There is no dispute that the plaintiffs are owners
in possession of 3/4th of the property namely
“Boiridevanaicalem Chicolantoy Tata Santunaicalem
Calandra” bearing Land Registration no. 31073 of Book B
no. 80 (new), of Salcete. There is also no dispute that the
remaining 1/4th of the said property belongs to the
defendants. However, the suit property bears survey no.
280/3. It was incumbent upon the plaintiffs to prove that
the 3/4th of the property namely “Boiridevanaicalem
Chicolantoy Tata Santunaicalem Calandra” bearing Land
Registration No. 31073 corresponds to survey holdings no.
280/2 and 280/3, taken together. One of the methods for
the plaintiffs to do that was by engaging an expert and by23
drawing a plan of the property bearing Land Registration
no. 31073 on the basis of the description given in the Land
Registration Certificate or otherwise from any other
material available and then superimposing the said plan on
the plan of survey nos. 280/2 and 280/3 and proving that
both correspond to each other. This exercise has not been
carried out by the plaintiffs. The trial Court has not
considered this aspect of identification and therefore has
gone wrong in holding that survey no. 280/3 forms part of
the property of the plaintiffs. The first Appellate Court, in
my considered view, has rightly observed that it is not
understood as to on what basis, PW1 says that her 3/4th
portion is surveyed under survey nos. 280/3 and 280/2 as
there is no evidence of any expert thereby clarifying as
where the boundary of 3/4th portion of plaintiffs ends and
from which point the boundary of 1/4th of the defendants
starts. The first Appellate Court has rightly held that the
plaintiffs have failed to show that their 3/4th portion
corresponds to survey nos. 280/3 and 280/2 (which portion
is not in dispute).
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 54 OF 2003
WITH
CROSS OBJECTION ST.NO. 2161 of 2003
SECOND APPEAL NO. 54 OF 2003
1 Miss Catarina Fernandes
Versus
1) Mr. Jose Menino Rodrigues,
Citation;2013(1)MH L J 367
PRONOUNCED ON: 27th July, 2012
JUDGMENT (Per U. V. Bakre, J)
The above Second Appeal takes exception to the4
Judgment and Decree dated 30/11/2002 passed by the 1st
Additional District Judge, South Goa, Margao (first Appellate
Court) in Regular Civil Appeal No. 62 of 1999, which was
filed by the defendants of Special Civil Suit No. 117/96/II,
against the Judgment and Decree dated 29/04/1999,
passed by the 2nd Additional Civil Judge, Senior Division,
Margao (trial Court) in the said suit. The defendants of the
said Special Suit have filed cross-objection in the present
Second Appeal. This common judgment shall dispose of
the Second Appeal as well as the cross-objection.
2. The parties shall hereinafter be referred to as
per their status in the said Special Civil Suit.
3. The plaintiffs had filed the said suit for recovery
of possession and permanent injunction for directing the
defendants to remove the compound wall, the room and the
store room and whatever encroachments that may be
existing in the suit property and to give vacant possession
thereof to the plaintiffs and to restrain the defendants, their
relatives, etc. from interfering with the suit property. Case
of the plaintiffs, in short, was as follows :5
There is a property known as “Boiridevanaicalem
Chicolantoy Tata Santunaicalem Calandra” situated at
Mazilvaddo of Benaulim, Salcete-Goa. 3/4th of the said
property (northern portion) constitutes a distinct and
separate property described in the Land Registration Office
of Salcete under No. 31073 of Book B No. 80 (new), and
bounded on the East by the public road; on the West by the
property of Francisquinha Dias and the heirs of Fr. Joaquim
Moniz; on the North by that of the heirs of Joao Vicente
Fernandes; and on the South by the remaining 1/4th part of
the same property belonging to Xencora Madeva Sinai
Quencro and his wife Umabai Sinaini. The said 3/4th
northern portion is surveyed under nos. 280/2 and 280/3
of Benaulim Village and the same belongs to the plaintiffs.
The remaining 1/4th portion (southern portion) which is a
separate property belongs to the defendants. The land
bearing survey No. 280/3 is the suit property. The
defendants got the suit property surveyed jointly in the
name of mother/mother-in-law of the defendants, namely
Mrs. Maria Piedade Rebello along with the plaintiff no. 2,
Mrs. Marianinha Fernandes. Taking advantage of the
erroneous survey, and about ten years prior to the filing of6
the suit, the defendants made various encroachments in
the suit property namely construction of compound wall on
the northern boundary, a room and also a store room
therein. The plaintiffs, being poor, could not react
immediately. However since the defendants would not
remove the encroachments, the plaintiffs filed the suit in
the month of March, 1996.
4. The defendants, by way of their written
statement, denied, for want of knowledge, that the plaintiffs
were owners of the property described in paragraph 1 of
the plaint and that the same bears survey nos. 280/2 and
280/3. They admitted that 1/4th of the property
“Boiridevanaicalem Chicolantoy Tata Santunaicalem
Calandra” belonged to Xencora Madeva Sinai Quencro and
his wife Umabai Sinaini. They stated that they purchased
the same along with two parcels annexed to it from the
respective owners and the said two parcels together with
1/4th part are adjoining each other and form one property
which is possessed by the defendants. The suit property
bearing survey no. 280/3 belongs exclusively to the
defendants and has been in their possession for more than7
50 years which possession has been peaceful,
uninterrupted and continuous, without any obstruction from
any person, which by itself gives prescriptive title to the
defendants. The defendants alleged that the compound
wall has been existing from the year 1970 and the room
and store room were in existence fore more than 50 years
though they were reconstructed in the year 1973. The said
room and store room are adjoining to each other and
besides these structures, there is a W.C. and two more
structures situated in the suit property which are also
existing for the last 50 years. In the suit property, there is
plantation made by the defendants. The defendants also
contended that the suit of the plaintiffs was barred by
limitation.
5. The defendants filed counter claim alleging that
by a deed dated 21/1/29, they purchased 1/4th of the
property known as “Boireadevonaicalem” or “Chicolantoi”
or “Santunaicalem” or “Calandra”, described in the land
Registration Office under no. 14677, New Series, situated at
Benaulim, which is surveyed under no. 280/3 and partly
under survey no. 280/5. They prayed for declaration that8
they are owners in possession of the said property bearing
survey no. 280/3 of Benaulim village and for direction to the
survey authorities to delete name of plaintiff no. 2 from
the survey records in respect of the said property and to
record the names of defendants therein.
6. The plaintiffs filed written statement to the
counter claim thereby denying the averments made by
defendants, therein.
7. On appreciation of the evidence on record, the
trial Court held that the plaintiffs had established their
ownership in respect of 3/4th of the said property. Trial
Court did not accept the claim of ownership, set up by the
defendants, in respect of the portion alleged to have been
encroached. The trial Court held that 3/4th of the property
of the plaintiffs bears survey no. 280/2 and 280/3 and
remaining 1/4th, belonging to the defendants, bears survey
no. 280/5. Trial Court held that the defendants failed to
prove that that they are owners in possession of the portion
alleged to have been encroached. He further held that the
plantation of trees and construction of various structures in9
the suit property, is nothing but encroachment in plaintiffs'
survey no. 280/3. It has been observed by the trial Court
that the defendants have not put up adverse possession as
a claim and also have not prayed to be declared as owners
by adverse possession. He held that plaintiff's suit for
restoration of possession was not barred by limitation. The
trial Court decreed the suit of the plaintiffs and dismissed
the counter claim of the defendants.
8. In the Regular Civil Appeal No. 62 of 1999,
preferred by the defendants, the learned first Appellate
Court held that the plaintiffs' suit was barred by law of
limitation. The first Appellate Court further held that it is
not understood as to on what basis the plaintiffs say that
their 3/4th portion is surveyed under nos. 280/3 and 280/2
as there is no evidence of any expert to show as to where
the boundary of 3/4th portion of plaintiffs ends and from
which point the boundary of 1/4th portion of defendants
starts. The first Appellate Court found that the plaintiffs
have not produced evidence to show that their 3/4th portion
corresponds to survey nos. 280/3 and 280/2. The first
Appellate Court further found that the plaintiffs did not10
object to the construction of cement seat carried out by
the Government with permission from the defendants, in
that property. She found that PW1 has admitted that the
defendant no.1 is enjoying the fruits of the trees from the
suit property. The first Appellate Court also came to the
conclusion that the counter claim is barred by limitation.
Consequently, the appeal came to be partly allowed. The
judgment and decree of trial Court insofar as it decreed
the suit has been set aside and insofar as it related to
dismissal of the counter claim, has been confirmed. In other
words, the suit as well as the counter claim came to be
rejected. Hence, the second appeal by plaintiffs and cross
objection by defendants.
9. The Second Appeal has been admitted on the
following substantial questions of law :-
I) Whether the Suit of the Appellants could
be held to be barred by limitation, particularly
in view of the fact, that the Respondents
claimed a right to the property surveyed
under Survey No. 280/3, firstly on the ground
that they had title to the same, and11
alternatively on the ground that they had
acquired the same by prescription, neither of
which they succeeded in establishing as per
the findings recorded by the Trial Court and
not recorded by the First Appellate Court?
II) Whether the impugned judgment and
decree passed by the First Appellate Court is
vitiated on account of misreading of the
Certificate of Description and Inscription,
ignoring the boundaries of the 3/4th part
purchased by Appellants and on account of
ignoring the admission on the part of the
Respondent no.1, flowing from the fact that
he claimed that he had purchased a part of
Survey No. 280/3 from their predecessors-intitle?
III) Whether non-production of sketch as
provided under Order VII, Rule 3 of Civil
Procedure Code showing the extent of
encroachment, was fatal to the Appellants'
case in view of the fact that the Appellants
were seeking restoration of possession of the12
entire property surveyed under Survey No.
280/3?
IV) Whether the mere filing of an
application for deletion of the name of the
plaintiffs from the survey records would
furnish a cause of action for a Suit for
recovery of possession, and whether unless
the Suit is filed within 12 years of knowledge
of such application, the same is barred by
limitation?
10. Mr. S. D. Lotlikar, learned Senior Counsel on
behalf of the plaintiffs, at the out set, contended that there
is absolutely no question of identification of the suit
property involved in the suit. He argued that the suit
property is the entire survey no. 280/3. He invited my
attention to paragraph 1 of the plaint wherein the plaintiffs'
property has been fully described and stated to be
surveyed under nos. 280/2 and 280/3 and to paragraph 1 of
the Written Statement wherein the defendants have simply
not admitted the contents of paragraph 1 of the plaint for
want of knowledge. According to learned Senior Counsel,13
the denial in paragraph 1 of the written statement is no
denial at all, in law. Learned Senior Counsel, on behalf of
the plaintiffs, argued that there is no dispute that 3/4th of
the property named “Boiridevanaicalem Chicolantoy Tata
Santunaicalem Calandra” which is the northern portion
belongs to the plaintiffs and the remaining 1/4th part of the
entire property lying on the northern side belongs to the
defendants. According to him, the title of the plaintiffs to
survey nos. 280/2 and 280/3 has not been denied by the
defendants. He submitted that the defendants claimed
title to property bearing survey no. 280/3 exclusively and
prescriptive title to the same on the ground of possession
for more than 50 years peacefully, uninterruptedly,
continuously and without obstruction from any person and
did not claim title by way of adverse possession. Learned
Senior Counsel contended that the trial Court had rightly
held that the plaintiffs had established their ownership in
respect of the suit property by way of documentary
evidence. He further contended that the learned first
Appellate Court has wrongly held that the suit is barred by
law of limitation. He invited my attention to paragraph 8 of
the impugned judgment wherein the first Appellate Court14
has held that the suit is governed by Article 65 of the
Limitation Act under which the limitation to file the suit for
possession of immovable property or any interest therein,
based on title, is of 12 years. He pointed out that the
learned first Appellate Court has not considered the fact
that the time from which the said period of 12 years begins
to run is when the possession of the defendant becomes
adverse to the plaintiffs. He contended that since the
defendants had not claimed adverse possession and even
otherwise had failed to prove the same, counting period of
possession from the month and year in which the plaintiff
constructed compound wall, room and store room was not
proper. He submitted that the suit of the plaintiffs was well
within the limitation period. He pointed out from the
evidence that the plaintiffs, on 26/02/1996, had issued a
legal notice to the defendants demanding removal of the
encroachments, which notice is at Exhibit PW1/E. He
argued that 1/4th of said property which was sold to the
defendants bears survey no. 280/5 and no part of it falls in
survey no. 280/3, and this is borne out from the evidence,
as held by trial Court. He, therefore, argued that the
learned trial Judge had rightly decreed the suit and had15
dismissed the Counter Claim, which judgment is required
to be restored by allowing this Second Appeal.
11. Per Contra, Mr. Anthony D'Silva, on behalf of the
defendants, vehemently argued that the plaintiffs have not
proved as to where their 3/4th portion lies and therefore the
finding of the learned first Appellate Court holding that
3/4th portion of the plaintiffs has not been proved to be
surveyed under No. 280/3 and 280/2, cannot be faulted.
The learned counsel for the defendants further pointed out
from the evidence that the plaintiffs did not object to the
construction of the cement seat done by the Government in
the suit property with the permission from the defendants.
He further pointed out that there is no dispute that the
defendants are enjoying the fruits of the trees from the suit
property and are further having their compound wall,
room and store room therein. He argued that the
defendants are claiming ownership to survey no. 280/3 by
virtue of the sale deed dated 21/01/1929 and have proved
their title as well as possession. He contended that since
the name of Mrs. Marianinha Fernandes (plaintiff no. 2) is
appearing in the survey records, without any right to the16
suit property, her name is required to be deleted from the
survey records. He submitted that counter claim is not
barred by law of limitation, since the cause of action for the
same arose in the year 1996 when the plaintiffs instituted
the Special Suit No. 117/96/II. He, therefore, argued that
the appeal be dismissed and the cross-objection be
allowed.
12. I have gone through the entire material on
record.
13. There is no dispute between the parties with
regard to survey no. 280/2, which belongs to the plaintiffs
and survey no. 280/5, which belongs to the defendants. The
dispute is in relation to survey no. 280/3 only, which is the
suit property.
14. The plaintiff no. 2 had filed an application dated
16/7/74 for deletion of the name of Maria Piedade Rebelo
(mother/mother-in-law of defendants), from the record of
survey no. 280/3, upon which an inquiry was conducted by
the Awal Karkun and the said application came to be17
dismissed, by order dated 27/12/1976. The first Appellate
court has observed that since the statement of the plaintiff
no. 2 in the said case was recorded by Awal Karkun in the
year 1976, it can be considered that the possession of suit
property by the defendants commenced from 1976 and
therefore the period of limitation, for the plaintiffs, to file
suit based on title would expire on 27/12/88. The suit
having been filed on 30/3/96, has been held to be barred by
limitation. The first Appellate Court has relied upon Article
65 of the Limitation Act, 1963. Article 65 provides the
period of limitation as 12 years for suit for possession of
immovable property or interest therein, based on title and
the time from which the period begins to run is when the
possession of the defendant became adverse to the
plaintiffs. In the present suit, the plaintiffs have prayed for
recovery of possession of the immovable property based on
title. However, neither in the Written Statement nor in the
Counter Claim, the defendants have claimed to be in
adverse possession of the suit property. They have not
prayed for declaration that they are owners by adverse
possession. Even otherwise, the trial Court has observed
that in order to put up the claim of adverse possession,18
firstly, the defendants have to admit that the plaintiffs are
the owners of survey no. 280/3 and then they have to show
as to since when they are in adverse possession and have
to specifically aver the date from which they have informed
the plaintiffs that they are in adverse possession. The trial
Court has held that the defendants have not done this. It is
held by the trial Court that the defendants have failed to
prove that they are in adverse possession of survey no.
280/3. The above findings of trial Court are not reversed by
the learned first Appellate Court. The first Appellate Court
has observed that the suit is governed by Article 65 of the
Limitation Act under which limitation to file the suit for
possession of immovable property or interest therein, based
on title, is 12 years. However, the first Appellate Court has
ignored the portion of Article 65 which provides that the
time from which the said period begins to run is when the
possession of the defendant became adverse to the
plaintiffs. Proof of mere possession from 1976 was not
enough. Therefore, the question of limitation of 12 years,
for filing the suit, does not arise. The suit filed by the
plaintiffs was not barred by limitation. In view of the above,
the substantial questions no. (I) and (IV) get answered in19
favour of the plaintiffs.
14. The Second substantial question of law, as
framed, takes for granted that the claim of the defendants
is that they had purchased part of Survey no. 280/3 from
predecessors-in-title of the plaintiffs. However, in the
counter claim, the defendants have specifically pleaded
that they have purchased 1/4th of the property by deed
dated 21/01/1929 which is surveyed under No. 280/3 and
partly under survey no. 280/5. They have specifically
pleaded in paragraph 3 of the Written Statement that the
property surveyed under no. 280/3 exclusively belongs to
them. Therefore the claim of the defendants is that by said
deed dated 21/01/1929 they had purchased entire survey
holding no. 280/3 and part of survey holding no.280/5.
Neither in the pleadings of defendants nor in the evidence
of DW1, there is an admission that the defendants had
purchased only a part of survey no. 280/3 from their
predecessors-in-title. There is no evidence on record to
prove that the survey holding no. 280/3 (suit property)
along with survey holding no. 280/2 corresponds to 3/4th
portion of the property described in land registration office20
of Salcete, under no. 31073, claimed by the plaintiffs.
15. In paragraph 1 of the plaint, the plaintiffs
pleaded that they are owners of the property
“Boiridevanaicalem Chicolantoy Tata Santunaicalem
Calandra” bearing Land Registration No. 31073, which is
3/4th lying on the north. The Plaintiffs further alleged that
above 3/4th of the property bears survey no. 280/2 and
280/3. However, in paragraph 1 of the written statement,
the defendants have pleaded that the contents of the
paragraph 1 of the plaint are not admitted for want of
knowledge and the plaintiffs are put to strict proof thereof.
It is true that the defendants are expected to expressly
deny the fact which lies within their knowledge. However,
when the defendants have no knowledge of the fact, the
Court cannot decide against the defendants on a technical
ground of want of specific denial. In such a case, it is the
duty of the Court to properly marshal all facts before
coming to the final conclusion. Rules 3, 4 and 5 of Order
VIII of C.P.C. deal with the manner in which allegations of
the fact in the plaint should be dealt with and legal
consequences follow from non-compliance, thereof. The21
written statement must deal specifically with each
allegation of fact in the plaint and when the defendant
denies such fact, he must not do so evasively, but
specifically and unambiguously. If his denial of the fact is
not specific but evasive, the said fact can be taken to be
admitted and in such an event the admission, being proved,
no other proof is necessary. In paragraph 1 of the written
statement, the defendants have specifically denied the
contents of paragraph 1 of the plaint and they have put the
plaintiffs to strict proof thereof. In paragraph 3 of the
plaint, the defendants have stated that the property
bearing survey no. 280/3 belongs exclusively to them.
There is therefore denial of the claim of ownership of the
plaintiffs with regard to the suit property bearing survey no.
280/3 as well as a specific plea pertaining to the same. It is
therefore wrong to contend that the defendants have not
denied the ownership of the plaintiff in respect of survey
no. 280/3.
16. The substantial question no. II is answered against
the plaintiffs.22
17. Since case of the plaintiffs is specifically that all
the encroachments fall within the suit property bearing
survey no. 280/3 and that the said suit property belongs to
them, the question of filling of sketch under Order VII Rule 3
of the C.P.C., showing the extent of encroachments, does
not arise and non-production of such sketch would not be
fatal. Substantial question no. III therefore gets answered
in favour of the plaintiff.
18. There is no dispute that the plaintiffs are owners
in possession of 3/4th of the property namely
“Boiridevanaicalem Chicolantoy Tata Santunaicalem
Calandra” bearing Land Registration no. 31073 of Book B
no. 80 (new), of Salcete. There is also no dispute that the
remaining 1/4th of the said property belongs to the
defendants. However, the suit property bears survey no.
280/3. It was incumbent upon the plaintiffs to prove that
the 3/4th of the property namely “Boiridevanaicalem
Chicolantoy Tata Santunaicalem Calandra” bearing Land
Registration No. 31073 corresponds to survey holdings no.
280/2 and 280/3, taken together. One of the methods for
the plaintiffs to do that was by engaging an expert and by23
drawing a plan of the property bearing Land Registration
no. 31073 on the basis of the description given in the Land
Registration Certificate or otherwise from any other
material available and then superimposing the said plan on
the plan of survey nos. 280/2 and 280/3 and proving that
both correspond to each other. This exercise has not been
carried out by the plaintiffs. The trial Court has not
considered this aspect of identification and therefore has
gone wrong in holding that survey no. 280/3 forms part of
the property of the plaintiffs. The first Appellate Court, in
my considered view, has rightly observed that it is not
understood as to on what basis, PW1 says that her 3/4th
portion is surveyed under survey nos. 280/3 and 280/2 as
there is no evidence of any expert thereby clarifying as
where the boundary of 3/4th portion of plaintiffs ends and
from which point the boundary of 1/4th of the defendants
starts. The first Appellate Court has rightly held that the
plaintiffs have failed to show that their 3/4th portion
corresponds to survey nos. 280/3 and 280/2 (which portion
is not in dispute).
19. Insofar as the cross objection is concerned, it24
pertains to the counter claim of the defendants. In this
counter claim, it was the case of the defendants that by
virtue of the sale deed dated 21/1/29, they are owners of
survey no. 280/3 and part of survey no. 280/5. There is no
dispute in respect of the survey no. 280/5. But, the
defendants have prayed for declaration that they are
owners of survey no. 280/3. There is no evidence on record
to prove that the property described in the sale deed dated
21/1/29, which is at Exhibit DW1/A corresponds to survey
no. 280/3 and part of survey no. 280/5. The trial Court has
held that the defendants have failed to prove their title to
survey no. 280/3 and they have also failed to prove that
they are in adverse possession thereof. The learned first
Appellate Court has not reversed the finding of the trial
Court that the defendants have failed to prove their title to
survey no. 280/3. Hence, even if the counter claim is not
barred by the law of limitation, the defendants also cannot
succeed.
20 In view of the discussion supra, the learned first
Appellate has rightly dismissed the suit and the counter
claim. There is no merit in the Second Appeal as well as25
Cross Objection. No interference is called for with the
impugned judgment and decree.
21. In the result, the Second Appeal and the CrossObjection are both dismissed, however, with no order as to
costs.
U.V. BAKRE,J.
MV
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