Shri. Paik Cuiro Velip And ANR v. The Government Of Goa Through Its Chief Secretary And 68 ORS.

Suchitra

IN THE HIGH COURT OF BOMBAY AT GOA

FIRST APPEAL NO.154/2008

1. SHRI. PAIK CUIRO VELIP son of late Cuiro Velip major, married, Agriculturist, resident of H.No.101, Morpilla-Quepem, Post Fatorpa and his wife;

2. SMT. PARVATI PAIK VELIP major, housewife, resident of H.No.101, Morpilla-Quepem, Post Fatorpa.

...APPELLANTS

Versus

1. THE GOVERNMENT OF GOA through its Chief Secretary, having Office at the Secretariat Panaji, Panaji, Tiswadi, Goa.

2. THE CONSERVATOR OF FOREST Government of Goa, Office of the Conservator of Forest, Forest Department, having Office at Junta House, 18th June road, Panaji, Panaji, (Tiswadi) Goa.

3. THE DY. CONSERVATOR OF FOREST Cashew Division, Ponda-Goa.

4. THE RANGE FOREST OFFICER Cashew Division, Canacona-Goa.

5. SHRI. BHISSO GANESH GAONKAR age 72 years, son of Ganesh Shaba Gaonkar, since deceased through LR's Resp.No.6(a) to 6(p) and his wife,

6. SMT. SARASWATI BHISSO GAONKAR, age 65 years, wife of Bhisso Gaonkar, Since deceased represented through L.R's a) SHRI. FONDU BHISO GAUNKAR of major age, and his wife;

b) SMT. GANGOVATI BHISO GAUNKAR, of major age, both residing at H.No.101, Bagvada, Morpilla, Quepem, Goa.

c) SMT. KHUSHALI BHISO GAUNKAR of major age d) SMT. RADHIKA BHISO GAUNKAR of major age, both residing at H.No.101, Bagvada, Morpilla, Quepem, Goa.

e) SHRI. ARJUN BHISO GAUNKAR of major age and his wife;

f) SMT. ARCHANA ARJUN GAUNKAR of major age, both residing at H.No.101, Bagvada, Morpilla, Quepem, Goa.

g) SHRI. PARTO BHISO GAUNKAR of major age and his wife;

h) SMT. PRAMILA PAVLO GAUNKAR of major age, both residing at H.No.101, Bagvada, Morpilla, Quepem, Goa.

I) SHRI. BABUSO BHISO GAUNKAR of major age and his wife;

j) SMT. BABITA BHISO GAUNKAR of major age, both residing at H.No.101,

Bagvada, Morpilla, Quepem, Goa.

k) SHRI. PANGLO JANU VELIP of major age and his wife;

l) SMT. YESU PANGLO VELIP of major age, both residing at Morpilla, Quepem-Goa.

m) SHRI. TOLU VELIP of major age, and his wife;

n) SMT. BHAGE TOLU VELIP of major age, both residing at Shilli-Baishe, Quepem-Goa.

o) MR. VISHNU VITHOBA VELIP of major age, and his wife;

p) MRS. TULSHI VISHNU VELIP of major age, both residing at Adne-Balli, Quepem-Goa.

7. SHRI. SHAMBU GANESH GAONKAR age 69 years, son of Ganesh Gaonkar.

8. SHRI. DHOLO GANESH GAONKAR age 67 years, son of Ganesh Gaonkar Since deceased represented through L. R's a) SHRI. PRAKASH DHOLO GAONKAR son of late Dholo Gaonkar, major, married, agriculturist and his wife;

b) SMT. PRATIKSHA PRAKASH GAONKAR, major, married, housewife.

c) SHRI. PRABHAKAR DHOLO GAONKAR, son of late Dholo Gaonkar,

major, married, agriculturist and his wife;

d) SMT. PARVATI PRABHAKAR GAONKAR, major, married, housewife, resident of Morpilla, Quepem-Goa.

9. SMT. SATYAWATI DHOLO GAONKAR, age 60 years, wife of Dholo Gaonkar

10. SHRI. FONDU GANESH GAONKAR age 65 years, son of Ganesh Gaonkar All residing at H.No.144, Canibaga, Morpilla, Fatorpa, Quepem-Goa.

11. SMT. CHANDRABAGI FONDU GAONKAR, age 59 years, wife of Fondu Gaonakar

12. SHRI. SONU GAONKAR age 45 years, son of Shaba Gaonkar 13.SMT. JAYAWANTI SONU GAONKAR, age 43 years, wife of Sonu Gaonkar both residents of H. No.144, Canibaga, Morpilla, Fatrorpa, Quepem-Goa.

14. SHRI. KUST PURSO GAONKAR age 70 years, son of Purso Gaonkar Since deceased represented through L.R's a) SHRI. KATU KUSTA GAONKAR and his wife;

b) SMT. KUSHAVATI KATU GAONKAR c) SHRI. GOPAL KUSTA GAONKAR d) SHRI. DEELIP KUSTA GAONKAR e) SHRI. NARAYAN KUSTA GAONKAR

and his wife;

f) SMT. SHOBHAVATI NARAYAN GAONKAR g) SHRI. CHANDRU KUSTA GAONKAR All residents of Voilovado Morpila

15. (deleted from cause title)

16. SHRI. PURSO PAIK GAONKAR age 30 years, son of Paik Gaonkar All resident of H.No.144 Canibaga, Morpilla, Fatrorpa, Quepem-Goa.

17. GOA FOREST DEVELOPMENT CORPORATION LTD.

represented by its Managing Director, having Office at Ponda-Goa.

...Respondents/

Original Defendants No.1 to 17

18. SMT. TOLIYE CUSTA GAONKAR deceased;

19. SHRI. CUSTA GAONKAR deceased; Represented through L. R's a) SHRI. ARJUN C. GAONKAR son of Smt. Toliye and Shri. Custa Gaonkar, age 40 years, and his wife;

b) SMT. DRAUPADI A. GAONKAR wife of Arjun C. Gaonkar, age 28 years, both residing at H.No.659, Barcem-Taluka, Quepem, Post Padi-Goa.

c) SMT. CHANDRAWATI PANGLO VELIP, alias Khejv Custa Gaonkar, wife of Panglo V. Velip, age 49 years.

d) SHRI. PANGLO V. VELIP son of Voddo Velip, age 65 years,

both residing at H.No.365, Matremoll, Khola, Canacona-Goa.

20. SHRI. BOMBO CHONDRU VELIP son of late Chondru Bombo Velip, major, married, agriculturist and his wife;

...Respondents/

Original Plaintiffs No.1 to 2(d)

21. SMT. DRAUPADI BOMBO VELIP major, housewife, both residents of H.No.102, Village Morpila, Taluka Quepem, Post: Fatorpa, Goa.

22. SHRI. ZORGO CHONDRU VELIP son of late Chondru Bombo Velip, major, married, agriculturist and his wife;

23. SMT. LAXMI ZORGO VELIP major, housewife, both residents of H.No.102, Village Morpila, Taluka Quepem, Post: Fatorpa, Goa.

24. SHRI. PAIK VITHOBA VELIP son of late Vithoba Bhoiro Velip, major, married, agriculturist and his wife;

25. SMT. RADHIKA PAIK VELIP major, housewife, both residents of H.No.91, Village Morpila, Taluka Quepem, Post: Fatorpa, Goa.

26. (deleted from cause title)

27. SHRI. NARAYAN ZORGO VELIP major, married, agriculturist and his wife;

28. SMT. LAXMI NARAYAN VELIP major, housewife

29. SHRI. BHOIRO ZORGO VELIP, son of late Zorgo Bhoiro Velip, major, married, agriculturist and his wife;

30. SMT. CHANDRAVATI BHOIRO VELIP, major, housewife

31. SHRI. BABUSO ZORGO VELIP son of late Zorgo Bhoiro Velip, major, married, agriculturist and his wife;

32. SMT. KASHI BABUSO VELIP major, housewife

33. SHRI. LAXMAN ZORGO VELIP son of late Zorgo Bhoiro Velip, major, married, agriculturist and his wife;

34. SMT. LAKSHAVATI LAXMAN VELIP, major, housewife

35. SHRI. GANESH ZORGO VELIP son of late Zorgo Bhoiro Velip, major, married, agriculturist and his wife;

36. SMT. GANGAVATI GANESH VELIP major, housewife

37. SHRI. SONU ZORGO VELIP son of late Zorgo Bhoiro Velip, major, married, agriculturist and his wife;

38. SMT. SHEVANTI SONU VELIP major, housewife All residing at H.No.92, Village Morpila, Taluka Quepem, Post Fatorpa.

39. SHRI. SOPTU CHONDRU VELIP, son of late Chondru Soptu Velip, major, married, agriculturist and his wife;

40. SMT. SARASWATI SOPTU VELIP Since deceased represented through L.R's

a) SHRI. ANIL SOPTU VELIP son of Soptu Chondru Velip, major, married, and his wife;

b) SMT. ASHWINI ANIL VELIP major, married, housewife, both residents of Morpila, Quepem.

c) SMT. DEEPAKA DHORMU VELIP daughter of Soptu Chondru Velip, major, married and her husband;

d) SHRI. DHORMU BHIKAJI VELIP major, married, both residents of Villiam, Khola, Taluka-Canacona, Goa.

e) KUM. MAGHAN SOPTU VELIP daughter of Soptu Chondru Velip, major, household work, resident of Morpila, Taluka-Quepem, Goa.

41. SHRI. CHIMOT CHONDRU VELIP son of late Chondru Soptu Velip, major, married, agriculturist and his wife;

42. SMT. TULJAVATI CHIMOT VELIP major, housewife

43. SHRI. RAM CHONDRU VELIP son of late Chondru Soptu Velip, major, married, agriculturist and his wife;

44. SMT. SITA RAM VELIP major, housewife

45. SHRI. NILU CHONDRU VELIP son of late Chondru Soptu Velip, major, married, agriculturist and his wife;

46. SMT. NIRAPPA NILU VELIP major, housewife All residing at H.No.93, Village Morpila, Taluka Quepem, Post: Fatorpa.

47. SHRI. KATU SHABA VELIP son of late Shaba Janu Velip, major, agriculturist

48. SHRI. JANU SHABA VELIP son of late Shaba Janu Velip, major, agriculturist.

49. SHRI. SHAMBU SHABA VELIP son of late Shaba Janu Velip, major, married, agriculturist and his wife;

50. SMT. BHAGIRATHI SHAMBA VELIP major, housewife

51. SMT. MOG FONDU VELIP widow of late Fondu Shaba Velip, major, housewife All residing at H.No.94, Village Morpila, Taluka Quepem, Post: Fatorpa, Goa.

52. SHRI. JIVA CUSTA VELIP Since deceased represented through L. R's a) SHRI. SANCLU JIVA VELIP b) SHRI. SUDARSHAN JIVA VELIP both minors represented by their mother and natural guardian, the Respondent No.53 abovenamed.

53. SMT. SAGUN JIVA VELIP wife of late Jiva Custa Velip,

major, housewife, both residents of H.No.88, Village Morpila, Taluka Quepem, Post: Fatorpa.

54. SHRI JANU CUSTA VELIP son of late Custa Sanclu Velip, major, married, agriculturist and his wife;

55. SMT. GOPIKA JANU VELIP major, housewife, both residing at H.No.88, Village Morpila, Taluka Quepem, Post: Fatorpa.

56. SMT. POMU NARAYAN GAONKAR wife of Narayan Paik Gaonkar, daughter of late Custa Sanclu Velip, major, housewife, residents of H.No.184, Village Dabem Morpila, of Quepem Taluka, Post: Fatorpa-Goa.

57. SHRI. NARAYAN PAIK GAONKAR Since deceased represented through L. R's a) SHRI. CHANDRU NARAYAN GAONKAR, son of late Narayan Gaonkar and his wife;

b) SMT. MOG CHANDRU GAONKAR c) SMT. KUSHALI NARAYAN GAONKAR, son of late Narayan Gaonkar, major, bachelor d) SMT. SAGUN SOPTU VELIP daughter of late Narayan Gaonkar, major, housewife and her husband;

e) SHRI. SOPTU VELIP major, married, agriculturist

both residing at Govol, Kabde-Ram, Canacona-Goa.

f) SMT. KESAR DHARMA VELIP daughter of late Narayan Gaonkar, major, married, housewife and her husband;

g) SHRI. DHARMU BHUTO VELIP major, married, agriculturist, both resident of Morpila, Quepem-Goa.

58. SHRI. ZORGO GOVIND GAONKAR son-in-law of late Custa Santu Velip, Since deceased represented through L. R's a) SHRI. BHISSO ZORGO GAUNKAR son of late Zorgo Gaunkar, major, married and his wife;

b) SMT. MAYAVATI BHISSO GAUNKAR major, both residing at H.No.203, Kajumol Kanibag, Morpila, Taluka-Quepem, Post:

Fatorpa, Goa.

c) SHRI. SANKLU ZORGO GAUNKAR, son of late Zorgo Gaunkar, major and his wife;

d) SMT. PUNI SANKLU GAUNKAR major, both residing at H.No.203, Kajumol-Kanibag, Morpila, Taluka Quepem, Post: Fatorpa, Goa.

e) SHRI. GANESH ZORGO GAUNKAR son of late Zorgo Gaunkar, major and his wife;

f) SMT. LAXMI GANESH GAUNKAR major, both residing at H.No.203, Kajumol-Kanibag, Morpila, Taluka

Quepem, Post: Fatorpa, Goa.

59. SHRI. GANESH SOPTU VELIP son of late Soptu Ganesh Velip, major, married, agriculturist and his wife;

60. SMT. KASHI GANESH VELIP major, housewife, both residents of H.No.95, Village Morpila, Taluka Quepem, Post: Fatorpa, Goa.

61. SHRI PUNO SOPTU VELIP son of late Soptu Ganesh Velip, major, married, agriculturist and his wife;

62. SMT. RADHA PUNO VELIP major, housewife, both residents of H.No.95, Village Morpila, Taluka Quepem, Post: Fatorpa, Goa.

63. SHRI. SONU BHIVAM VELIP son of late Bhivam Sonu Velip, major, married, agriculturist and his wife;

64. SMT. SATU SONU VELIP major, housewife, both residents of H.No.103, Village Morpila, Taluka Quepem, Post: Fatorpa, Goa.

65. SHRI. KANTU SHABA VELIP major, married, agriculturist and his son;

66. SHRI. SHABA KANTU VELIP major, both residents of H.No.94, Village Morpila, Taluka-Quepem, Post: Fatorpa, Goa.

67. SMT. MALCUM DUDU VELIP widow of late Dudu Fondu Velip, since deceased through L.R's

a) Smt. Laxmi Ganesh Gaonkar, daughter of deceased Respondent No.67, major, married and her husband;

b) Shri Ganesh Zorgo Gaonkar, major, married, Both residents of Caju Vaddo, Morpilla, Quepem, Goa.

68.

SHRI. PORO FONDU VELIP son of late Fondu Dudu Velip, major, married, agriculturist and his wife;

69.

SMT. KAMLAVATI PORO VELIP major, housewife, both residents of H.No.103, Village Morpila, Taluka Quepem, Post: Fatorpa.

....Respondents/ Original Plaintiffs No.5 to 54 Mr. Sudesh Usgaonkar with Ms. Marie Rosette Pereira, Advocates for the Appellants.

Ms. S. Kamat, Additional Government Advocate for Respondents No.1 to 4.

Mr. I. Santimano, Advocate for Respondents No.5 to 9.

CORAM:

M. S. SONAK, J.

DATED:

ORAL JUDGMENT:

1.

Heard Ms. R. Pereira for the Appellants, Ms. S. Kamat for Respondents No.1 to 4 and Mr. I. Santimano for Respondents No.5 to 9.

2.

The challenge in this appeal is to the Judgment and Decree dated 30.10.2006 made by the Ad-hoc District Judge (2) Fast Track-II, South Goa at Margao dismissing Civil Suit No.129/2004/II as also the counter claim raised by and on behalf of respondents no.5 to 9 therein.

3.

The appellants, who are the original plaintiffs in the said Suit have instituted this appeal aggrieved by the dismissal of their Suit. First Appeal No.75/2008 was instituted by respondents no.5 to 9 and others, aggrieved by the dismissal of their Counter Claim in the said Suit.

4.

By Judgment and Order dated 29.09.2014, First Appeal No.75/2008 was disposed of by making the following order: "Heard Mr. Redkar, learned Counsel appearing on behalf of the appellants and Ms. Kholkar, learned Additional Government Advocate appearing on behalf of respondents no. 1 to 5.

2. By the above appeal, the appellants have challenged the judgment, order and decree dated 30/10/2006 passed by the Adhoc District Judge (2), FTC-II, Margao in Civil Suit No. 129/2004/II (New): Special Civil SuitNo. 76/77 (Old).

3. The said suit was inter alia for declaration that the suit portion is part and parcel of the plaintiffs' ancestral property. It is reported that the respondent no.57 of the appeal i.e. the defendant no. 52 had already died during the pendency of the said suit i.e. on 26/03/2006 and no legal representative of the deceased defendant no. 52 were brought on record.

4. The appellants have filed Miscellaneous Civil Application No.676/2011 for setting aside abatement in respect of deceased respondent no. 57 and for bringing on record of the Appeal the legal representatives of deceased respondent no.57. However, since the respondent no.57 had not died during the pendency of the appea1, question of merely setting aside abatement of the appeal as against him and bringing his legal representatives on record, in the Appeal will not be sufficient. The respondent no.57 of the Appeal was the defendant no. 52 in the said Civil Suit No. 129/2004/11 and had died during the pendency of the suit due to which the suit had abated as against the defendant no.52 and being a suit for declaration, it had abated as a whole. Thus, it becomes necessary that abatement as against deceased defendant no.52 should be set aside and the legal representatives of deceased defendant no. 52 are brought on record. Admittedly, the defendant no. 52 has legal representatives.

5. In view of the judgment dated 02/11/2012 passed by this Court in Writ Petition Nos. 785 and 782 of 2011 which squarely applies to the present case, the impugned judgment and order is bound to be

quashed and set aside since the suit had abated as against the defendant no.52, with liberty to the appellants to file appropriate applications before the trial Court for setting aside abatement, bringing legal representatives of deceased defendant no. 52 on record and for condonation of delay, if any,etc.

6. The appellants, in Stamp Number (Appln) No. 2345/2014 have prayed for setting aside the impugned judgment and to remand the case to the trial Court for fresh consideration.

7. In view of the above, following order is made: (a) Impugned Judgment, order and decree dated 30/10/2006 passed by the Adhoc District Judge (2), FTC-II, Margao in Civil Suit No.

129/2004/II (New): Special Civil Suit No. 76/77 (Old) is quashed ad set aside.

(b) Liberty is granted to the appellants to file appropriate applications before the trial Court as observed above. If such applications are filed, the same shall be dealt with in accordance with law.

8. Appeal and Stamp Number (Appln.) No. 2345/2014 stand disposed of accordingly."

5.

Ms. Pereira points out that in terms of the aforesaid Judgment and Order dated 29.09.2014, the Judgment and Order dated 30.10.2006 which has been impugned in the present appeal has already been set aside and the matter has been remanded. She

submits that there will now be a possibility of conflicting decrees if, this appeal is decided one way or the other. She submits that in such circumstances it is only appropriate that even this appeal is allowed and the matter is remanded so that on remand, the entire Suit can be decided afresh by the learned Trial Judge. 6.

According to me, the contention raised by Ms. Pereira deserves to be accepted, as otherwise, there might be a possibility of conflicting decrees. Besides, on perusal of the impugned Judgment and Decree I am satisfied that there was no proper consideration of the respective positions of the plaintiffs as well as the defendants, including the Government of Goa. The learned Trial Judge should have considered the oral and documentary evidence placed on record by the parties and thereafter, proceeded to dispose of the Suit one way or the other.

7.

For the aforesaid reasons, even in this appeal, the impugned Judgment and Decree is set aside and matter is remanded to the learned Trial Judge for disposal of the Suit, based on the evidence already lead, afresh. This means that the Trial Court will have to comply with the directions in Judgment and Order dated 29.09.2014 in First Appeal No.75/2008 and also, hear the parties afresh based on the oral and documentary evidence already

produced and dispose of the Suit and the Counter Claim therein accordingly.

8.

The learned counsel for the appellant points out that in pursuance to the remand ordered by Judgment and Order dated 29.09.2014 , the appellants have not received any notice. If that be so, then, the learned Trial Judge to look into this grievance and if necessary issue a fresh notice so that the Suit and the Counter Claim are disposed of.

9.

The appeal is allowed in the aforesaid terms. There shall be no order as to costs.

10.

The parties, to now appear before the Trial Judge on 04.10.2021 at 10.00 a.m. and file the certified copy of this Judgment and Decree. Learned Trial Judge to consider issuing fresh notices to the parties who may not appear before it on the said date.

M. S. SONAK, J.