.105/0 and l 1 5 / 1.

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

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

seen them in po^scssion since more than 47 years (i.e. since

before I got mtrri, d and started residing at Kevdi) and that I have

seen these fm root of village Kevdi doing cultivation and taking

crops and ve^nclac)ti s from the said lands since my marriage till

of 26

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

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

to visit the viarkc t place or Diu town for buying vegetables,

household itet^ is, (, tc.

5) That the Opp m c i :t /Respondents are in exclusive possession of

suit land and Applicant/Government was never in possession of

the suit land.

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

taking crops : rid vegetables and all benefits therefore , and since

my childhood I have seen them and their ancestors in

continuous , nine irupted, open and peaceful possession of the

suit land an(' cultivating the same and taking crops and fruits

and all benefit s I I i -crefrom, as owners thereof, to the knowledge of

everybody inc I Lid i r y, whole of Diu Town and the Government.

Whatever statccl I ccreinabove in Para 1 to 5 is true and correct

and it is as per in,, per s(,nal knowledge.

11. AND WHERI AS, the Opponent/Respondent, has also submitted

an Affidavit in Er dcn(c from Shri Quessou Bica, Son of Shri Bica

Lala, age: about '/ ? v i s, Occ: Farmer, Resident of Malala, Zolawadi,

Diu; take oath in t'tc m ime of God and declare as under:

1) That I am res;.lin^,; at Malala since my birth.

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

village Kevdi.

3) That I have ia,:rs,) rally seen the lands bearing Survey No.105/0

and Survey Nr. 1 1 5/ I situated at village Kevdi. That I am seeing

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

have been poi scsscd and cultivated by the farmers of Kevdi since

before liberati m ), Diu from Portuguese regime and they are still

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

the knowledgf_ of (''crybody.

4) That the Opl>.»unt/Respondents are in exclusive possession of

suit land and Ap;alicant/Government was never in possession of

the suit land.

5) That the Of neat /Respondents are cultivating the suit land and

taking crops a A v, .'ctables and all benefits there from, and since my

childhood I l: the peen them and their ancestors in continuous,

uninterrupted OF,, i and peaceful possession of the suit land and

cultivating th sn ' and taking crops and fruits and all benefits

of 26

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

including wh( of 1) i u Town and the Government.

6) Whatever staled ho• cinabove in Para 1 to 5 is true and correct and it

is as per my p, rsonnnl knowledge.

12. AND WHEW AS , ,!ie Opponent/Respondent, has also submitted

an Affidavit in E^, idcnc e from Shri Premji Mandan Bamania alias

Premgi Sancar, a,,e : 56 years, Occ: Farmer Son of late Mr. Mandan

Govind Bamania nli^ts Sancar Govinde, Hindu, Resident of Kevdi,

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

1) That I was sere ed airh Notice dated: 11/04/2017 for hearing under S

40 of the Cc (o. say that this Notice is vague, and without any

details, and il,..errtnre the entire proceeding stands vitiated on this

count alone. ''hat no, details whatsoever are given in the said Notice

pertaining to hi( 1d land the same is issued. However, reserving the

right to chalk I go Ili Notice itself as being vague, and assuming that

the same is is )ucd for lands bearing S.No105/0 and 115/1 situated

at Kevdi, Diu, hac(, Filed my Written Statement / Reply to Notice.

2) That on rece l pt o f commencement of present proceeding, I had

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

materials on he ^;t rength of which the present case is filed. In

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

which was file be itself before the Hon'ble District Court, Diu.

3) On verificatio, ^ of t i n ' present case file by my Advocate, it is seen that

the Applicant has relied upon and submitted documents totaling

more than 20 but except copy of above referred Appeal Memo

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

and written r(, I t

4) That unless hm,c the information about the materials on which

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

defend my ca (o.

5) That inspite If tlnn, written request by way of application dated:

17/05/2017 o u,i'. oo sufficient time of atleast 15 days to file the

Written State sera after supplying all the documents/ materials on

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

rejected the ippiication/request and you are inclined to decide

this matter . ,j undue haste and in fragrant violation of law of

natural justir o^ 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

of26 ^V^^1 ..^

Opponent / RR ,poiicnt and you have already decided and

declared the ')p;u:.nent/ Respondent as illegal encroachers and

thus this ent r proceeding stands vitiated.

6) I say that y, I^o^ e a bias against me and this predetermined

proceeding it, iatud against me is illegal and unjust and against

naturel justi( , TI i i s amounts to denial of justice.

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

jurisdiction ailhority or power to initiate this proceeding.

Therefore the ^Not'(c itself is bad under the law, null and void and

illegal.

8) That I rely ui > n il,c averments of plaint of the Regular Civil Suit

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

Senior Divisi^ c , )M u (hereinafter referred to as "the civil suit" for

brevity), and sa, lint the averments of the plaint of the Civil Suit

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

suit may h considered while hearing and deciding this

proceeding.

9) That admittec v I :ern in settled possession of the land in question

since Portugi sc Regime as held by the Civil Judge in the civil

suit . This is' is lens attained a finality and binding upon the

parties to t His proceeding . Also the fact that I and my

ancestors /pn cc, ^sor in title were the cultivating tenants of

Banya Landlc d I:umchand Ghela is duly proved in the civil suit,

and this fact s HHH : o not challenged by any party and hence this

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

parties to thi- pro(eeding.

10) Thus admittc 1%, I am in settled possession of the land since

Portuguese Rc Jiro c since prior to coming into force the provision of

Land Revenu , Cocir and hence the provision of S 40 of the Code is

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

encroachment s i ode after the coming into force the provisions of

the Code, an, boo c this proceeding is bad under the law and not

maintainable.

11) That the findi g c ,i. other issues by the civil court in civil suit were

assailed by m in .yopc l before the Hon'ble District Judge, Diu.

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

District Gove no' Pleader had made a statement for and on behalf

of the Respo' lei,, [ U.O.I. that "the Government will not evict the

appellants wb on' adopting due process of law". The DGP further

agreed and a c t Cin card the proposition of law that in such proceeding

the appellant . ill •.c at liberty to take defence and plead that they

of 26

have become v i r of the land by way of adverse possession or

prescription.

13) The Hon'ble 1, ;tr'(L Judge, Diu has accordingly allowed to withdraw

the appeal v .h I -ave to take defence of adverse possession or

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

process of lav or 'jriteviction.

14) That since 20.03 / 1971, I and my predecessors no more remained a

cultivating ter nt of the banya landlord Shri Ramchande Guela or of

the Governme. t o- Ianchayat, but we continued to hold the suit land

and are in po <es con of the suit land and are using, occupying and

possessing tie sOiii land and cultivating the same and taking crops

and continue'- in exclusive possession and asserted the ownership

over the suit 1 nd r penly, to the knowledge of the everybody in whole

of Diu island iclnd!inp the Govt. offices and Panchayat, and without

any objection r (sturbance from anyone of them and we continued

in exclusive i ul i , irhed, peaceful and continuous and open and

hostile posses ion :,s of right as an owner from 20/03/1971 till

date, i.e. For

more than 3G voo: n :, period in possession adverse to the title of the

Panchayat or ^n (I^ wernment and thus our title has ripen into full

ownership an, vc luive become the owner of the suit land by way of

adverse posse sion and/or by way of law of prescription under the

Portuguese Ci :1 ude. That I am not in permissive possession of the

land against ho Government. That the Government is having

knowledge of 1 is I, o tum of our possession atleast since the original

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

persons hard osscssion and cultivating the land) on dated:

15/01/1972 t I ^( then Assistant Civil Administrator (Mamlatdar),

Diu. These rc . >rdr, are produced and brought on record in the civil

suit by the ^ uni, idar, Diu and the documents are duly proved,

exhibited and _'£ui :=o evidence in the civil suit.

15) That I rely up 7 tie plaint of the civil court in support of my plea of

having acquir d c r ^ nership by way of law of adverse possession

and/or by wa' of :i w of prescription under the Portuguese Civil Code,

as well as th, orn<I evidences of the Plaintiffs and the documentary

evidence in the s3r(!. civil suit.

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

(1) The Mamlu' t^,r. uiu to produce certified copies of the following

documents:

of 26

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

the yct 1 S' . I

ii. Receip Dt ),/O1/ 1972 issued by Mamlatdar / Assistant Civil

Admire tre.-r, Diu as having received from Ramchand Ghela

docum nt, in connection to aforesaid Notice.

iii. Letter i l:L half of late Shri Ramchand Ghela dt. 15/01/1972

addres d Assistant Civil Administrator, Diu, in response to

aforest l 1I)ttce.

iv. Certifies to issued by Civil Registrar cum Sub-Registrar on

07/01 97.^ regarding properties in favour of Ramchand

Ghela.

v. Staten at liowing details viz. names of Makati and account

dt.15/ l/' L1i2.

(2) Shri Quess(, i Hi( a,

(3) Shri Jentila' Pr-( ip, and

(4) Smt Hirub( .1 IHitno, to prove fact of possession and nature of

possession.

17) That admitteo.v I have become absolute owner and in exclusive

possession of vii .r land, this proceeding under SAO of the Land

Revenue Code s pre mature, illegal and not maintainable.

18) That the stag nen' of the DGP made in Appeal is binding on the

Government a .d n m"w by initiating a summary proceeding under 5.40

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

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

way of advers( pos>( ssion or prescription.

19) More-so, the 2fcnsc of adverse possession or prescription requires

detailed plead ig i,d detailed evidence which is not permissible in a

proceeding of t su nmary nature hence the initiation of proceeding

under 40 of tl Con R' which is of a summary nature cannot be termed

as due proces of i. %v and this action amounts to contempt of court

(contempt of e r(ler of the Hon'ble District Judge, Diu passed in

the Appeal ar, ins:: the civil suit) as by this action you are illegally

taking away <. jr r,l{ht to take defence of acquiring ownership of the

suit land by a O( r, 1, possession and/or prescription.

20) That I have I co '1 the owner of the said land by law of adverse

possession a d/ by law of prescription and therefore the

Government 1^ s i ^ right to initiate any proceeding under S 40 of the

Code or undci nn other law against me in respect of the said lands.

21) That the pros 0diis also not maintainable for want of necessary

parties. Notic-s to all the parties to the civil suit are not served

of 26

nor joined i t l n r proceedings and hence the same is not

maintainable

22) I say that , for , no i<o,ts and reasons as stated above , the Notice under

S 40 of the ( do i,;sued by you i.e. Deputy Collector , Diu and the

proceeding urr er 1. 10 of the Code is without authority , null and void

and illegal an th' same requires to be set aside , dismissed , revoked

or stopped , in he interest of justice.

Whatever stall _l ltcreinabove in Para 1 to 22 is as per my personal

knowledge and it b s horn read over to me in Gujarati Language and it is

true and correct an ' as per my say.

13. AND WHER ',AS, the Opponent/Respondent, herein submits

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

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

brevity), as under:

1) That the Not (I ited: 11/04/2017 for hearing under 5.40 of the

Code is vagu:. and without any details, and therefore the entire

proceeding st; rids vitiated on this count alone. That no details

whatsoever are giv, ea in the said Notice pertaining to which land the

same is issue f h of ever, reserving the right to challenge the Notice

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

bearing S.No.. 5/u and 115/1 situated at Kevdi, Diu, the following

points and del- ns^ ore raised.

2) That on rec' •pt of commencement of present proceeding, the

Opponent/Re 'or:'lcnl requested the Applicant of this case, to supply

him the docui car e on the strength of which the present case is filed.

In response tl rent, the Opponent/ Respondent is supplied with the

copy of Appea Mania which was filed by Respondent himself before

Hon'ble Distri, Court, Diu.

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

the Applicant ha, relied upon and submitted documents totaling

more than 20( paw's, but except copy of above referred Appeal Memo

(5 pages), nor her documents are supplied to me, inspite of the oral

and written re uc 4' .

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

have initiated his proceedings and what are the material relied upon

by you, it is n^ possible for him/her to properly defend his/her case.

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

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

Written State , «, ^ a after supplying all the documents/ materials

on record of the case file, you have rejected the

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application /n qu,5t and you are inclined to decide this matter in

undue haste and in fragrant violation of law of natural justice

and you har e fled this matter in a very short period on

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

going to gnr :env time or opportunity to defend to the

Opponent/Rc;pondent and you have already decided and

declared the Opponent/Respondent as illegal encroachers, and

thus, with pru,lest, the Opponent/ Respondent submits his/her

Written Statcincrt( as under.

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

Opponent/ Rc pon(lent and this predetermined proceeding is

initiated agai Est the Opponent/ Respondent which is illegal and

unjust and a: dins; natural justice.

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

jurisdiction (r authority or power to initiate this proceeding.

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

illegal.

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

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

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

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

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

and deciding this proceeding.

9) That admit t-, clh the Opponent/ Respondent are in settled

possession of the land in question since Portuguese Regime as

held by the C vil I udge in the civil suit. This issue has attained

finality and 1)n,&:),, upon the parties to this proceeding. Also the

fact that the )pponent/Respondent and his/her predecessor in

title were the cultivating tenants of Banya Landlord Ramchand

Ghela is du l,\ pry e. ed in the civil suit, and this fact is also not

challenged in anc party and hence this issue on fact has also

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

10) Thus admits dlv, the Opponent/ Respondent are in settled

possession of t lrn land since Portuguese Regime, since prior to

coming into G;rce 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 ' :usc. and that no encroachment is made after the

coming intole (e t he provisions of LRC, and hence this proceeding

is bad under He law and not maintainable.

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11) That the findi; i, (u, outer issues by the civil court in civil suit were

assailed by he Opponent/ Respondent In appeal before the

Hon'ble Dist ri: t J tdge, 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 U01 that "the Government will not evict

the appellant:, ^riti out adopting due process of law". The DGP

further agreed and confirmed the proposition of law that in such

proceeding 11(c appellant will be at liberty to take defence and

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

possession or pr(swription.

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

withdraw the alpcal with leave to take defence of adverse

possession or prescription in the proceedings if any initiated by

the State as d tic process of law for their eviction.

14) That since 20/0,')/ '1971, the Opponent/ Respondent and his/her

predecessors no rnore remained a cultivating tenant of the banya

landlord Shri R,umchande Guela or of the Government or

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

possession of tlic suit land and are using, occupying and

possessing tIte s,_rit land and cultivating the same and taking

crops and coivinucd in exclusive possession and asserted the

ownership o<, r t he suit land openly, to the knowledge of the

everybody in a hole 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 lilt date, i.e. For more than 30 years period in

possession <<d^crse to the title of the Panchayat or the

Government and thus the title of the Opponent/ Respondent has

ripen into full (ox nership and he/she has become the owner of the

suit land by crab 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 Gov.^eernment. That the Government is having

knowledge o:f the factum of possession of the

Opponent/Re poudent atleast since the original landlord had

submitted the st^itement showing names of Makati (i.e. persons

having posse ;,or rind cultivating the land) on dated: 15/01/ 1972

to the then A>sistuutt Civil Administrator (Mamlatdar), Diu. These

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records are piod(ccd 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 the Opp'nneut/ Respondent relies upon the plaint of the civil

court in support ^,f their plea of having acquired ownership by way

of law of adv( - sc possession and/or by way of law of prescription

under the Pol t uf;ae se Civil Code as well as the oral evidences of

the Plaintiffs vitii:,sses and the documentary evidence in the said

civil suit.

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

(1) The Mamit idar . Diu to produce certified copies of the following

documents:

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

the year 1°71

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 r,n 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, 19-1-2 regarding properties in favour of Ramchand

Ghela.

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

dt.15 /ol / 1972.

(1) Shri Qt lesson Bica,

(2) Shri J(, ittilnl Premji, and

(3) Smt. 1 iiruh^'n 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 5 .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 end now by initiating a summary proceeding under

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

available to li:e 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 dculed pleading and detailed evidence which is not

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permissible it, a proceeding of a summary nature hence the

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

summary nat are 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 ,lodge, Diu passed in the Appeal against the civil

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

Opponent/R( spondent 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 b\ lmv- of adverse possession and/or by law of

prescription and therefore the Government has no right to initiate

any proceedin 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 b<e set aside, dismissed, revoked or stopped, in the

interest of justice.

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

knowledge and it hits been read over to me personal knowledge and it has

been read over to me in (ruajarati Language and it is true and correct and

as per my say.

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 22/02/2017 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 he 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

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25.04.201 i, Hr 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.

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 ro 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 25.0't )017 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 m ino 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. 111 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 tine respondent had much more than 15 days time

since the 'unpinning of this proceeding, the first date of hearing of

which was. 2:..04.2017. The statement of the respondent "you

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

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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 & Ors on 28 January , 2011 directed that, "before

parting « i th this case we give directions to all the State

Governments in the country that they should prepare

schemes for eviction of illegal/ unauthorized occupants of

Gram Soobhit/Gram Panchayat/Poramboke/Shamlat land

and these Must be restored to the Gram Sabha/Gram

Panchayai 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

cause 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 tr ..rted 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, adequaw 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 i he 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 judgm ent in Regular Civil Suit No. 02/2013 (hereinafter

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

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

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

indeed held fiat 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 Ghcla 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.

X. With respcc t 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 quolifics for action under Section 40 of Goa, Daman and

Diu Land Revenue Code, 196 which has been reproduced as

follows:

"Section 10 : Summary eviction of person unauthorisedly

occupying land vesting in Central Government.-

(1) If in tin 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 arrv of the conditions annexed to the tenure, or

(iii) it being not transferable without the previous permission

under subsection (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 parson 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 bind after he has ceased to be entitled to continue

the use, oc cupaition 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."

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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

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 io the statement in paragraph 14, the findings of

the Civil Aid0c 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 flon'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 Gover melt. 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

of 26

or for a fete 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

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 government."

This landmark judgment is amply clear that the claim of adverse

possession ae,ainst 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

unequivoeolly 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 Ihot "merely on the basis of averments in the affidavit

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

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

possession." 'T'hus, 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 w<as turned down because of the following reasons:

a. With respc ct to Mamlatdar, Diu: the respondent wanted to

"ex<mnine' to produce only certified documents of certain

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

responsibility to submit the releva t documents is that of

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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

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 an, 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 repondent's

argument is once again rejected and it is held that the

proceedings arc as per law.

16. AND WHEREAS , Shri Premji Mandan Bamania, 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;

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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

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 "mcrelt 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:

I. "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.

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

said that I lie 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!

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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,

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

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 reproditced in the foregoing paragraph, it is clear that the

respondent has refused to answer the questions of this authority which

would have led to estaltlishment 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 prx's r me 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 tint 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, 1 ()71 .

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 Din that the respondent was not present for the

of 26

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.

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 464

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

the Judgment dated 30/04/2016 by Civil Judge (Sr.Dn.), Diu) situated at

Kewadi , Bhueharwada , 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

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

To:-

1. The Mamlatdar, Diu for necessary action.

2. Shri Karsan Mandan Bamania and Shri Premji Mandan

Bamania, Both R/o Kevdi, for compliance.

NIC, 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

of 26

v/s rcs no. 05/2013

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