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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.1866 OF     2020  (arising out of SLP (C) No. 19683 of 2012)

STATE OF GOA       ...APPELLANT(S)  

VERSUS

NARAYAN V. GAONKAR & ORS.   ...RESPONDENT(S)  

J     U     D     G     M     E     N     T

ASHOK     BHUSHAN, J.

This appeal has been filed by the State of Goa

questioning judgment of High Court of Bombay at Goa

dated 30.06.2011 dismissing the First Appeal No. 115

of 2001 filed by the appellant.  The First Appeal

No.115 of 2001 was filed by State of Goa through the

Secretary,  Forest  Department;  the  Collector  South

Sub-Division, Margao, Goa; the Director of Survey &

Settlement  Officer,  Panaji,  Goa  and  the  Chief

Secretary, Panaji, Goa challenging the judgment and

order  of  the  learned  Civil  Judge  dated  23.04.2001

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dismissing the Civil Suit No. 64 of 1995 filed by the

plaintiffs-respondents 1 to 9 as well as the counter

claim filed by defendants- appellant.  

2. The brief facts of the case necessary to be noted

for deciding this appeal are:

2.1 Special Civil Suit No. 64 of 1995 was filed

by Shri Narayan V. Gaonkar, Shri Shivram V.

Gaonkar  and  Shri  Rama  S.F.  Dessai  in  the

Court  of  Civil  Judge,  Senior  Division  at

Quepem praying for following: -

“In  the  aforesaid circumstances,  it  is  prayed  to your honour, to direct the survey authorities to delete the name of “Forest  Department”  from  the survey  entry  No.11/1  of  the village  Sulcorna  from  “Name  of the  Occupant”  column  of  survey Form  No.I  &  XIV  and  to  declare the  plaintiffs  as  the  exclusive owners  of  the  property  bearing survey  No.11/1  known  as  “CONDA MALL”  or  “BINDANGAL”  or  “BINDAN MOLL” or “CARIA MOLL” of Village Sulcorna of Taluka Quepem.”

2.2 In  the  Suit,  the  Secretary,  Forest

Department, Government of Goa; the Collector

South Sub-Division, Margao, Goa; the Director

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of  Survey  &  Settlement  Officer,  Survey  of

Land  Records,  Panaji,  Goa  and  the  Chief

Secretary,  Government  of  Goa,  Panaji,  Goa

were defendant Nos. 1 to 4.  A common written

statement-cum-counter claim was filed by all

the  defendants  refuting  the  claim  of  the

plaintiffs.   The  defendants  claimed  that

entire suit property under Survey No.11/1 of

village  Sulcorna  of  Quepem  Taluka,

admeasuring an area of 23,04,500 sq. mtrs. is

in  possession  and  belongs  to  the  Forest

Department and as such the name of the Forest

Department  has  been  rightly  recorded  in

occupant’s column in said Survey No.11/1 and

the plaintiffs nor any person have any right

over the suit property.   

2.3 The plaintiffs claim that they are owners in

possession  of  a  landed  property  known  as

CONDA  MOLL  or  BINDIGAL  or  BINDAN  MOLL,

situated  at  Sulcorna  Village  in  Quepem

Taluka,  Goa  was  disputed.   Defendant’s

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pleaded that entire plantation existing there

are  planted  and  enjoyed  by  the  Forest

Department.   It  was  pleaded  that  suit

property is a forest property of the Forest

Department vide Notification published in the

Official  Gazette  “Repartieao  de  Femente”

dated 11.01.1951.   

2.4 In the counter claim, it was pleaded that

plaintiffs have been wrongly recorded as co-

occupants  in  survey  No.11/1  of  Village

Sulcorna,  Taluka  Quepem,  which  is  owned,

enjoyed and in possession of the defendant

No.1 - Forest Department for the last many

years and reference to the Notification dated

11.01.1951 was made.  In the counter claim,

following prayers were made by the defendants

in paragraph 17:-

“17.  In the circumstances, the Defendants pray:

(a) That  by  a  decree  in  the nature  of  direction,  the survey authority be directed to  delete  the  names  of  the plaintiffs  from  the

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occupant’s column in respect of  survey  No.11/1,  Sulcorna Village of Quepem Taluka.

(b) For any other reliefs in the circumstances of the case may require.”  

2.5 Written statement to the counter claim was

also filed by the plaintiffs claiming that

they are in exclusive possession of Survey

No.11/1 and the name of the Forest Department

has been wrongly recorded as co-occupants.  

2.6 The learned Civil Judge framed two issues to

the following effect:-

1) Whether  the  plaintiffs  prove that  they  are  owners  in possession of the suit property as described in paragraph 1 of the plaint?

2) Whether  the  defendants  prove that the plaintiffs name have been  wrongly  recorded  as  co- occupant  in  the  property surveyed  under  No.11/1  of Village  Sulcorna  and  as  such their names may be deleted from the occupant’s column of Survey No.11/1?

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2.7 While answering Issue No.1, Civil Judge held

that  plaintiffs  have  failed  to  prove  that

they  are  owners  of  the  suit  property,

however, Civil Judge upheld the plaintiffs’

possession.   Issue No.2 was answered against

the defendant.  A First Appeal was filed by

the defendants in the High Court praying that

judgment  of  the  learned  Civil  Judge  be

quashed  and  set  aside  to  the  extent  that

learned  Civil  Judge  held  that  respondents

(plaintiffs)  were  in  possession  and  the

judgment insofar as it dismissed the counter

claim of the appellants, it was prayed that

the High Court may delete the name of the

respondents in occupant column in Form Nos.I

&  XIV  and  also  hold  that  respondents

(plaintiffs)  are  not  in  possession  of  the

suit land.  

2.8 No appeal was filed by the plaintiffs against

the judgment of the learned Civil Judge.  The

High  Court  dismissed  the  appeal  of  the

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appellants while observing that trial court

has rightly rejected the plaintiffs’ prayer

for title and also dismissed the defendants-

appellants counter claim that they are owners

of  the  property.   The  High  Court,  thus,

affirmed the judgment of the learned Civil

Judge.  Aggrieved with the judgment of the

High Court, this appeal has been filed by the

State of Goa.     

3. This Court on 05.07.2012 passed following order:- “Issue notice on the application for

condonation of delay as well as on the special leave petition.  

However, the petitioner is directed to produce the relevant records to show that the  property  in  question  is  a  forest land.”

4. In pursuance of the order of this Court dated

05.07.2012, the appellants filed an affidavit dated

17.08.2012 bringing on record Form Nos. I & XIV dated

13.07.2012.  The  Notification  dated  11.01.1951

published in the Government Gazette was also brought

on record.  A Mining Lease granted by Government of

Panaji, Goa dated 09.03.1998 has also been brought on

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record where Mining Lease of an area of 51 hectares

in Survey No.2 of Village Quepem and Survey No.11 of

Village Sulcorna was granted by State of Goa.   

5. An  I.A.  No.  187381  of  2019  was  filed  by  the

appellant  seeking  permission  to  file  additional

documents, i.e., Annexures 1 to 5 to the application.

This  Court  by  order  dated  10.12.2019  allowed  the

application and permitted the respondents to file a

reply  to  the  application  and  the  documents.   On

10.12.2019,  following  order  was  passed  by  this

Court:- “We  find  sufficient  grounds  to  take

additional  documents  on  record. Application is allowed.  

Let  the  counsel  for  the  respondents file a reply to the application and the documents,  which  have  brought  on  the record, within four weeks.  

Let records of the Trial Court be also summoned.  Registry  to  take  appropriate steps.

List on 28.01.2020.”

6. By the above order, the record of the trial court

was also summoned, which was duly received by this

Court and was perused by the Court.  In pursuance of

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the order dated 10.12.2019, counter reply affidavit

in reply to the application have been filed by the

respondents dated 10.01.2020. 7. We have heard Ms. Madhavi Divan, learned ASG for

the  appellant  and  Shri  Carlos  A.  Fereira,  learned

counsel for the respondents.       

8. Learned counsel for the appellants in support of

the  appeal  submits  that  the  trial  court  having

rejected the claim of the plaintiffs of ownership and

the  plaintiffs  having  not  filed  any  appeal,  the

findings  that  they  are  not  the  owner  of  Survey

No.11/1 has become final and no right or title can be

claimed  with  regard  to  Survey  No.11/1  by  the

plaintiffs.   It  is  submitted  that  by  Gazette

Notification  dated  11.01.1951  published  in  the

Government Gazette by the then Government of Goa the

description of the National Forests in District Goa

was published wherein in Village Sulcorna forest was

declared and published.  It is submitted that the

additional affidavit which have been brought on the

record clearly indicate that according to the Goa,

Daman  and  Diu  Land  Revenue  Code,  1968  and  Rules

framed  therein,   when  land  survey  was  made  with

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regard to Survey No.11 of area 230.54 hectares, name

of Forest Department only was recorded.  A complaint

was submitted by Vishnu Shivram Gaonkar, one of the

plaintiffs  to  the  Mamlatdar  complaining  that  land

from Survey No.11 are recorded in the adjacent area

in the name of the Forest Department.  It was claimed

that land does not belong to the Forest Department

but belongs to the applicant.  Request was made to

conduct a survey again and hand over applicant’s land

to  them.  On  the  complaint  filed  by  the  plaintiff

Vishnu Shivram Gaonkar, Dispute Case No.3, Sulcorna

was  registered  and  notice  was  issued  to  Vishnu

Shivram  Gaonkar  to  appear  on  20.10.1975  on  which

date, he appeared before the Mamladatar and withdrew

his application dated 07.08.1975.  It is submitted

that  despite  the  withdrawal  of  the  application  by

Vishnu Shivram Gaonkar in Form III, name of Vishnu

Shivram Gaonkar, Shri Narayan Vishnu Gaonkar and Shri

Rama  S.F.  Dessai  were  added  alongwith  the  Forest

Department  referring  to  Dispute  Case  No.3.  It  is

submitted that when the complaint was withdrawn by

the plaintiff, there was no occasion of their names

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to be added alongwith the Forest Department in the

Survey No.11/1, hence their name was wrongly entered

which deserves to be expunged.  It is submitted that

it was the Forest Department, who was in possession

of the Survey No.11/1.  The State has granted Mining

Lease  on  the  Survey  No.11/1,  which  clearly  proves

that it was the State of Goa, which was in possession

of Survey No.11/1 and there was no possession of the

plaintiffs.  

9. Learned  counsel  appearing  for  the  defendants

refuting  the  submission  of  the  appellants  contends

that the names of plaintiffs’ ancestors were recorded

in matriz document No.4, which clearly proves that it

was the plaintiffs’ forefathers, who were owners of

the  suit  property.   It  is  submitted  that  the

complaint was filed by one of the plaintiffs dated

07.08.1975, which was the complaint with regard to

adjoining land of the plaintiffs and not with regard

to  suit  land.   He  submits  that  withdrawal  of  the

complaint shall have no adverse effect on the right

of the plaintiffs. He further submits that insofar as

lease granted by the State of Goa is concerned, it is

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the State, which has right to grant the lease, even

if the land is owned by a tenure holder.  He submits

that grant of mining lease by the State has no effect

on the rights of the plaintiffs.  He has relied on a

judgment of the Bombay High Court dated 10.12.2013 in

Writ Petition No. 158 of 2005 – Smt. Maria Teresa

Philomena D’Rocha Pegado Vs. State of Goa and Others.

10. We have considered the submissions of the learned

counsel for the parties and have perused the records.

We have also gone through the original record of the

trial court received in pursuance of the directions

of this Court’s order dated 10.12.2019.  

11. The  suit  filed  by  the  plaintiffs  for  seeking

direction to delete the name of “Forest Department”

from the survey entry No.11/1 of the village Sulcorna

and to declare the plaintiffs as the exclusive owner

of the property bearing survey No.11/1 having been

dismissed by the trial court and no appeal having

been  filed  by  the  plaintiffs  against  the  said

judgment  the  rejection  of  the  claim  of  the

plaintiff’s  ownership of survey No.11/1 has become

final.  In  the  suit  filed  by  the  plaintiffs  the

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appellant  had  filed  the  counter-claim  which  was

rejected by the trial court against which appeal was

filed by the appellant which has been dismissed by

the High Court against which judgment the appellant

has come up in this appeal.  

12. The only question to be answered in this appeal

is  as  to  whether  the  counter-claim  filed  by  the

appellant  had  rightly  been  rejected  by  the  courts

below. For answering the above question, we need to

notice the sequence of the events and the evidence on

record filed before the courts below as well as the

additional evidence filed by the appellant in this

Court.  13. The plaintiffs’ case before the trial court was

that the names of the plaintiffs’ ancestors i.e. Essu

Gauncar,  Horry  Gauncar,  Mocunda  Gauncar,  Gonoba

Gauncer, Siva Gauncar, all of Sulcorna were recorded

in the Matriz document.  

14. The Rules were framed, namely, the Goa, Daman and

Diu (Record of Rights and Register of Cultivators)

Rules, 1969. Public notice in Form II was issued with

regard to village Sulcorna in which survey No.11/1

was recorded in the name of “Forest Department” only.

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In the additional documents notice published in Form

II  has  been  brought  on  record  as  Annexure-1  to

I.A.No.  187381  of  2019.  Notice  in  Form  II  was

published as per Rule 5. Rule 5 of the Rules, 1969 is

as follows: “5. Issue of notice. - (1) When the Record of  Rights  is  to  be  introduced  in  any village  for  the  first  time,  the  Talathi shall  issue  a  public  notice  in  Form  II calling  upon  all  persons  who  have  any interest  in  the  lands  in  the  village  to furnish to him either in writing or orally information on all or any of the following points within one month from the date of the public notice:

(i) Survey  number  and  sub-division number,  if  any,  of  the  land(or where the lands are not surveyed, the  name  of  the  field  and  its boundaries) in which he has any interest  as  holder,  occupant, owner,  tenant,  landlord, mortgage, Government lessee or in any other manner.

(ii) The  nature  of  interest  in  the land.

(iii) The tenure on which the land is held, that is to say whether the land is held as owner, occupant class  I  or  II  or  Government lessee.

(iv) The  encumbrance  or  charge,  if any, on the land and the name of the holder of such encumbrance or charge.

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(2) The aforesaid notice shall be published in the village by beat of drum and by affixing copies thereof in a conspicuous place in the village and where there is a village panchayat in the office of the village panchayat.”

15. When  the  notice  was  published  in  Form  II

mentioning  the  name  of  the  ‘Forest  Department’

against survey No.11/1, Vishu Shivram Gaonkar one of

the  plaintiffs  filed  an  application  to  Mamlatdar

stating following:

“Sub: Application regarding the incorrect

     land survey.”

This is to inform you that the Records of Right are surveyed in our village Sulkarna. I  have  seen  the  maps  prepared  by  the Cadastral Survey. The maps are not correct i.e. our land is excluded from the map.

The land adjacent to some of our land is recorded in the name of Forest Department. But  the  land  from  our  survey  No.11 Kanyamal,  Survey  No.16  Charbhat,  Survey No.21  Mutfond,  22/1,  22/2  Patondem  these Bimbad, Survey No.43, Chanode, Survey No.44 Chanode, all from these lands are recorded in  the  adjacent  map  and  that  land  is recorded in the name of Forest Department.  

But land owned by us is existing in that land and the documents regarding the place (land)  are  in  the  name  of  my  father

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Shivaram Vishnu Gaunkar and Narayan Vishnu Gaonkar. We state that the land does not belong to the Forest Department but belongs to us. Kindly conduct a survey again and hand over our land to us.

Regards,

Yours faithfully,

Vishnu Shivaram Gaonkar”

16. On the basis of the application filed by Vishnu

Shivaram Gaonkar a notice was issued in Form VI to

Vishnu Shivaram Gaonkar who had raised the dispute

asking him to present on 20.10.1975 in reference to

his application. The said Form VI i.e. notice dated

01.10.1975 has been brought on record as Annexure-5

to  I.A.No.187381  of  2019.  Vishnu  Shivaram  Gaonkar

appeared before the Revenue Authority on 20.10.1975

and stated that he wished to withdraw his application

dated  07.08.1975  addressed  to  Mamlatdar  for

correction of records of rights. This is further to

be  noted  that  on  the  application  filed  by  Vishnu

Shivaram  Gaonkar.  Dispute  Case  No.3,  Sulcorna  was

registered. Rule 6 of Rules, 1969 provides a detailed

procedure  for  preparation  of  Index  of  Lands  which

contains  the  entire  procedure  from  preparation  of

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draft  of  the  Index  of  Lands  in  Form  III  and

subsequent procedure including individual notice in

Form VI to those who have raised objections. Rule 6

for ready reference is extracted below: “6. Preparation of Index of Lands.— (1)

The  Talathi  shall  on  the  basis  of  the information received under Section 96 and 97 or such information as he may collect by making local inquiry prepare a draft of the Index of land in the village in Form III.  

(2)  The  draft  of  the  Index  of  Lands prepared  under  sub-rule  (1)  shall,  after being checked by the Revenue Inspector or a Survey  Officer  not  below  the  rank  of  a Revenue Inspector, be published by issuing a  notice  in  Form  IV  and  publishing  the notice in the manner provided in sub-rule (2) of rule 5. The notice shall call upon all persons having interest in the lands in the  village  to  inspect  the  draft,  which shall  be  kept  open  for  inspection  for  a period  of  thirty  days  on  the  dates  and times  and  at  a  place  (which  shall  be convenient  to  the  villagers)  to  be specified in such notice and to submit to him in writing within one month from the last date for inspection specified in the said  notice  *  [or  within  such  date  the Government  by  Notification  at  any  time before the promulgation may specify] their objections, if any, to any of the entries in the draft. The notice shall also mention the date (such date being not earlier than one  month  from  the  expiry  of  the  period specified for submission of objections) on which the entries in the draft will be read aloud in public and the objections received within  the  prescribed  period  shall  be inquired into decided by a Survey Officer or as the case may be, a Revenue Officer not below the rank of an Awal Karkun and

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call  upon  the  persons  having  interest  in lands  to  be  present  at  the  aforesaid occasion.  

(3) If from the objection received by the  Talathi  under  sub-rule  (2),  he  finds that disputes exist relating to entries in respect  of  certain  lands,  he  shall  enter such  disputes  in  a  register  of  disputed cases, which shall be maintained for each village in Form V. He shall simultaneously give individual notice in Form VI to each person who appears to him to be interested in the disputed entry, informing him of the dispute and calling upon him to be present on the date the dispute is to be heard and decided.

(4)  On  the  date  specified  in  the notice  issued  under  sub-rule  (2),  the Revenue or Survey Officer concerned shall at the appointed place and time read aloud in the presence of the persons assembled, the draft of the Index of Lands for the village. He shall then inform them of the lands  in  respect  of  which  disputes  have been raised and ask them whether they admit the  entries  in  respect  of  the  remaining lands.  If  they  admit  such  entries  the officer shall make a remark to that effect in the remarks column of the draft. If in respect of any entry any error is pointed out and is admitted by all concerned, the entry shall be corrected and a remark made to that effect in the remarks column. If a dispute is raised in respect of any entry it  shall  be  entered  in  the  register  of disputed cases.  

(5)  Thereafter  the  officer  concerned shall, after verifying whether the Talathi has given individual notices under sub-rule (3), proceed to decide the disputed cases entered in the register of disputed cases

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and record therein his decision in respect of  each  dispute.  The  decision  shall  be announced to the persons assembled.  

(6)  The  entries  in  the  draft  of  the Index of Lands shall be corrected in red ink  by  the  Talathi  in  the  light  of  the decisions given under sub-rule (5).”

17. We have noticed above that as per Rule 5 in Form

II notice was issued inviting all persons who have

any interest in the lands in the village to furnish

to him either in writing or orally information and

objection. In the present case after draft of the

Index of Lands prepared under Rule 6 objection was

filed by Vishnu Shivram Gaonkar as noted above on

which individual notice was also issued to him in

Form  VI  asking  him  to  appear  on  20.10.1975.  On

20.10.1975 proceeding sheet of Court of Aval Karkun

for  record  of  rights  indicates  that  on  20.10.1975

applicant  Vishnu  Shivram  Gaonkar  made  a  statement

which  is  brought  on  record  at  page  17  of

I.A.No.187381  of  2019  which  is  to  the  following

effect: “BEFORE AVAL KARKUN

I shall speak the truth and say*** *****

Name : Vishnu Shivram Gaonkar

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Age  : 21 yrs – bachelor Profession:  Agriculturist Resident : Sulcorna

**  state  that  I  wish  to  withdraw  my application  dated  7-8-75  addressed  to Mamlatdar for record of rights.

Sd/- Vishnu Shivram Gaonkar

Pirla 20/10/75

Before me Sd/-“

18. The record of proceeding sheet dated 20.10.1975

indicates  that  after  recording  the  statement  of

Vishnu Shivram Gaonkar the case was closed. The above

proceedings  indicate  that  the  objection  filed  by

Vishnu Shivram Gaonkar was withdrawn and hence there

was  no  decision  taken  in  Dispute  Case  No.3.  Even

after withdrawal of the claim by the plaintiff, the

names of plaintiffs, Vishnu Shivram Gaonkar, Narayan

Vishnu Gaonkar and Rama S.F. Dessai were added by

correcting the Form III in red ink as required by

sub-Rule(6)  of  Rule  6.  The  entry  of  names  of  the

above persons along with Forest Department was stated

to  be  as  per  D.C.3  as  is  clear  from  Form  III

Annexure-2  brought  on  record  by  the  appellant.  A

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coloured print of above Annexure-2 has been placed

before us by learned ASG which is taken on record,

which  indicates  that  in  Form  III  the  addition  of

names of three persons was by red ink.  When Vishnu

Shivram Gaonkar had withdrawn his claim for deletion

of name of Forest Department, we fail to comprehend

that as to how despite that withdrawal which is duly

recorded in the proceedings their names can be added

along with Forest Department against survey No.11/1.

Thus, the recording of names of the plaintiffs in

survey  No.11/1  along  with  the  name  of  the  Forest

Department  was  illegal  and  not  as  per  Rule  6  of

Rules, 1969. When there was no decision in favour of

the  plaintiffs,  applicant  on  the  objection  dated

07.08.1975,  there  was  no  question  of  adding  their

names in Index of Lands against survey No.11/1. The

addition  of  the  names  of  the  plaintiffs  against

survey  No.11/1  was  completely  without  jurisdiction

and the said entry cannot be allowed to be continued.

19. That in the suit filed by the plaintiffs being

Special Civil Suit No.64 of 1995, there is no mention

of entire proceedings regarding correction of records

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undertaken in 1975. The plaintiffs in the suit did

not disclose the aforesaid facts which were relevant

for determining the issues in consideration in the

suit.  Plaintiffs  thus  have  completely  failed  to

justify the continuance of their names against survey

No.11/1.

20. From  the  additional  evidence  brought  on  the

record by the State, it is clear that in the record

which  was  published  of  the  Village  Sulcarna  for

survey  No.11,  it  was  the  name  of  only  Forest

Department which was mentioned on survey No.11 area

230.45.00 hectares and the addition of the name of

Vishnu  Shivaram  Gaonkar  and  two  others  were  in

pursuance of Dispute Case No.3. The Goa, Daman and

Diu  Land  Revenue  Code,  1968  was  enacted  to

consolidate and amend the Law relating to Land and

Land Revenue in the Union of territory of Goa, Daman

and Diu as then existed. Section 14 of the Code, 1968

which is relevant for the present case is as follows: “14. Title of Government to lands, etc.

— (1) All lands, public roads, lanes and paths  and  bridges,  ditches,  dikes  and fences on or beside the same, the bed of the sea and of harbours and creeks below the  high  water  mark,  and  of  rivers,

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streams, nallas, lakes and tanks, and all canals and water courses, and all standing and flowing water and all rights in or over the same or appertaining thereto, which are not the property of any person, are and are hereby declared to be the property of the Government subject to right of way, and all other  rights,  public  and  individual, legally subsisting.  

Explanation:—  In  this  section,  "high water-mark" means the highest point reached by ordinary spring tides at any season of the year.  

(2)  Unless  it  is  otherwise  expressly provided in any law for the time being in force or in the terms of a grant made by the  Government,  the  right  to  mines, minerals and mineral products shall vest in the 8  Government and it shall have all the powers necessary for the proper enjoyment of such rights.  

(3) Where any property or any right in or over any property is claimed by or on behalf of the Government or by any person as against the Government and the claim is disputed,  such  dispute  shall,  after  due notice has been given and after holding a formal inquiry, be decided by the Collector or  11[an  officer  authorised  by  the Government in this behalf.

(4) Any person aggrieved by an order made under sub-section (3) or in appeal or revision there from may institute a civil suit to contest the order within a period of one year from the date of such order, and the decision of the civil court shall be binding on the parties.

(5) Any suit instituted in any civil court after the expiration of one year from

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the  date  of  any  order  passed  under  sub- section  (3)  or,  if  appeal  or  revision application  has  been  made  against  such order within the period of limitation, then from the date of any order passed by the appellate or revisional authority, shall be dismissed (though limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed  is  inconsistent  with  such  order, provided  that  the  plaintiff  has  had  due notice of such order.  

(6) Any person shall be deemed to have had due notice of an inquiry or order under this  section  if  notice  thereof  has  been given in accordance with rules made in this behalf by the Government.”

21. The respondents had filed reply to I.a.No.187381

of 2019 and the additional documents which have been

filed along with IA, the objection has been taken

with regard to said documents being filed after long

delay.  With  regard  to  the  documents  filed  by  the

State  along  with  IA  following  averments  have  been

made in paragraphs 3.1 to 7:

“3.1 I respectfully state at the outset that these documents are public records and in  public  domain  and  consequently  it  was not  difficult  for  the  State Government/Forest  Department  to  have  had knowledge and/or access to these documents. 4. I say that the entire proceedings in the Trial Court and the High Court have been defended  for  the  State  by  the  Forest Department and surely the Forest Department

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knew  of  these  documents  and  cannot  feign ignorance at this belated stage.

5. I say that the affidavit does not even reveal  why  these  documents  were  not available with the Department and why were not produced in the proceedings, specially considering  that  the  Civil  Suit  in  the Civil  Court,  Quepem,  South  Goa,  Goa  was filed way back in 1995 – almost quarter of a century.

6. Without  prejudice  to  what  is  stated hereinabove,  I  say  that  the  copy  of  the undated  Application  of  Vishnu  Shivram Gaonkar  (referred  as  Application  dated 07.08.1975)  when  perused  would  show  that the  claim  in  this  application  makes  one plea- that the maps are not correct since land  of  Vishnu  Shivaram  Gaonkar  has  been excluded from the map and recorded in the adjacent map “and that land is recorded in the name of Forest Department”.

7. I therefore respectfully submit that the application of 1975 has no bearing with the suit  property  which  is  subject  matter  of the  SLP  and  is  totally  irrelevant  for consideration in facts and circumstances of the present case.”

22. The  respondents  themselves  claim  that  the

documents which have been filed are public records

and in public domain, only objection raised by the

respondents  is  that  it  was  not  difficult  for  the

State  to  have  had  knowledge  and  access  to  these

documents. The veracity of the documents has not been

disputed.

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23. We  have  already  noticed  our  order  dated

10.12.2019  where  these  additional  documents  have

already  been  accepted  with  direction  to  the

respondents to file a reply to the application. The

respondents  do  not  dispute  of  having  raised  the

objection  after  Revenue  records  were  published

mentioning  “Forest  Department”  against  the  survey

No.11/1,  when  the  plaintiffs-respondents  have

withdrawn  their  application  on  20.10.1975,  they

cannot  be  allowed  to  object  the  Entry  of  Forest

Department regarding survey No.11/1 as published in

Form II.  

24. The matriz document which is claimed to be the

basis of rights by the plaintiffs-respondents is not

the  document  of  title.  The  Bombay  High  Court  in

Fabrica da Igreja de N.s. de Milagres vs. Union of

India and others, (1995) 1 Bom CR 588  dealing with

matriz document laid down following in paragraph 14:

“14………It  is  a  settled  position  that  a matriz document is neither an instrument of title nor a source of possession and that the organisation of the “matriz predial” is a  mere  administrative  exercise  aimed  at collecting tax revenues from the land. As such  no  legal  evidentiary  value  can  be

27

attributed  also  to  the  said  registration for the purpose of establishing ownership title or presuming possession on the land.”

25. More so, the plaintiffs ought to have agitated

for their claim with regard to survey No.11/1 and

ought  not  to  have  withdrawn  application  dated

07.08.1975  before  the  Revenue  Official.  It  is

relevant to notice that in the suit which was filed

by  the  plaintiffs  any  mention  of  the  proceedings

regarding  records  of  rights  of  survey  No.11/1

undertaken  earlier  were  not  referred  to  and  the

mention of proceedings under Revenue Code, 1968 and

Rules, 1969 is conspicuously absent. The trial court

having  dismissed  the  suit  of  the  plaintiffs  for

declaring them owner of survey No.11/1, we do not

find any justification for continuance of the names

of  the  plaintiffs  in  survey  No.11/1  of  Village

Sulcorna.  

26. The State in its written statement has claimed

that  Sulcorna  has  declared  as  forest  by  Gazette

Notification dated 11.01.1951 which Gazette was filed

as Annexure AA-3 filed on the record which mentions

Forests Sulcorna and the name of Village Sulcorna,

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the Court below had not placed reliance on the said

Gazette only for the reason that the Gazette does not

mention any survey number. Survey No.11 was situate

in the Forest area is further proved by the documents

brought on the record by the appellant i.e. Mining

Lease which was granted w.e.f 22.11.1987 for survey

No.2 of Village Curpem and survey No.11 of Village

Sulcorna. The conditions of the Lease Deed indicate

that  survey  numbers  on  which  Lease  was  granted

situate in the Forest area, the relevant condition

No.4 of the Lease is as follows:

“To enter upon reserved forests. 4.  Notwithstanding  anything  in  this

Schedule contained the lessee/lessees shall not enter upon any reserve forests included in the said lands without previous sanction in writing of the District Forest Officer nor  fell  cut  a  use  any  timber  or  trees without obtaining the sanction in writing of  that  Officer  nor  otherwise  than  in accordance  with  such  conditions  as  the State Government may prescribe.”

 27. In the Chapter of General Provisions, Clause 15

requires  “Lease  status  of  forest  land  will  remain

unchanged”.  

28. The suit filed by the plaintiffs was to delete

the name of Forest Department from survey No.11 which

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suit having been dismissed the name of the Forest

Department  continues  with  regard  to  survey  o.11/1.

Even though Gazette dated 11.01.1951 does not mention

survey  No.11  but  Forest  was  declared  in  Village

Sulcorna and Survey No.11 is forest land is proved by

other evidence. We are satisfied that the counter-

claim filed by the State deserved to be allowed and

the  name  of  the  plaintiffs-respondents  from  survey

No.11/1 deserved to be struck off.  

29. Learned counsel for the respondents relying on

the judgment of the Bombay High Court at Goa in Writ

Petition No.158 of 2005 (Smt. Maria Teresa Philomena

D’Rocha  Pegado  vs.  State  of  Goa  and  others),  has

submitted that Portuguese Colonial Mining Law was in

force prior to Goa becoming Union Territory and the

State was owner of proprietorship of all deposits of

minor minerals etc. which was so noted in the above

case by the Bombay High Court. Learned counsel for

the respondents has referred paragraphs 14 and 31 of

the judgment which are to the following effect:

“14. It  would  be  relevant  to  refer  to Article 2 of Decree dated 20.09.1906 which was  a  Portuguese  Colonial  Mining  Law  in

30

force  during  the  erstwhile  regime,  which reads thus:

“The  proprietorship  of  deposits  of metals  and  metalliferous  minerals, including  bismuth,  arsenic,  antimony, sulphur, graphite, combustible minerals with the exception of peat, bituminous substances  and  mineral  oils,  precious stones,  alkalis,  phosphates,  mica  and amianthus  belongs  to  the  State;  such beds  cannot  be  prospected  or  worked without  licence  and  concession  by Government in the terms of the present Decree.”

A  perusal  of  Article  2  of  the  aforesaid decree  would  reveal  that  all  metals  and metal-liferous minerals belong to the State and  such  beds  cannot  be  prospected  or worked  without  licence  and  concession  by the Government.

31. We are, therefore, of the considered view that in view of the provisions of sub- section (2) of Section 14 and Section 36 of the  Land  Revenue  Code,  read  with  the provisions  of  Article  2  of  Decree  dated 20.09.1906 which was a Portuguese Colonial Mining Law, the right in the minor minerals vests  solely  in  the  State  Government  and the  State  Government  has  all  powers necessary for the purpose  of enjoyment of such rights. We find that this position is fortified by the provisions of Section 24A of the said Act, which is applicable to all minerals, including minor minerals.”

30. The  above  judgment  of  the  Bombay  High  Court

reiterated  that  it  is  the  State  which  is  the

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proprietor of all minerals beneath the land.  There

can be no dispute to the above proposition. For the

purpose of this case what was relied by the appellant

was that Mining Lease granted for survey No.11, Lease

conditions clearly mention the area as forest area

with the requirement to maintain the status of land

as the forest land. The grant of Lease by the State

is not disputed by the plaintiffs-respondents also.

We, thus, are of the considered opinion that the name

of the Forest Department recorded in survey No.11,

deletion of which has been refused and the name of

plaintiffs-respondents  in  the  record  in  the  manner

and circumstances in which it came on the records of

rights  does  not  establish  any  claim  of  the

plaintiffs-respondents and defendant has clearly made

out  the  case  for  allowing  counter-claim.  The

additional evidence brought on record by the State

before this Court which has been accepted on record

fully support the counter-claim of the defendant. We,

thus,  are  of  the  view  that  counter-claim  of  the

defendant-appellant  deserves  to  be  allowed  and  the

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judgment of courts below is to be modified to the

above extent.  

31. In view of the foregoing discussion, the appeal

of the appellant is allowed, the counter-claim filed

by the defendants in Suit No.64 of 1995 is allowed.

The  name  of  plaintiffs-respondents  be  deleted  from

the  occupant’s  column  in  survey  No.11/1  Sulcorna

Village of Quepem Taluka, District Goa. Parties shall

bear their own costs.

......................J.                                  ( ASHOK BHUSHAN )

......................J.                                   ( NAVIN SINHA ) New Delhi, March 04, 2020.