E.S. Da Silva, J.
1. This appeal is directed against the judgment and decree of the learned District Judge, South Goa, Margao, dated 23rd August, 1989 in Civil Suit No. 29 of 1981 filed by the plaintiff/appellant (hereinafter called 'the appellant') against the defendants/respondents (hereinafter called 'the respondents') for declaration and permanent injunction whereby the learned trial Court has dismissed the suit with costs.
2. The appellant filed a suit in his capacity as one of the co-owners of the property known as 'Deuxeta' situated at Sangolda of Sanguem and it was alleged that a piece of land of that property containing forest produce was demarcated by the respondent No. 2, Conservator of Forests, as 'Plot No. 9 Kasauli Coupe of Sanguem Taluka.' The case of the appellant is that the said piece of land is part and parcel of his property 'Deuxeta'. The said property is registered in the Land Registration Office under No. 5094 and in the Land Revenue Office (Matriz) under Nos. 193, 194, 195, 199, 200, 201 and 202. The suit land was wrongly shown in the cadastral plan prepared during the Portuguese regime as Government land. Neither the appellant nor his predecessor had knowledge of such entry. The appellant is in physical occupation and possession of the said land but sometime before the filing of the suit, Officers of the Forest Department encroached into the property and marked certain trees on its north-eastern portion described as 'Kasauli Coupe No. 9'. An advertisement appeared also in the newspapers putting in auction the said Coupe. The appellant stated that the trees standing on the suit land are worth about Rs. 2 lakhs and in case auction was conducted the price of auction might not correspond to the real value of the trees. He therefore prayed for a declaration that 'Kasauli Coupe No. 9' was part and parcel of the property 'Deuxeta' belonging to him and others and for a permanent injunction restraining the respondents from in any manner interfering with the appellant 's possession of the said land.
3. The contention of the respondents is that the property 'Deuxeta' belongs to the appellant but is distinctly and separately surveyed under No. 38 in the cadastral survey done in 1932. Further all the Matriz numbers quoted by the appellant fall within the limits of the said cadastral Survey No. 38. The respondents admitted that the Government invited tenders for the sale of forest produce of 'Kasauli Coupe No. 9' but their stand was that the Coupe falls in Survey No. 1 of cadastral Survey of 1932. The same is Government land and is clearly demarcated in terms of survey records and other records of Government in the plan No. 16249 of 1949. It was further stated that Government land belonging to the Forest Department had been demarcated with boundary stones in 1902 which boundary stones are still existing. The Government is in continuous possession of the land demarcated as Government land at least from 1902. At the time of the survey of 1932 and 'auto de demarcacao' was also drawn and signed by the owners/of the property shown in it.
4. On the basis of the pleadings of the parties issues were framed. The learned trial Judge thereupon recorded evidence of both the parties and arrived at the finding that the appellant has failed to prove the case pleaded by him and accordingly dismissed the suit by the impugned judgment challenged in this appeal.
5. Shri Sardessai, learned counsel for the appellant, has submitted that the new survey which is based on the cadastral survey which has not been promulgated could not have been relied by the trial Judge. It was contended by the learned counsel that the case pleaded by the appellant in the suit stands proved by the document of Land Registration produced by him which indicates what are the boundaries of his property 'Deuxeta'. It was also urged that the oral and documentary evidence brought on record by the appellant fully substantiates his pleadings that Coupe No. 9 shown by the Government in the survey records is part and parcel of his property 'Deuxeta'.
6. In his turn Mr. Coelho Pereira, the learned Advocate General, has joined issue with the learned appellant's counsel and contended that the description of the property 'Deuxeta' in the Land Registration Office does not say what is the area or extent of that property. Besides the appellant has totally failed to adduce any evidence to show what was the area and the actual extent of the suit property. For that purpose no plan or no map was produced by him. Therefore, it could not be said that the document of Land Registration Office by itself would be enough to indicate or substantiate the claim of the appellant that Coupe No. 9 which is shown as registered in the name of the Government in both the cadastral survey as well as the new survey is part and parcel of the appellant's property 'Deuxeta'.
7. I have gone through the records of the proceedings and the impugned judgment of the learned trial Court as well. Admittedly the appellant has filed this suit seeking for a declaration that the piece of land demarcated by the respondents as Plot No. 9 of Kasauli Coupe is part and parcel of the property 'Deuxeta' belonging to him. For this purpose he has relied on his own deposition as well as on the testimony of two witnesses who have spoken on the alleged possession of the appellant in respect of the disputed land. The appellant who is P.W. 1 in the suit has given the boundaries of the suit property indicating that the property 'Deuxeta' is bounded by the Government land only on the southern side. He has further stated that the property is described in the Land Registration Office under No. 5094 and said that one of the co-owners shown in Land Registration document in respect of the suit property is Rucmina, widow of Biqui Baboia Gaonkar who was his great grandmother. The document of the Land Registration Office was produced and marked as exhibit P/1. He has further stated that the property is enrolled in the Matriz in seven plots bearing different numbers in the name of the appellant. The document of Matriz was also produced and taken on record and marked Exhibit P/2. The suit was filed because sometime in August, 1981 some personnel of the Department entered in his property and marked trees on the north-eastern and southern sides. He also saw an advertisement in the daily Rashtramat announcing auction of forest produce in respect of the suit land located in the land interfered by the respondents. He then contacted his advocate to check the possession and found that the Government has demarcated under the denomination 'Kasauli Coupe No. 9' in respect whereof the auction of the forest produce was announced in an area of about 12 hectares of the property 'Deuxeta'.
Therefore, he filed the suit praying for declaration and injunction. He further stated that the area claimed by the Government consists of forest trees and the said area was always in his and other co-owners possession because every year they used to cut foliage of the trees existing in the disputed land to use in the field which is lying at the down slope of the suit property. Besides sometimes they used to remove wooden poles of the suit land which were used for fencing the property. He reiterated that only on the southern side of his property there is a Government land forming its boundaries. However, he further admitted that on the eastern side also beyond the drain which is the boundary of his property there is Government property where trees are being planted after the cutting of forest trees.
He further stated that the property 'Deuxeta' has been represented in the cadastral plan but only partially and that it is with regard to the paddy field portion only to which they have not agreed. He, however, admitted that he could not say what was the area of the suit property and stated that he was not aware whether on the cadastral plan his property has been shown as bearing No. 38 admeasuring 120.80 sq. metres. When he was confronted with the certified copy of the cadastral plan relating to plot No. 38 he has said that he was not admitting it as correct by adding that the cadastral plan has not been finalized or promulgated. The plan was taken on record and marked Exhibit D/2.
8. P.W.2 Shamba Vishvanath Chari has also deposed on behalf of the appellant and he has given the boundaries of the property showing, amongst others, the boundaries on the cast as rivulet and on the south as property belonging to Forest Department. He stated that the property 'Deuxeta' was consisting of paddy field, a garden area with cashew trees, jackfruit trees, mango trees situated above the paddy field and also higher portion on the hill with forest trees. He deposed that there are boundary stones demarcating the boundary between the property 'Deuxeta' and the property of Forest Department situated on the south which boundaries were seen by him since his childhood. He further stated that the appellant was obtaining foliage of the forest trees situated in his property to provide green manure for coconut trees planted in the suit property. However, 7 to 8 years prior to his deposition the Forest Department marked some forest trees located in the appellant's land for the purpose of cutting the forest produce and on account of this a dispute arose between the appellant and the Forest Department. Prior to that he had never seen the Government officials entering into the said area of the forest produce of the appellant's property.
In cross-examination he admitted that he could not say even by approximation what was the area of the appellant's property or what was the area of the disputed portion. He also stated that the property of the appellant and the Government land had been properly and correctly shown on the survey plan prepared by the Government and he was aware that the demarcation had taken place between the Government land and the land of the appellant during which cairns were put for the purpose. He admitted that the said demarcation and the setting of cairns had been done more that 40 years ago. He, however, denied that the appellant was never in possession of the suit land or any part of it. He also admitted that he was a long time friend of the appellant although denied that he had deposed falsely to favour him in the suit.
9. One more witness Saba Vithoba Molekar has also given his deposition in support of the appellant's case. Like the previous one he stated that the property 'Deuxeta' was bounded on the east by rivulet and on the south by the property of the Government. He deposed that he had worked in the property as a labourer for digging around the coconut trees and providing the green manure to it which they were cutting from the portion of the property containing forest trees situated on a higher part where there was a hill. The forest land in the appellant's property was adjacent to the property 'Borim Mole' of the Government and he had seen the boundary line between the two properties which can be distinguished from the boundary stones on the site. He is aware of the present dispute between the appellant and the Forest Department which arose because the personnel of the Forest Department entered into the appellant 's property about 7 to 8 years back and numbered some forest trees in his property for cutting the forest produce.
In cross-examination he admitted that between the property of the appellant and the Government land there are cairns and boundary stones to demarcate the boundary line between them.
10. In their turn the respondents have examined several witnesses in support of their stand that the suit land demarcated as Plot No. 9 of Kasauli Coupe was a distinct property from the property of the appellant and represented in the cadastral survey under No. 1. against the appellant's property shown as No. 38.
11. D.W.1, V.G. Thomas, who was at the relevant time posted as Range Forest Officer as Colem has stated that in the year 1980, the Government prepared coupes in Sanguem Taluka for the purpose of clear felling of forest trees in it. The appellant came forward to claim ownership of one of such coupes, i.e. 'Kasauli Coupe No. 9' which land belongs to the Government and was always in possession of the Forest Department. He, however, admitted that there is some land belonging to the appellant adjoining to the suit land. The property of the Government and the land of the appellant has been clearly demarcated by means of cairns. He has given the boundaries of the suit land which only on the north side has the boundary with the property of the appellant.
12. D.W.2, S.N. Gaonkar, who was also the Range Forest Officer at Colem from June 1968 to February 1971 has also deposed that the Government forests were demarcated by cairns and heaps of stones and he is aware of the location of Coupes Nos. 8 and 9 which lie in the Government land. The appellant was never in possession of that land covered by Coupes Nos. 8 and 9 although he has some land far away.
In cross-examination he also admitted that in between the lands Nos. 8 and 9 and the property of the appellant there lies the land of Government forest. The distance between the appellant's property and the said coupes would be about 400 to 500 metres.
13. D.W.3, V.K. Parameshwaran, had stated that he was working for the Forest Department as Surveyor since 1972. He knows the suit land and he knows also the appellant whose family is the owner of the property situated in the village Sangolda of Sanguem Taluka surveyed under No. 38 of the old cadastral survey. A copy of the survey plan showing the appellant's property was produced and marked Exhibit 28. He further stated that in the new survey the same property of the appellant had been surveyed under Nos. 21/1 and 22/1. The appellant's property is partly paddy field and partly garden land situated at higher level containing cashew and forest trees. The paddy portion is surveyed under No.22/1 and the higher land is surveyed under No. 21/1. A copy of the new survey was also produced and marked Exhibit 29. He further stated that the appellant's property is separated from the Government land on eastern side by boundary stones as well as heaps of stones known as cairns. The Survey Department has conducted a demarcation of the appellant 's property and Government land on 4-1-1933 and on the occasion 'auto de demarcacao' was drawn in the presence of the owners of all the properties covered by the demarcation. A certified copy of the said 'auto de demarcacao' along with attested xerox copy was produced and marked Exhibit 30 after which the certified copy was returned and the xerox copy kept on record. In the new survey the appellant's property has been shown fully and without any alteration under the new numbers 21/1 and 22/1 and its total area is 12.08 hectares. A certificate of Record of Rights in Form I & XIV in respect of the appellant 's property under new survey Nos. 21/1 and 22/1 was produced and marked Exhibit 31 collectively on record. The total area as per the Record of Rights of the new survey comes to more than 13 hectares, i.e. more than the area of 12.08 hectares given to the appellant's property in the old cadastral survey. A certificate in Form I & XIV of the survey records in respect of the Government's new survey No. 21/2 was also produced and marked Exhibit 32.
He further deposed that somewhere in 1981 the Forest Department made some coupes in the Government land under No. 21/2 for the purpose of clear felling of all the forest produce standing in the said coupe. A plan prepared by him showing all the forest land existing at the site and divided in coupes was produced by him and marked Exhibit 33. He has stated that in this plan it is seen that the closest coupe from the appellant 's property was the coupe No. 9 which lies more than 100 metres away from the boundary line of the appellant's property. He also produced Government Gazette dated 20-2-1900 which has published a regulation governing the demarcation and management of the Government forests which was marked Exhibit 34. After the coupes were made for clear felling of the Government land, some were put in auction. A copy of the tender notice for the sale of the forest produce of the coupes was produced and marked Exhibit 35. The witness also produced an official plan showing the Government forest land existing in the village and marked Exhibit 36. He has stated that the plan was prepared in the year 1949 and the same contains only Government land and the adjacent private properties are shown only for the purpose of demarcating Government land. The plan prepared by him showing coupes and the other Government forest land was on the strength of this Government plan of 1949.
In cross-examination he reiterated that in the 'auto de demarcacaoo' it is stated that the members of the family of the owners of the property now claimed by the appellant were present. He, however, admitted that the new survey was based on the old survey. He further stated that when he last visited the site two months prior to his deposition he saw cairns and stones separating appellant 's land from the Government land. There are hills on three sides of the appellant 's property and the hills on the east and south fall entirely on the Government land. He denied the suggestion that the whole new Survey No. 21/2 is part of the appellant's property and never belonged to the Government.
14. It was on the strength of this evidence as well as the documentary evidence that the learned District Judge came to the conclusion that the land in question was part and parcel of Government land and had no relation with the property of the appellant. For this purpose he has taken note of the fact that the appellant in this deposition has made a clear statement that the property 'Deuxeta' was bounded with the Government land only on the southern side which fact was negativated by the very document of Matriz relied by him showing that some of the plots which are enrolled in his name concerning the said property are bounded on the south and eastern side by the property of the Government. Besides the document of Land Registration produced by the appellant shows that the said property's boundary on the east is water shed i.e. slope of the hill which by itself rules out the boundary given by the appellant on the eastern side as being the rivulet. Besides this document the appellant has not been able to bring on record any other material to establish his case that the disputed plot bearing No. 9 of Kasauli Coupe was part and parcel of his property. Obviously the document of the Land Registration was neither indicating the area nor the extent of the said property vis-a-vis the Government land which the documentary evidence of the appellant itself shows is located on the southern and eastern sides of the appellant's land. The respondent has produced sufficient evidence to show that the property of the appellant has been surveyed in the old cadastral plan prepared by the Government sometime in 1933 under plot No. 38 which is depicted in the plan with the exclusion of suit land claimed by the respondents as being part and parcel of his property. The Suit Plot No. 9 is included in the said cadastral plan under No. 1. Similarly in the new survey which appears to have been drawn by the Government on the basis of the old survey plot of the property is seen to be surveyed under Nos. 21/1 and 22/1, this time also without including the claimed portion of plot No. 9 which is again represented in the new survey under survey No. 22/1.
15. The appellant's contention that both the surveys could not be relied because the old survey having not been closed or promulgated a second survey was entirely based on the first survey has been rightly rejected by the learned trial Court on sound reasons with which I am in full agreement. Indeed it is to be seen that the old survey record although could not show that it has been promulgated appears to have been acknowledged as correctly depicting the position of the appellant 's property in view of the'auto de demarcacao' which was drawn by the concerned authorities in the year 1933 in the presence and with the active participation of all its co-owners including the father of the appellant. Therefore it could not lie in the appellant's mouth to claim that he was not aware of that survey in respect whereof he came to know at the time it was alleged that in the year 1981 some Forest officials entered into the property 'Deuxeta' of the appellant and marked some trees for the purpose of clear felling after including it in coupes which were auctioned for the purpose of sale of the forest produce. Therefore since the co-owners of the property 'Deuxeta' including the appellant's father have accepted the boundaries and the extension of the survey No. 38 representing the property 'Deuxeta' the question of the said cadastral survey having not been promulgated appears to be irrelevant or immaterial for the purpose of adjudicating the appellant 's right to the suit property in respect of its precise boundaries. The defendants have also produced evidence to show that in the said cadastral plan the Government property has been represented under No. 1 which includes also the suit land claimed by the appellant. The evidence brought by the respondents also shows that while the land covered by the plot No. 38 in the old cadastral survey has been surveyed under Nos. 21/1 and 22/1 the plot represented in the old cadastral plan as survey No. 1 belonging to the Government has been surveyed under the new survey under No. 22/1. There is no evidence also that at the time of preparation of the new survey and till its promulgation the appellant has raised any objection to the representation of his property 'Deuxeta' under survey Nos. 21/1 and 22/1. It seems that after its promulgation the only objection raised by the appellant is the present suit which was filed by him for declaration and permanent injunction in the year 1981. It is, however, pertinent to note that such suit was available for the appellant only for the purpose of correcting any wrong entry in the promulgated survey record. The present claim of the appellant does not seem to raise any objection with regard to any entry of rights but instead amounts to a dispute of correct boundaries of his property 'Deuxeta'. Hence the remedy open to him in the circumstances is to be the one provided in section 113 of the Land Revenue Code.
So far the old cadastral survey is concerned we have already seen that the fact of its non-promulgation becomes irrelevant consequent upon the fact of the co-owners of the property 'Deuxeta' including the appellant having accepted the boundaries and extension of the survey No. 38 as correct.
Thus, the learned trial Judge was fully justified in holding that the documentary evidence relied by the appellant, namely, the certificate of the Land Registration and the Matriz certificate was not sufficient to rebut the inference which could be drawn from the survey documents produced by the respondents showing the disputed land as being part and parcel of the Government property.
16. So far the alleged possession of the appellant on the suit land is concerned, nowhere in the pleadings the appellant has raised a case of possession of the title of the suit land based on possession by means of prescription. In this respect possession would be relevant only if such claim had been put up by the appellant. However, even on this point the evidence led by the appellant on possession does not appear to be enough to lead to the conclusion that the appellant had acquired the suit plot by adverse possession or prescription. As rightly pointed out by the learned trial Judge admittedly the suit land is containing only forest produce. Being so the appellant could bring about relevant and successful evidence on possession only by showing that he had availed of that produce in the land with competent permission or licence granted by the Government. The appellant has totally failed to adduce such type of evidence and the only evidence sought to be made out with this regard is through the deposition of his witnesses who have spoken to the fact of the appellant cutting the foliage of the forest trees located in the disputed land for the purpose of managing coconut trees of the remaining portion of his property. Obviously such evidence could not be held as conclusive to prove the appellant's possession of the suit land which would be conducive to prescription.
17. To be seen also that the appellant's witness P.W. 2 Shamba Chari has clearly admitted that the property of the appellant and the Government land has been properly and correctly shown in the new survey plan prepared by the Government and that he also knows of the demarcation done some 40 years ago between the Government land and the land of the appellant with the help of the cairns which were put on the site for that purpose. This admission on the part of the appellant's witness again rules out and fully negativities the plea of the appellant that he was not aware of any demarcation or representation of his property 'Deuxeta' in Government records till the time the forest officials attempted to interfere with his possession and ownership rights in respect of the suit land.
18. Shri Sardessai has then submitted that in case was not possible for this Court to hold that Coupe No. 9 was a part and parcel of the appellant's property 'Deuxeta' the Court may make a declaration that at least the boundaries of his property Deuxeta' are as per the boundaries shown in the Land Registration certificate in respect of the property No. 5094 produced by him. It was urged by the learned counsel in this regard that the Court has inherent powers under section 151 of the C.P.C. to mould the relief and grant another relief provided this relief is a lesser relief than the one which was originally sought for by him in the suit. It was stated that as in both cases the ultimate prayer is for a declaration the cause of action could be the same and arise for the reason of the appellant 's property having been interfered with by the officials of the respondents. In support of this plea the learned counsel has placed reliance on the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, : AIR1962SC527 . This was a case wherein while dealing with the issue of temporary injunction under Order 39, Rule 1 the question of inherent powers of the Court arose as to whether on the strength of the provisions of section 94 of C.P.C even on circumstances not covered by Order 39, the Court could issue injunction under its inherent jurisdiction. The Court observed in this regard that section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice.
19. There cannot be any dispute with regard to the inherent powers of this Court to mould the relief to advance the cause of justice. But I am afraid that in the instant case there is no question of this Court exercising inherent powers to grant to the appellant a relief which by its very nature appears to be meaningless and merely academic. Admittedly the suit was filed by the appellant for the purpose of obtaining declaration that the suit land covered by plot No. 9 of Kasauli Coupe shown in the Government name in the survey records was part and parcel of the property 'Deuxeta'. For that purpose the appellant has relied basically and substantially on a document of Land Registration which indicates the boundaries of his property 'Deuxeta'. This Court had held that the reference to the boundaries by itself would not amount to give any help to establish the area and the extent of the appellant's property so as to enable this Court to come to any conclusion to hold that the suit land shown in the Government's name was part and parcel of the property 'Deuxeta'. Nowhere in the proceedings before the trial Court and even in this Court the respondents have disputed the boundaries of the appellant 's property shown in the Land Registration certificate in respect of the property No. 5094 described in the name of some co-owners including the father of the appellant. Being so there is no need for this Court to give a declaration to the effect that the appellant 's property 'Deuxeta' is bounded by the properties referred to in the said Land Registration certificate. The said declaration would be certainly beyond the very scope of the suit bearing in mind the issues framed therein, namely, issues Nos. 2 and 4 which particularly refer to the main prayer of the appellant in this suit which is a declaration that the Kasauli Coupe No. 9 constitutes part and parcel of the property 'Deuxeta'. This being the position I am afraid that the request of the learned counsel of the appellant which is made without his even showing a willingness to amend the plaint accordingly is not able to be allowed.
20. In the result I see no merit in this appeal which is hereby dismissed. The judgment of the learned District Judge, South Goa, dated 23rd August, 1989 is accordingly affirmed. There will be, however, no order as to costs.