Heard learned Counsel appearing on behalf of the respective parties.

2. Admit on the following substantial questions of law:

1) Whether without a finding that the land is assessed to payment of land revenue, the provisions of Order 20 Rule 18 of the C.P.C. are applicable.

2) Whether it is permissible in law to order the Collector to partition plots, bearing different survey numbers in an Office of the City Survey, wherein there are several buildings.

3) Whether, when improvements/repairs have been carried out and new structures put up on the property by a co-owner without objection, it would be necessary to determine the value of the improvements/repairs carried out and of the new structures before partitioning the land.

3. By consent, heard forthwith.

4. This Second Appeal is directed against the judgment and decree dated 15/10/2011 passed by the District Judge-II, South Goa, Margao (First Appellate Court) in Regular Civil Appeal No. 222 of 2010, which in turn was filed against the judgment and decree dated 18/07/2008, passed by the Additional Civil Judge Senior Division-II (trial Court), in Special Civil Suit No. 8/2004/II.

5. The appellants were the original defendants no. 2, 3, 4, 5 and 12 in said Special Civil Suit No. 8/2004/II whereas the respondents no. 1 and 2 were the original plaintiffs. The respondents no. 3 to 25 were the other defendants. The parties shall hereinafter be referred to as arrayed in the said suit.

6. The plaintiffs had filed the said Special Civil Suit for partition of the suit property. The suit property is a property comprising of lotes no. 7 and 22 of the property described under no. 6171 of new series in the Land Registration office and enrolled in the Taluka Revenue Office under Matriz no. 18 and bearing Chalta no. 216 of P. T. Sheet no. 240 which includes the structures therein bearing chaltas no. 122, 123, 124 and 125 of P. T. Sheet no. 240. According to the plaintiffs, the suit property was purchased by Mobro Crisna Coulicar alias Mobro Krishna Kavlekar alias Mahabaleshwar K. Kavlekar, father/father-in-law of the plaintiffs, one Esvonta Crisna Coulicar alias Yeshwant Krishna Kavlekar, husband of defendant no.1 and father/father-in-law of the defendants no. 2 to 12 and one Harischondra Crisna Coulicar alias Harishchandra Krishna Kavelkar, father/father-in-law of the defendants no. 13 to 29, in equal shares i.e. 1/3rd each, by a Deed of Transaction, Assent, Sale, Quittances and Declaration dated 28/02/1928. On the death of said three purchasers, the suit property has been owned, possessed and enjoyed by their heirs and has remains joint and undivided. The plaintiffs are wishing to divide the suit property and, as such, they wrote letter dated 03/11/2003 to the defendants no. 1 to 29 through their advocate. The defendants no.1, 3 to 5, 10, 11, 12, 16, 19 to 29 failed to reply to the said letter. The defendants no. 13 to 15 replied to the said letter showing therein willingness for partition. The defendants no. 6, 7, 9, 17 and 18 refused to receive the said letter. Hence, the suit for partition.

7. The defendants no. 8, 9, 20 and 21 did not participate in the suit. The defendants no. 22 to 29 filed their written statements thereby giving no objection for decreeing suit as prayed for.

8. The defendants no. 1 to 7 and 10 to 19 which includes the present appellants resisted the suit. The said defendants alleged that the suit for partition of ancestral properties is not maintainable unless the share of the heirs are ascertained or determined under Inventory Proceedings. It was alleged that the defendants no. 1 to 12 are in adverse possession of the suit property.

9. Following issues were framed by the trial Court:

Issues

1 Whether the plaintiffs prove that they are the co-owners of the suit property, along with the defendants?

2 Whether the plaintiffs prove that they have 1/3^rd share in the suit property and the defendants no.1 to 12 have 1/3rd share and the defendants no. 13 to 29 have remaining 1/3rd share?

3 Whether the plaintiffs prove that they are entitled for partition of their 1/3rd share by metes and bounds?

4 Whether the defendants show that the suit for partition is not maintainable?

5 What relief? What order?

6 Whether the defendants 1 to 12 prove that they are entitled to claim adverse possession in order to create adverse title to the suit property and the construction therein?

10. The plaintiffs examined the plaintiff no. 1 as PW1. The defendants no. 1, 2, 3, 6 to 12 examined the defendant no. 2 as DW1 and two more witnesses. The defendants no. 13 and 14 examined the defendant no. 13 as DW4. The other defendants did not examine any witness. Upon consideration of the entire evidence on record, the learned trial Court held that the plaintiffs have duly proved that they are owners of the suit property along with the defendants, they having 1/3rd share; the defendants no. 1 to 12 having 1/3rd share and defendants no. 13 to 29 having the remaining 1/3rd share. The trial Court held that the defendants no. 1 to 12 could not prove adverse possession. The preliminary decree came to be passed for partition, dividing the suit property by metes and bounds in accordance with the rights of the parties namely 1/3^rd to the plaintiffs; 1/3rd to the defendants no. 1 to 12 and 1/3rd to the defendants no. 13 to 29. It was further directed that the preliminary decree for the partition of the suit shall be forwarded to the Collector, South Goa at Margao under Section 54 of the Civil Procedure Code for actual partition of the suit property by metes and bounds.

11. The defendants no. 2, 3, 4, 5 and 12 (the present appellants of the Second Appeal) preferred Regular Civil Appeal no. 222/2010 before the District Court, South Goa, Margao. The First Appellate Court formulated the following:

Points for determination

1 Whether the suit for partition ought to have been dismissed as not maintainable in the absence of inventory proceedings or a competent public deed of division determining the rights of the parties to the suit property?

2 Whether the learned trial Judge erred in holding that the defendants no. 1 to 12 failed to prove that they had acquired title to the suit property by adverse possession?

3 Whether the judgment and order passed by the learned trial Judge is illegal, capricious and perverse and based on surmises and conjectures?

12. The First Appellate Court, by judgment dated 15/10/2011 held that the suit for partition is maintainable in the absence of Inventory proceedings or competent public deed of division determining the rights of the parties to the suit property. The First Appellate Court maintained the finding of the trial Court to the effect that the defendants no. 1 to 12 have failed to prove adverse possession. The appeal was therefore dismissed.

13. Mr. D'Costa, learned Senior Counsel appearing on behalf of the defendants no. 2, 3, 4, 5 and 12, submitted that Order 20 Rule 18 read with Section 54 of C.P.C. indicates that only when the decree is for partition of an undivided estate assessed to the payment of revenue to the Government or for separate possession of a share in such estate, the partition shall be made by the Collector or any gazetted subordinate deputed by him. He submitted that the existence of jurisdictional fact that what is sought to be partitioned is an estate assessed to the payment of revenue to the Government is sine qua non for directing the Collector to carry out the partition. He submitted that unless there is a clear finding that the property sought to be partitioned is an estate assessed to the payment of revenue to the Government, the Civil Court has no powers to direct the Collector to carry out the partition. He submitted that a preliminary decree is to be made only if the case falls under sub-rule 2 of Rule 18 of Order 20 of the C.P.C. The learned Senior Counsel pointed out that the decree related to buildings. He further submitted that Section 61 of the Goa, Daman and Diu Land Revenue Code, 1968 (the Code, for short), confers power on the Collector to effect partition. He pointed out that the provision of Sub-Section 3 of Section 61 says that the Collector will divide the holding and apportion the assessment in accordance with Rules. These rules are the Goa, Daman and Diu Land Revenue (Partition of holdings) Rules, 1969. He pointed out that 'Holding' is defined as a portion of land held by a holder and Rule 9 lays down that for partition under the decree of the Court, Rules 5, 6, and 7 are applicable. He submitted that in terms of rule 5, care has to be taken to ensure that the productivity of the area allotted to each party is in proportion to his share. He, therefore, submitted that since it is not proved that the suit property is assessed to the payment of revenue to the Government, Section 61 of the Code is not applicable. He further submitted that the defendants have carried out various improvements/repairs and new structures have been put up in the property by the co-owners without any objections and therefore it was necessary to determine the value of improvements/repairs carried out, before partitioning of the land, which has not been done. According to him only the agricultural lands which do not fall under the definition of œEstate? would be partitioned by revenue Court and Section 54 of C.P.C. does not apply to land covered by buildings. He contended that the word 'estate' as ordinarily understood would not be applicable to lands which, though assessed to land revenue, have been built upon and have no longer the characteristic of agricultural land. In this regard, he relied upon œRameshwar Math V/s. Jageshwar Nath and others? [AIR 1953 PUNJAB 250]. He therefore submitted that the substantial questions of law deserves to be answered in the affirmative and Second Appeal deserves to be allowed.

14. On the other hand, Mr. Diniz, learned Counsel appearing on behalf of the plaintiffs submitted that in the written statements, none of the defendants had raised a defence that the suit property is not assessed to the payment of land revenue. He submitted that no issue as such was framed and no evidence was also led by the parties and no arguments were advanced before the Trial Court, on this point. He further pointed that even in the First Appellate Court no ground regarding the assessment of the land for land revenue was taken in the memo of appeal and that no point has been formulated by the First Appellate Court with regard to the assessment of land for land revenue. He read out the provisions of Sections 45, 51, 61 and 83 to 93 of the Code and the provisions of Section 54 and Rule 18 of Order XX of C.P.C.. He submitted that in terms of Order 20, Rule 18(2) of C.P.C., anybody including the Collector can be appointed to make the partition. He submitted that in terms of Section 45 of the Code, all lands are liable for revenue. He pointed out that in paragraph no. 1 of the plaint, reference is clearly made to Matriz number. He submitted that Matriz records are the revenue records. According to him, by virtue of proviso to Section 201 of the Land Revenue Code, old assessment remains. In so far as the improvements are concerned, Mr. Diniz submitted that there is no sufficient evidence to prove that the same were done by the defendants and there being concurrent findings of facts on the said point, against the defendants, the same cannot be considered in the Second Appeal. He, thus, urged that the second appeal deserves to be rejected.

15. Mr. Diniz, learned Counsel appearing on behalf of the plaintiffs relied upon following judgments:

1. Krishnapasuba Rao Kundapur (Dead) After Him His L.R. V/s. Dattatrava Krishnaji Karani [1966 AIR (SC) 1024]

2. K. Chelliah Servai V/s. P. Muthusami Servai [1995 (Supp.1) SCC 202]

16. Mr. Joshi, learned Counsel appearing on behalf of the defendants no. 6 an 7 adopted the submissions made by learned Senior Counsel, Mr. D'Costa whereas Mr. Usgaonkar, learned Counsel for the defendants no. 19 to 29 adopted the submissions made by Mr. Diniz, learned Counsel for the plaintiffs.

17. I have gone through the entire material on record and have considered the submissions made by the learned Counsel for the parties and also the judgments relied upon by them.

18. Admittedly, none of the defendants in their written statements had alleged that the suit property, sought to be partitioned was not assessed to the payment of land revenue. No issue has been framed by the Trial Court on this point of assessment of the suit property to the payment of land revenue. No evidence was led by the parties and no submissions were made before the Trial court on this point. A perusal of the memo of appeal in Regular Civil Appeal No. 222 of 2010 reveals that no ground was taken to the effect that the land was not assessed to the payment of land revenue and, therefore, the direction to the Collector to make partition was not maintainable. No point was formulated by the First Appellate Court regarding the assessment of the suit property to the payment of land revenue. For the first time, by way of additional substantial question of law, the defendants no. 2, 3, 4, 5, and 12 have raised this question in the present appeal. The contention of the learned Senior Counsel appearing on behalf of the said defendants that the said question was of law and there was no need to plead the want of jurisdiction when it was already pleaded that the suit was not maintainable, is not acceptable. The maintainability of the suit was challenged on the ground that there were no previous inventory proceedings held. The question whether the land was assessed to the payment of land revenue or not was a mixed question of law and facts and hence, the same had to be raised in the written statement so that the appropriate issue could have been framed by the trial Court and determined. Not having done so, it is not open to the said defendants now to raise this point for the first time in the Second Appeal. In the case of œKrishnapasuba Rao Kundapur (Dead) After Him His L.R.?(supra), the plea of res-judicata was not raised before the Courts below and even before the High Court. The Apex Court held that where such plea was not raised before the Courts below and High Court, the same cannot be raised for the first time before the Supreme Court. In the case of œK. Chelliah Servai?(supra), the appellant had neither pleaded nor argued that the boundary of properties did not tally with the evidence produced on record. It was held that in the Second Appeal, it was not open to the High Court to go into the question which was neither pleaded not argued before the two Courts below. In the circumstances above, the question of assessment of the suit property to the payment of land revenue could not have been raised for the first time in this Second Appeal. Therefore, the substantial question no. 1 does not arise.

19. Section 54 of C.P.C. provides as under:

œ54. Partition of estate or separation of shares.-

Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates?

Order XX Rule 18 of C.P.C. reads as under:

œ18. Decree in Suit for partition of property or separate possession of a share therein.- Where the court passes a decree for the partition of property or for the separate possession of a share therein, then,

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

(2) if and in so far as such decree relates to any other immovable property or to movable property, the court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.

Thus, in terms of sub-rule (2) of Rule 18 of Order XX, even if the immovable property is not assessed to the payment of land revenue to the Government, the Court can pass a preliminary decree declaring the rights of parties interested in said property and can give further directions like directions to the Collector or any other person to carry out the partition.

20. Section 45(1) of the Code specifically says that all lands, to whatever purpose applied, other than lands owned by the Central Government, but not leased, are liable to payment of land revenue to the Government. Sub-section 2 of Section 45 states that the Government may exempt any land from the liability to such payment by means of a special grant or contract or in accordance with any law for the time being in force. In view of the above provisions, it cannot be believed that the suit property was not assessed to the payment of land revenue. Section 51 of the Code provides as under:

œ51. Assessment of land to land revenue:

(1) The assessment of land revenue on any land shall be made or deemed to have been made, as the case may be with reference to the use of the land-

(a) for the purpose of agriculture,

(b) for the purpose of residence,

(c) for industrial or commercial purpose,

(d) for any other purpose,

(2) Where land assessed for use for any one purpose is diverted to any other purpose, the land revenue payable upon such land shall, notwithstanding that the terms for which the assessment may have been fixed has not expired, be liable to be altered and assessed at a different rate provided for under this code in accordance with the purpose of which it is used or is permitted to be used. The alteration of assessment shall be made in accordance with the rules made in this behalf.?

Thus, as per the above provision, the assessment shall be made or shall be deemed to have been made. In the circumstances above, since there is deeming provision, it was for the defendants no. 2, 3, 4, 5 and 12 to establish that the assessment was not done, in respect of the suit property. Besides the above, admittedly, the suit property bears Matriz no.18. Matriz record are revenue records. No doubt, as contended by learned Senior counsel, the Matriz records have no value after the new survey records have come into force. But as has been rightly submitted by learned Counsel for the plaintiffs, by virtue of proviso to section 201 of the Code, assessment already done will continue to be in force.

21. Section 61 of the Code provides as under:

œ61. 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 holding may be partitioned on the decree of a civil court or on application of co-holders in the manner hereinafter prescribed.

(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:

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.

(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.

Provided that nothing in this sub-section shall apply to any land acquired under the Land Acquisition Act, 1894 (Central Act 1 of 1894), and the Director of Settlement and Land Records shall carry out partition within six months of the receipt of mutated land index form from the concern Mamlatdar and affect 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 1984).?

Thus, this provision also says that Collector may, after hearing the co-holders, divide the holdings and apportion the holdings in accordance with Rules made by the Government under the Code.

22. Chapter VII of the Code relates to assessment and settlement of Land Revenue and lands used for non-agricultural purposes.

23. In the case of œRameshwar Math? (supra), relied upon by the learned Senior Counsel appearing on behalf of the defendants no. 2, 3, 4, 5, and 12, the meaning of the word 'estate' has been explained. It is observed thus:

œ12. The word 'estate' was the subject-matter of interpretation in a case - 'Shah Mohammad v. Mst. Pairi', AIR 1936 Lah 202 (F), which was a case under the Pre-emption Act and the section to be interpreted was Section 16(c) of that Act where the words used are 'owner of the estate' and it was held in this case that the owner of a plot of land situate within the municipal limits of a town, which was once agricultural land and which was afterwards built upon and became urban immovable property, can no longer be deemed to be an 'owner of the estate' within the meaning of Section 16 (c), thirdly, so as to be entitled to preempt the sale of agricultural land situate within the same municipal limits, notwithstanding that the land is still assessed to land revenue and is shown in the revenue papers as bearing a separate 'khasra' number. At p. 205 the learned Judges observed:

'Moreover, the word 'estate' as defined in the Punjab Land Revenue Act, in our opinion, applies to agricultural lands only and does not include any other class of property. As soon as agricultural land is converted into building sites, whether in a village or in a town, its owner, so to say, walks out of the estate and ceases to have any connection with it any longer. He establishes a new character for his possession and is, therefore, to be treated on that basis.'

This case shows that the word 'estate' as ordinarily understood would not be applicable to lands which, though assessed to land revenue, have been built upon and have no longer the characteristic of agricultural land.?

24. It was thus, contended by learned Counsel appearing on behalf of the defendants no. 2, 3, 4, 5, and 12 that since the suit property consists of several structures, it does not have characteristics of agricultural land and therefore, the word 'estate' is not applicable to such land. In the case supr), the High Court of Punjab was concerned with the word 'estate' as defined in the Punjab Land Revenue Act. The said Punjab Land Revenue Act is not applicable to the State of Goa. The reliance placed upon the judgment (supra) is therefore out of place.

25. In civil Application No. 62 of 2012 in Second Appeal No. 45 of 2012, this Court has observed thus:

œ3. In my view, the submission made by learned Counsel appearing for the applicant cannot be accepted. It is settled position in law that when preliminary decree is passed, the Court which passes the preliminary decree, has to forward it to the Collector in view of the provisions of Section 54 of C.P.C. Property has been assessed since the property tax has been levied on the property which comes within the purview of the Collector under the provisions of Land Revenue Code. The applicant always can file his objections to the report submitted by the Commissioner, who is appointed by the Collector on the ground that partition which is suggested, is not equitable and proper.?

26. In view of the discussion, the substantial questions of law at Serial nos. 1 and 2 get answered against the defendants and in favour of the plaintiffs.

27. In so far as the substantial question at serial no. 3 is concerned, the same is based on appreciation of facts and there is clear finding on record that the defendants could not prove that they have carried out improvements to the suit property. The learned First Appellate Court has specifically held that the structures which are in the suit property cannot be said to have been constructed by the defendants or their ancestor late Shri Yeshwant. The said finding on facts cannot be termed as perverse. The substantial question no. 3 therefore gets answered against the defendants no. 2, 3, 4, 5 and 12.

28. In view of the discussion supra, there is no merit in this Second Appeal and, therefore, the same is dismissed. However, in the facts and circumstances of the case, parties to bear their own costs.