Dismissed

Mr. Alfredo Dos Remedious Afonso v. Mr. Gustavo Andre Da Piedade Afonso and Anr.

Bombay HC17 Feb 2014WP/67/2014

Case brief

AI extract

What is this about?

Writ petition challenging an Administrative Tribunal order setting aside a Deputy Collector's partition of land. The Court upheld the Tribunal, holding that where a title dispute is raised, the Collector's jurisdiction ceases and the Civil Court must decide the title before partition.

What did the court decide?

The writ petition was dismissed; the impugned order of the Administrative Tribunal allowing the appeal was upheld.

Mr. Alfredo Dos Remedious Afonso Vs Mr. Gustavo Andre Da… — Land Acquisition | Bombay HC (2014)

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WP67/14

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 67 OF 2014

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Mr. Alfredo Dos Remedious Afonso, Son of late Jose Maria Afonso, 69 years of age, Retired, House No.552, Opposite Vaddem Nagar, English High School, New Vaddem, Vasco de Gama, Goa – 403 802. .. PETITIONER.

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Versus

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Mr. Gustavo Andre da Piedade Afonso, Son of late Jose Maria Afonso, 48 years of age, Service, House No. 83/B, Nagwaddo Betalbatim, Salcete, Goa.

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Mr. Emerico do Carmo Afonso, Son of late Jose Maria Afonso, major in age, House No. 464, Nagwaddo Betalbatim, Salcete, Goa. .. RESPONDENTS.

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Mr. Arjun F. Naik, Advocate for the petitioner.

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CORAM :- U. V. BAKRE, J. DATE : 17th February, 2014

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ORAL ORDER :

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Heard Mr. Naik, learned Counsel for the petitioner.

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2. By this petition, the petitioner has challenged the order dated 31/10/2013 passed by the Administrative Tribunal, Goa in Land Revenue Appeal No. 46/2011.

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3. The petitioner had filed an application under Section 61 of the Goa, Daman and Diu, Land Revenue,Code, 1968 (the Code) for partition of the property bearing Survey No. 45/3 of village Betalbatim on the ground that by virtue of two Wills executed on 08/04/1981 before sub-Registrar of Salcete at Margao, he has been allotted plot A admeasuring 673 square metres, as shown in the plan enclosed with the application. It was his case that his name figures in Form No. I and XIV of the said survey holding and that the said survey holding has been divided into three plots, namely plots A, B and C and that plot A has been allotted to him.

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4. The respondent no.1 filed reply resisting the said application on the following grounds :

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That the Deputy Collector had no jurisdiction to entertain and try the application without ascertaining the shares of the petitioner and the respondents and without producing the order of Inventory Proceedings or any Deed of Settlement; that no physical partition of a common and undivided property is

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permissible unless previously the right of the parties had been established and determined either judicially or by competent public deed; that the Wills executed on 08/04/1981 do not disclose the allotment of plots and the area in square metres of Survey No. 45/3; that the petitioner has failed to submit a correct plan of the property known as 'Odaxira' bearing Survey Nos. 45/3 and 69/17 which is allotted to the parties and mentioned in the Wills; that the late Jose Maria Afonso and his wife Maria Afonso cannot dispose of the portion or the legitime share by way of Wills in terms of Article 1774 and that they can only dispose of the portion as permitted by law after reserving legitime; that the Wills are bad in law as a person can make a Will only about his disposable share, unless there is partition of the property amongst all co-owners without which a specific property cannot be bequeathed; that the application is also liable to be dismissed for non-joinder of spouses of the respondents.

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5. By judgment and order dated 26/07/2011 passed in Case No. LRC/PART/331/2010-III/4032, the learned Deputy Collector and Sub-Divisional Officer, Margao dismissed the objections filed by the respondent no. 1, in relation to the said application for partition as sought by the petitioner and allowed the partition of property bearing Survey No. 45/3 of village

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Betalbatim, Salcete Taluka, admeasuring 673 square metres as per the proposed plan annexed to the order. The learned Deputy Collector directed the Inspector of Survey and Land Records, Margao to carry out the said partition.

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6. Against the judgment and order dated 26/07/2011 passed by the Deputy Collector, the petitioner filed an appeal being Land Revenue Appeal No. 46/2011 before the Learned Administrative Tribunal of Goa. By judgment and order dated 31/10/2013, the learned Administrative Tribunal allowed the appeal and set aside the impugned order dated 26/07/2011 passed by the Deputy Collector and S.D.O., Margao. The learned Administrative Tribunal held that in view of proviso to Section 61 of the Code, no further powers are granted to the Collector for holding any type of enquiry regarding any question of title, once any question as to the title is raised. He held that the Deputy Collector ought to have directed the parties to settle their title through Civil Court.

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7. Mr. Naik, learned Counsel appearing on behalf of the petitioner, submitted that in terms of Wills dated 08/04/1981, the parents of the petitioner have disposed of the property under Survey No. 45/3 in favour of the petitioner and the respondents

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equally with definite and distinct 1/3^rd share in the said property. He submitted that the petitioner has been allotted 1/3^rd share towards the eastern side and the respondent no. 2 has been allotted 1/3^rd share in the middle and that after the execution of Will, the petitioner and the respondents, by way of mutation proceedings, have included their names in the occupants' column of the said property as other heirs had no objection. He further submitted that acting on the said Wills dated 08/04/1981, respondent no.1 constructed residential house towards the eastern 1/3^rd portion of the said property in the plot allotted to him and at that time, he did not obtain no objection certificate from the petitioner. He submitted that the respondent no.1 had produced before the concerned authority a sketch drawn by the Engineer which was produced before the Town and Country Planning Department, showing the alleged partition into three plots. Mr. Naik further submitted that while constructing the house, respondent no.1 encroached into the plot of the respondent no. 2 and in order to avoid the encroachment into the 1/3^rd share of the petitioner towards the western side and in order to protect his 1/3^rd share, the petitioner had filed the application for partition of the said property under Survey No. 45/3 in terms of the allotment of the shares as per the public Wills. He submitted that the subject matter of the public Wills was also

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included in Second Appeal No. 3/2004 between other brothers, wherein the legality of the same was considered by this Court. He, therefore, submitted that respondent no.1 and other brother have acted in terms of the allotment of shares in the said public Wills and, therefore, respondent no.1 could not have objected to the partition. He, therefore, submitted that the impugned order is contrary to the principles of natural justice and is based on no valid reasons and is passed in a casual manner and would result in miscarriage of justice, if not quashed and set aside. He, therefore, urged that notice be issued to the respondents and the petition be disposed of on merits, in accordance with law. Mr. Naik relied upon the case of “ Marcus Nunes alias Marcos Nunes and others Vs. Filomena Sebastiana da Piedade Fernandes and another ”,[2001 (8) LJSOFT 133].

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8. I have gone through the material on record, in the light of the submissions advanced by the learned counsel for the petitioner.

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9. Section 61 of the Code provides as under :

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“61. Partition.— (1) Subject to the provisions of any law for the time being in force for the prevention of fragmentation and consolidation of holdings, a

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holding may be partitioned on the decree of a civil court or on application of co-holders in the manner hereinafter prescribed.

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(2) If in any holding there is more than one co-holder, any such co-holder may apply to the Collector for a partition of his share in the holding:

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Provided that, where any question as to title is raised, no such partition shall be made until such question has been decided by a civil suit.

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(3) Subject to the provisions of sub-section (4), the Collector may, after hearing the co-holders, divide the holding and apportion the assessment of the holding in accordance with the rules made by the Government under this Code.

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[Provided that nothing in this sub-section shall apply to any land acquired under the Land Acquisition Act, 1894 (Central Act 1 of 1894), in respect of which no suit is pending in any Court and it shall be lawful for the Director of Settlement and Land Records to carry out partition and effect necessary changes in the land record on the basis of records relating to possession obtained under section 16 of the Land Acquisition Act, 1894 (Central Act 1 of 1894).]

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(4) The application under sub-section (2) shall be rejected if the partition applied for results in creating a holding, the area or land revenue of which will be below such limits as may be prescribed.

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(5) Expenses properly incurred in making partition of a holding shall be recoverable as a revenue demand

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in such proportion as the Collector may think fit from the co-holders at whose request the partition is made, or from the persons interested in the partition.”

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10. As per the proviso to sub-section (2) of Section 61 of the Code, when any question as to title is raised, no partition shall be made unless such question has been decided by civil suit. As has been rightly held by the learned Administrative Tribunal, the word “raised” is significant and it means that the Deputy Collector has no power to go into the said question of title. As soon as the question of title is raised, he has to refrain himself from making the partition.

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11. In the case of “Marcus Nunes alias Marcos Nunes and others” (supra), the respondents, in their written statement, in no uncertain terms, had admitted the share of each party. It was, therefore, held that once the shares of the parties are determined and admitted by all the parties concerned, Inventory Proceedings appear to be a formality and redundant procedure leading to delay which can be avoided. In the present case, respondent no.1, in the reply to the application under Section 61 of the Code filed by the petitioner, had not admitted the exact share of each party. It was specifically stated in the reply that the

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parents of the petitioner and the respondents could not dispose of their entire shares by way of Wills. It was specifically alleged that the parents could dispose of only the portion which law permits to be disposed of. It was specifically denied that the holding under Survey No. 45/3 has been divided into three plots namely A, B and C and that plot A has been allotted to the petitioner. It was submitted that though the petitioner produced survey plan of Survey No. 45/3, he deliberately avoided to produce survey plan of Survey No. 69/17 which property was also allotted in the same Wills by the parents of the petitioner and the respondents. An allegation was made that while preparing the plan and earmarking the portions on the plan, the petitioner had done the same for his own gain and benefits. It was alleged by respondent no.1 that he was in possession of an area of 890 square metres of Survey No. 45/3. That cannot be the area of 1/3^rd of Survey Holding no. 45/3, which has total area of 2025 square metres.

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12. The learned Deputy Collector, in spite of the fact that respondent no.1 had raised objection to the title, had gone to decide about the said objection. The learned Administrative Tribunal has rightly held that the legislation has used the word “raised” for denoting the extent to which the power under Section 61 of the Code can be exercised. It is rightly held that the

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moment the question of civil right is raised, the jurisdiction shifts to the Civil Court. In my considered view, the impugned judgment and order is in accordance with the settled principles of law. The same cannot at all be termed as perverse. No interference is called for with the same.

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13. Hence, the petition is dismissed.

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U. V. BAKRE, J.

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SMA

Mr. Alfredo Dos Remedious Afonso v. Mr. Gustavo Andre Da Piedade Afonso and Anr.

Case brief

What is this about?

What did the court decide?

Mr. Alfredo Dos Remedious Afonso v. Mr. Gustavo Andre Da Piedade Afonso and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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