In the case of "Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (Dead) through L.R.s" (supra), it has been held by the Apex Court that truth must be foundation of justice and Judges should not sit as mere umpire during trial but should play an active role to find out truth. It has been held that in an action for recovery of possession of immovable property, or for protecting possession thereof, upon legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. It has been further held that wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. It would be imperative that one who claims possession must give the following below:
(a) Who is or are the owner or owners of the property;(b) Title of the property;(c) Who is in possession of the title documents;(d) Identity of the claimant or claimants to possession;(e) The date of entry into possession;(f) How he came into possession whether he purchased the property or inherited or got the same in gift or by any other method;(g) In case he purchased the property, what is the consideration, if he has taken it on rent, how much is rent, license fee or lease amount;(h) If taken on rent, license fee or lease then insist on rent deed, license deed or lease deed;(i) Who are the persons in possession/occupation or otherwise living within him, in what capacity; as family members, friends or servants etc.;(j) Subsequent conduct, i.e., any event which might have extinguished his entitlement to possessions or caused shift therein; and(k) Basis of his claim not to deliver possession but continue in possession.
IN THE HIGH COURT OF BOMBAY AT GOA
Decided On: 08.03.2013
Francisco Xavier Ferrao
Vs. Filomeno Bonifacio de Viera Menezes and Ors.
Coram:U.V. Bakre , J.
Citation:2013(3)ABR412,MANU/MH/0226/2013
1. The present appeal arises out of judgment, order and decree dated 6/8/2005 passed by the learned Adhoc Additional District Judge, FTC-I (trial Court, for short), in Civil Suit No. 92/2004 (New) or Regular Civil Suit No. 47/1997/II Addl. (Old). The appellants were the plaintiffs and respondents were the defendants, in that Suit. The parties shall hereinafter be referred to in the manner in which they appear in the cause title of the said civil suit.
2. The original plaintiff had filed the said suit for permanent injunction and mandatory injunction. The first prayer was to restrain the defendant no. 1, his family members, agents and servants from trespassing into the suit property or doing any tapping of the coconut trees or interfering with the same, in any manner. The second prayer was to direct the defendant no. 2 to remove the pots from the coconut trees standing in Chalta No. 7 of P.T. Sheet No. 148 of Margao City Survey presently being tapped by defendant no. 1 illegally and further to direct defendant no. 2 not to issue Excise licence to the defendant no. 1 or any other person for tapping the trees from the suit property without written consent of the plaintiff.
3. The case of the plaintiff, in short, is as follows:
The original plaintiff is owner in possession of the suit property situated at Mungul Grande within the jurisdiction of Municipal Council of Margao bifurcated into two parts on account of Margao-Colva road and each part is separately recorded in the Revenue Office of Salcete at Margao. The portion lying on the northern side bears Matriz no. 1824, whereas that lying on the southern side bears Matriz no. 1645. The northern side portion is bounded on the east by the property of Marcelino Gomes presently in occupation and enjoyment of Hamish B. Gomes; on the west by the property of Comunidade of Margao; on the north by the property of Paulo Santano Rodrigues and Anastasio Francisco Santana Godinho presently owned by Pundalik Gurudas Caro and on the South by public road Margao-Colva. This portion is surveyed under chalta no. 7 of P.T.S. No. 48. The southern portion of the suit property is bounded on the east by the property of said Marcelino Gomes presently in occupation and enjoyment of said Hamish Gomes; on the west by rivulet; on the north by the said road Margao-Colva and on the south by rivulet. This southern portion is surveyed under chalta no. 7 of P.T.S. No. 149. A portion of the property of Marcelino Gomes presently enjoyed by Hamish Gomes is included in chalta no. 7 of P.T. Sheet No. 149 in respect of which necessary correction in survey records has been sought and there is otherwise no dispute between the plaintiff and the said Hamish Gomes.
4. The suit property is pre-dominantly a coconut grove and there is a house of one Vassudev Vithal Mandrekar in the southern portion who is the Watch and Ward of the said property. The suit property originally belonged to late Ana Luiza Rebello alias Isan Rebello who died without any direct heirs and plaintiff is the grand son of one Sergula Senhorinha de Piedade Rebello who was the sistder of said Ana Luiza Rebello. By virtue of Deed of Succession dated 4/6/1986, Ana Palmira de Sa inherited half of the suit property, amongst other properties whereas the other half was inherited by the children of late Lucia de Sa de Menezes, including the plaintiff. Ana Palmira de Sa and Lucia de Sa were sisters of Antonio de Sa and Eustaquia de Sa. By Deed of Assignment of unascertained rights, the plaintiff, his brothers and sisters relinquished all their rights to the properties inherited by them in favour of Palmira De Sa. By Will dated 31/10/1986, the said Palmira De Sa bequeathed the suit property to the plaintiff and said Palmira De Sa died on 1/8/1994 and since then the plaintiff is in enjoyment of the suit property as owner thereof.
5. During the life time of late Palmira De Sa, she used to grant permission to the defendant no. 1 for tapping of coconut trees from the suit property and the licence was valid for one year and unless it was renewed, the first defendant had no right to tap the coconut trees. After the death of Palmira De Sa, the plaintiff stopped granting permission, for tapping coconut trees, to the first defendant, but the defendant managed to obtain excise licence for tapping without the plaintiff's authority and in May 1996, the plaintiff got the pots from the coconut trees broken, which were illegally tapped by the first defendant. However, the defendant no. 1 again started tapping 10 coconut trees from the northern side of the suit property and this was noticed by the plaintiff during the plucking of coconut trees in March 1997. The defendant no. 1 is residing in the property of said Hamish B.F. Gomes who has already filed a suit for demolition of the structure where the defendant resides since the same was erected without permission. Despite being warned to discontinue illegal tapping in the suit property, since the defendant no. 1 continued tapping of the trees, the plaintiff filed the suit.
6. The defendant no. 1 contested the suit and filed written statements alleging as follows:
The defendant no. 1 is in uninterrupted possession by prescriptive title for the last 38 years and the present suit has been filed by the plaintiff in collusion with Mr. Hamish B. Gomes against whom he has filed a suit before the Civil Judge, Senior Division at Margao bearing Special Civil Suit No. 355/96/B. Defendant no. 1 is in peaceful possession and enjoyment of the suit property without interference from any person since the time of death of Ana Luisa da Piedade Rebello by prescriptive title as defendant no. 1 was looking after her during her old age by tapping and plucking coconuts from the suit property. Only a small portion on the northern side of suit property is surveyed in the name of Palmira De Sa, whereas the remaining portion is surveyed in the name of Arthur Gomes and that an application for correction of survey records has been filed by the plaintiff, but no order has been passed by the survey authorities. It is defendant no. 1 who has planted the coconut saplings and has taken care of them by watering them in summer season and protecting them from stray animals. Said Vassudev Vithal Mandrekar is a mere trespasser in the suit property and has no right to the said house. The alleged Deed of Succession dated 4/6/1986 cannot be relied upon as Palmira de Sa and others had no right to the suit property since the same was gifted to defendant no. 1 by Ana Luisa Piedade Rebello by private deed dated 7/7/1959, and since then the possession of the suit property is with defendant no. 1. By the said private deed, late Ana Luisa Piedade Rebello, in her own hand writing, in the presence of two witnesses, bequeathed the suit property to defendant no. 1, which deed could not be registered as said Ana was bed ridden. Defendant no. 1 is in open, peaceful and lawful possession of the suit property for last 30 years by virtue of adverse possession and the deed of assignment of unascertained rights executed by the plaintiff and others is a forged document. The defendant no. 1 has lodged two complaints dated 18/12/1980 and 21/11/1983 against Palmira de Sa for trespassing into the suit property. Said Palmira de Sa never granted permission to the defendant no. 1 and he used to sign challans as owner of the property while applying for permission to tap coconut trees. He never stopped tapping the trees after the death of said Palmira. The plaintiff is a rank trespasser in the suit property who had never visited the same after death of said Palmira.
7. The plaintiff examined himself and three witnesses namely Pundalik Gurudas Kare, Silvestre Afonso and Minika Vassudev Mandrekar whereas defendant no. 1 examined himself and one Reginaldo Antonio Jose Trindade and one Nazareth Costa. Thereafter, with the permission of the trial court, the plaintiff examined himself in rebuttal.
8. Upon analysis of the entire evidence on record, the learned trial Court found that the Matriz certificates at Exhibit C-21, Form B of Chalta No. 7 of P.T. Sheet No. 148 at Exhibit C-22, death certificate of Ana Palmira de Sa at Exhibit C-24, the Deed of Succession dated 4/6/1986 at Exhibit C-25, Deed of Relinquishment dated 31/10/1986 at Exhibit C-26, the Matriz certificates bearing nos. 1824 and 1645 standing in the name of the deceased plaintiff and the Will dated 31/10/1986, are the documents which sufficiently prove the title and possession of the plaintiff in respect of the suit property. The trial Court further found that the oral evidence of PW. 1 was fully corroborated by his three witnesses, in material particulars. It was found that the stand taken by the defendant no. 1 was inconsistent with his pleadings. It was also found that the defendant no. 1 had taken stands contrary to one another. Insofar as the oral evidence is concerned, the trial Court found that the evidence of defendant no. 1 (DW. 1) was full of falsity and contradictions. He held that none of the documents produced by defendant no. 1 help him to prove his right or interest to the suit property. The evidence of DW. 2 and DW. 3 was found to be unreliable. The plaintiff was held to have fully established his exclusive title to the suit property and also possession. The suit, therefore, came to be decreed in toto and with costs. The defendant no. 1 is aggrieved by the impugned judgment and decree and has filed the present appeal.
9. Miscellaneous Civil application No. 669/2011 has been filed by defendant no. 1 for leave to produce on record the ordinary copy of order dated 26/8/2005 passed by the Joint Mamlatdar-III of Salcete at Margao, in Misc. Application No. 1/2005. The defendant no. 1 has alleged that the Joint Mamlatdar-III of Salcete at Margao in Tenancy Case No. TNC/19/1998/JM/II has passed an order restraining the legal heirs of the plaintiff from interfering in the suit property vide order dated 26/8/2005. According to defendant no. 1, the said order has a direct bearing on the outcome of the present appeal in view of the provisions of Agricultural Tenancy Act and in view of the issues raised in the present appeal about possession of the suit property.
10. The legal representatives of the deceased plaintiff (hereinafter referred to as plaintiffs) have filed a reply to the said application of defendant no. 1 filed under Order 41 Rule 27 of C.P.C. They have resisted the application. It is alleged that there is no record of any order, ex-parte or otherwise, having been passed in the said case No. JM-III/TNC-Misc./1/2005. The said document even otherwise has come into existence after passing of the impugned judgment and decree in the present appeal and the same is totally extraneous to the subject matter of the appeal. In the said application for temporary injunction dated 26/8/2005, the defendant no. 1 had not even whispered about the impugned judgment and decree.
11. Heard the learned counsel for the parties.
12. Learned counsel appearing on behalf of the defendant no. 1 submitted that the suit filed by the plaintiff was for permanent and mandatory injunction and that in such a suit it is only possession which matters and title cannot be an issue, though it may arise incidentally or collaterally. He relied upon " Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs. and Others" [MANU/SC/7376/2008 : (2008) 4 SCC 494] in support of his contention that in a suit for permanent injunction the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and that the defendant tried to interfere or disturb such lawful possession. He also relied upon the case of "Shekoji Bhimrao & Ors. Vs. Motiram Maruti Maratha & Ors. [MANU/MH/1057/2006 : 2007 (2) Bom. C.R. 164]. He invited my attention to the evidence of PW. 4 wherein she has stated that the first defendant was plucking the coconuts in the suit property which he stopped for the last 6-7 years and that previously he was also doing cleaning work. He also pointed out that PW. 4 has further stated that in the year 1981 when aunty of the plaintiff visited the property there was dispute between her and the first defendant and thereafter she did not come. The learned counsel submitted that the above deposition of PW. 4 indisputably establishes the first defendant's possession of the suit property, as on the date of filing of the suit. He submitted that the said aunty of the plaintiff died in 1994 and since from 1981 to 1994, the plaintiff had never entered the suit property, it was for the plaintiff to establish that he took over the possession from the defendant no. 1. According to the learned counsel, there are neither pleadings nor evidence with regard to taking back of possession. The grievance of the learned counsel appearing on behalf of the defendant no. 1 is that the entire focus of the learned trial Court was on title and not on possession, though the focus ought to have been on possession. He submitted that the issue no. 1 was in two parts, namely, title and possession and therefore, even if title was proved that does not mean that possession is also proved. He further submitted that the present position is that defendant no. 1 has filed an application u/s. 8-A of the Goa, Daman and Diu Agricultural Tenancy Act, which is pending and in the said case no. JM/III/TNC/Misc./I/2005, the plaintiffs have been restrained from interfering with the suit property until further orders. He submitted that in terms of the Tenancy Act, Civil Court has no jurisdiction in the matter. He, therefore, prayed that the Miscellaneous Civil Application as well as the Appeal be allowed.
13. On the other hand, learned counsel appearing on behalf of the plaintiffs, at the out set, submitted that the Misc. civil application for leave to produce the additional document is an abuse of the process of law since the alleged ex-parte order, if any, was obtained without disclosing about the impugned judgment and order. He pointed out that what is produced on record is a true copy of the application along with the order, but the order does not bear the signature of the Mamlatdar, who allegedly has passed the said order. He, therefore, submitted that the said Misc. civil application is bound to be rejected. He further submitted that in a suit for injunction, the nature of possession to be proved depends upon nature of claim. He submitted that admittedly, the first defendant was tapping some coconut trees for toddy and this can never amount to possession of the property. Tapping of the trees is always done by way of a licence given by the owner of the trees. He submitted that the defendant no. 1 has taken various stands which are contrary to each other. He pointed out that the defendant no. 1 had filed Mundkar Case No. 18/1998 against the plaintiff and had described the property wherein his dwelling house was constructed as surveyed under chalta no. 1 of P.T.S. No. 149 and Chalta no. 7 of P.T.S. No. 148 and had stated that the plaintiff is the bhatkar of the said property. He further pointed out that the defendant has also claimed to be the owner of the suit property by way of uninterrupted possession for the last over 38 years by prescriptive title. He further pointed out that the defendant has also claimed title to the suit property by way of adverse possession on the ground that he is in open, peaceful and lawful possession of the suit property for the last over 30 years. He submitted that the defendant has not stopped here, but has also claimed to be owner of the suit property by virtue of a Gift Deed dated 7/7/1959 executed by Ana Luisa Piedade Rebello. He further submitted that presently the defendant is claiming to be an agricultural tenant of the suit property. According to him, all the above pleadings are self destructive and, therefore, the defendant cannot prove to be in possession of the suit property, since the defences are taken as hit and fit.
14. Learned counsel appearing on behalf of the plaintiff further submitted that title of the plaintiff to the suit property is established beyond doubt since Ana Luisa Piedade Rebello was admittedly the owner and there are on record the documents, namely, the Deed of Succession dated 4/6/1986, Deed of Assignment and the Will dated 31/10/1986. He submitted that the first defendant has no locus to challenge the said Deed of Assignment and it is only the purported heirs of Ana Luisa Rebello who could have challenged the same. He further submitted that looking at the tenor of arguments advanced by the learned counsel on behalf of defendant no. 1, it can be certainly said that there is no dispute about the title of the plaintiffs, since the arguments of defendant no. 1 are only on possession. He has invited my attention to the Matriz documents which have been produced on record, which show that they were initially in the name of the predecessor in title of the plaintiff and now in the name of the plaintiff and further that the Form No. I and XIV which is at Exhibit C-22 is in the name of plaintiff. He submitted that by virtue of section 105 of the Land Revenue Code, the plaintiff is to be presumed to be in possession, unless the first defendant proves the contrary. He argued that the defendant no. 1 has failed to prove the title and therefore, the presumption holds good for proving the possession of the plaintiff. He pointed out that the defendant no. 1 had filed objections before survey authorities, but the same were dismissed. He submitted that some portion of the suit property was previously acquired and compensation was paid to Dr. Antonio, the brother of the said Palmira. He, therefore, submitted that the plaintiff has proved the possession by way of legal documents. He further submitted that admittedly the house of Vasudev Vithal Mandrekar is situated in the suit property. He took me through the evidence of PW. 4, who is the wife of said Vasudev Mandrekar, who has stated that she has been staying in the southern part of the suit property as mundkar and that the owner of the same was Palmira De Sa who was doing plucking of said coconuts from the said property until her death, which occurred sometime in the year 1994. He invited my attention to the written statement of defendant no. 1 wherein he has pleaded that the said Vasudev V. Mandrekar is a mere trespasser in the suit property and has no right to the said house. He then pointed out from the cross examination of DW. 1 that he has stated that Vassudev Mandrekar is mundkar of Ana Piedade and that after the death of Ana Piedade, he became the bhatkar of said Mandrekar. He submitted that merely because PW. 4 has stated that the defendant was plucking coconuts in the suit property and was also doing cleaning work and that on account of some dispute, the aunty of the plaintiff stopped coming to the suit property, that does not prove the possession of the defendant with regard to the suit property. He submitted that the total effect of evidence of PW. 4 has to be considered. According to him, in fact, due to old age, aunty of the plaintiff had stopped coming to the suit property, as stated by PW. 4. He further submitted that the alleged Gift deed of 1959 was not initially produced in the suit, but had surfaced in Regular Civil Suit No. 131/1984, which was filed by Hamish Gomes against the defendant no. 1. He pointed out that the said Gift deed is not a registered document and when it was produced in the R.C.S. No. 131/1984, it was signed by Ana Luisa only, but when it came in the present suit, it was found to be signed by two witnesses. According to him, therefore, the Gift deed is totally a fabricated document. He contended that incidents of some sporadic cases of possession or of clandestine cases cannot be taken as settled possession of a property. He submitted that a perusal of the evidence produced by the plaintiff brings out a ring of truth on record. He, therefore, submitted that in this particular case, the defendant has totally failed to prove his possession and, therefore, the suit was rightly decreed with costs. He submitted that no interference at all is called for with the impugned judgment and decree.
15. Learned counsel appearing on behalf of the plaintiffs has relied upon the following judgments:
(i) "Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeira (Dead) through L.Rs" (MANU/SC/0225/2012 : 2012 AIR SCW 2162).(ii) "Anathula Sudhakar V. P. Buchi Reddy (dead) by L.Rs & Ors." (MANU/SC/7376/2008 : AIR 2008 SCC 2033).(iii) "Maria Colaco & Anr. V. Alba Flora Herminda D'Souza & Ors. (MANU/SC/7170/2008 : AIR 2009 SC 1965).(iv) 'Parkasho Devi and ors. Vs. Tarsem Lal and anr." (MANU/PH/1005/2002 : AIR 2003 P&H 2450).(v) "M/s. Kamakshi Builders V. M/s. Ambedkar Educational Society & Ors." (MANU/SC/2681/2007 : AIR 2007 SCC 2191).
16. I have carefully perused the entire material on record and considered the submissions made by the learned counsel for the parties and the various judgments relied upon by them.
17. Insofar as the Misc. Civil Application no. 669/2011 is concerned, I am of the view that the same cannot be allowed. It is seen that the document which is sought to be produced and relied upon is a xerox copy of the alleged application containing order dated 26/8/2005 passed by the Joint Mamlatdar-III. A perusal of the said xerox copy reveals that there is no signature of the Jt. Mamlatdar-III below the said order. Such a document, therefore, cannot be termed as genuine document and on this ground alone the application deserves to be dismissed. Further, as has been rightly submitted by the learned counsel for the plaintiffs, defendant no. 1 had not pleaded that he is an agricultural tenant of the suit property in the written statement filed in the suit. There was no issue of agricultural tenancy. It is rightly submitted by the learned counsel for the plaintiffs that in the said application filed before the Jt. Mamlatdar, the defendant no. 1 did not disclose about the impugned judgment and decree passed in the suit. The said application (JM-III/Misc/1/05) has been admittedly filed after the passing of impugned judgment and decree. Therefore, the same is totally extraneous to the subject matter of the present appeal. I am not inclined to consider the same. Therefore, the M.C.A. No. 669/2011 is dismissed.
18. The point that arises for determination is whether the plaintiffs have proved that they are the owners in possession of the suit property or whether the defendant no. 1 has succeeded to prove his legal possession.
19. As been rightly submitted by the learned counsel for the plaintiffs, the plaintiffs have succeeded in proving their title to the suit property. Indisputably, the suit property originally belonged to late Ana Luisa Rebello. By a deed of succession dated 4/8/1986 produced by PW. 1 as Exhibit 25, the suit property was inherited by Palmira de sa and by children of her sister, Luisa de Sa in equal shares. Original plaintiff was one of the seven children of said Luisa de Sa. By deed of assignment of unascertained rights dated 31/10/1986 produced by PW. 1 at Exhibit 26, the original plaintiff, his brothers and sisters had relinquished all their rights to the property inherited by them in favour of said Palmira De Sa. PW. 1 has produced on record Will dated 31/10/1986, as Exhibit 33, by which said Palmira De Sa bequeathed the suit property in favour of the original plaintiff. The death certificate of said Ana Palmira De Sa is at Exhibit 24 and she died on 1/8/1994. The death certificates of Maria Antonio Lucia Victoria de Sa e Menezes, Antonio Sa and Eustaquia de Sa are parts of Exhibit 51-colly, produced by defendant no 1. The birth certificates of Ana Palmira, Ana Petronila do Sagrado Coracao de jesus Menezes, Francisco Xavier Bossuet Santa Rita de Menezes, Caetano Camilo de Menezes, Lucia Terezinha de Menezes, Maria Bernardete Lourdes de Menezes, Filomeno Bonifacio de Menezes (original plaintiff), and Roque Antonio Jesus Piedade Menezes are also produced by the defendant no. 1 and they are part of Exhibit 51-colly. Therefore, by virtue of the said Will after 1/8/1994, the original plaintiff became the owner of the suit property. PW. 1 has produced on record the Form-B of chalta No. 7 of P.T.S. No. 148 as Exhibit 22 showing that Palmira de Sa is the holder of the said property. DW. 1 in his cross-examination has admitted that the Government had acquired portion of property bearing Matriz no. 1824 towards both sides of the same. He denied that the amount of compensation was paid to Dr. Antonio de Sa. On account of the above denial, a true copy of the award was shown to DW. 1 wherein it has been mentioned that Dr. Antonio De Sa had claimed the amount and his name was shown having exclusively claimed the said amount. The said award is at Exhibit C-61.
20. A perusal of the evidence of PW. 2, Pundalik Kare who is the adjoining owner of the suit property reveals that the testimony of PW. 1 is wholly reliable as far as the suit property is concerned. Besides the above, PW. 3 Silvestre Afonso and PW. 4 Minika Mandrekar have also fully corroborated the testimony of PW. 1. Though in the written statement, the defendant no. 1 had admitted that PW. 4 and her family members are residing in the suit property, however, he had claimed that they were residing as trespassers. In the cross-examination of PW. 4, it has been suggested by the learned Counsel appearing in the suit for the first defendant that she is not residing in the suit property. However, it is pertinent to note that DW. 1 in his cross-examination has gone to the extent of saying that Mandrekar was the mundkar of Ana Piedade and after the death of Ana Piedade, DW. 1 has become the bhatkar of said Mandrekar.
21. The defendant has changed his colours like a chameleon from time to time. In the written statement itself he has taken different stands contrary to one another. Firstly, he claimed to be in uninterrupted possession of the suit property by prescriptive title for the last over 38 years. Subsequently, the said period of 38 years has been reduced to 30 years by alleging that he is in open, peaceful, lawful possession of the suit property for the last 30 years by virtue of adverse possession. Thirdly, the defendant claimed right to the suit property by virtue of Gift Deed dated 7/7/1959 alleging that Ana Luisa P. Rebello had gifted him the suit property by private deed. In his affidavit-in-evidence, DW. 1 has stated the same facts which are pleaded in the written statement. Thereafter, the evidence on record further reveals that the defendant no. 1 had even claimed to be the mundkar of the plaintiff in respect of suit property and subsequently it is also revealed that he claims to be the agricultural tenant of the suit property. The above defences are self destructive.
22. The defendant no. 1 has claimed that the suit property was gifted to him by Ana Luisa Piedade Rebello by private deed dated 7/7/1959. DW. 1 has produced the said Gift Deed as Exhibit 45. First of all, this is an unregistered private deed on a plain paper and was not executed before any competent authority, like notary. Though, admittedly, Ana Luisa Rebello was a spinster and knew Portuguese language, however, it is stated in this deed that Ana Luisa Rebello was a widow. Defendant no. 1 had filed Civil Suit No. 240/1975 against Hamish B. Gomes, wherein he claimed to be a mundkar, lessee or tenant of the suit property claiming that the suit property belongs to late Antonio D'sa. He further claimed that Antonio D'sa had advised him to take care of the property. He claimed that the defendant-Hemes Gomes is the owner of adjacent property. The copy of the plaint is at exhibit 57. However, admittedly, in that suit the defendant no. 1 did not rely upon and produce the said deed of gift dated 7/7/1959. Thereafter, the defendant no. 1 filed Regular Civil Suit No. 238/1981/A against the same Shri Hamish B. Gomes. In this suit, the defendant no. 1 claimed that the suit property belongs to Ana Luisa Piedade Rebelo who died in August 1960 and that after her death, the said property was being managed by Antonio de Sa who installed the defendant no. 1 in that property, to construct a house and stay therein as mundkar and to look after the property as tenant. The plaint in this suit is at Exhibit 58. Here also, the defendant no. 1 did not rely upon or produce the said deed of gift dated 7/7/1959. An explanation has been given by DW. 1 that he had not filed the said gift deed in those court cases in the year 1975 and 1981 or in any year prior to 1984 as he could not find it. Nothing had prevented the defendant no. 1 to have pleaded about his ownership by virtue of the said gift deed in those suits filed prior to 1984, and stating that the document cannot be traced. For the first time, the defendant no. 1 sought to produce a copy of this deed of gift in Regular Civil Suit No. 131/1984, by way of an application dated 7/2/2000. However, the said application was rejected by the learned Civil Judge Junior Division since there were no signature of witnesses in the said document. But, the deed of gift now produced in the present case bears signature of two witnesses. There is absolutely no need to discuss any more on the said gift deed dated 7/7/1959, which can certainly be termed as manipulated and fabricated, as has been rightly held by the trial Court.
23. DW. 1, the defendant no. 1, has admitted in his cross-examination that in the mundkar case no. 18/1998 filed by him against the plaintiff, he has described the property wherein his dwelling house is constructed as being surveyed under chalta no. 1 of P.T.S. 149 and chalta no. 7 of P.T.S. no. 148 of Margao and that plaintiff is the bhatkar of the said property and that he used to do work for the said bhatkar. This application for declaration as mundkar is at Exhibit c-53/P. In this application, defendant no. 1 has claimed that he is mundkar of the dwelling house and agricultural tenant of the entire property.
24. Further, in his cross-examination, DW. 1 has admitted that he has also instituted a case against plaintiff for declaring him as a tenant of the property bearing chalta no. 7 of P.T.S. no. 148 and chalta no. 7 of P.T.S. no. 149. The copy of this application dated 29/4/1998 registered as Tenancy Application No. 19/98 is at Exhibit c-56/P. Neither in the written statement nor in his affidavit-in-evidence dated 17/7/2004, the defendant claimed the agricultural tenancy. No issue was framed by the trial Court on the tenancy and jurisdiction of the Civil Court. From the various self destructive claims made by the defendant no. 1, it can be said that there is no truth in his case. For the first time in appeal, the defendant cannot raise the question of jurisdiction. In the case of "M/s. Kamakshi Builders V. M/s. Ambedkar Educational Society & Ors.", reported in MANU/SC/2681/2007 : AIR 2007 S.C. 2191, the Apex Court has held that when the question with regard to jurisdiction of Civil Court has not been raised before the trial Court and no issue in this regard was framed, the same cannot be permitted to be raised for the first time in an appeal. Hence, there is no force in the contention that the Civil Court had no jurisdiction in the matter.
25. Merely because the defendant used to tap some coconut trees from the suit property that cannot mean possession of the suit property itself. Similarly, merely because it is stated by PW. 4 that the defendant no. 1 was plucking coconuts from the suit property and was also doing the cleaning work and that in the year 1981, when aunty of the plaintiff visited the property, there was dispute between her and the first defendant and since then she did not come there, does not amount to proving that the defendant is in lawful possession of the suit property. These are sporadic and clandestine acts, which cannot have any legal sanctity. The challans and receipts regarding payments of land tax, produced by DW. 1, as Exhibit C-46, C-47(colly) and C-48(colly) are all in the name of Ana Luisa de Menezes Rebelo. The certificate dated 29/4/1997 issued by Excise Inspector and produced by DW. 1 as Exhibit C-50 says that the defendant no. is tapping coconut trees from the property of Mrs. Ana Luiza de Piedade Rebelo from 1979 to 1997. As has been rightly observed by the trial Court, the evidence of DW. 1 is full of falsity and a scrutiny of the evidence of DW. 2 and DW. 3 reveals that they are not reliable.
26. I am of the view that the evidence on record, both oral and documentary sufficiently proves that the plaintiff has independently made out case of title and of possession, whereas defendant no. 1 has miserably failed to prove his lawful possession. In such circumstances, the judgments of the Apex Court in the case "Anathula Sudhakar" (supra) and of "Shekoji Bhimrao" (supra), do not help the defendant no. 1, but on the contrary help the plaintiff.
27. In the case of "Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (Dead) through L.R.s" (supra), it has been held by the Apex Court that truth must be foundation of justice and Judges should not sit as mere umpire during trial but should play an active role to find out truth. It has been held that in an action for recovery of possession of immovable property, or for protecting possession thereof, upon legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. It has been further held that wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. It would be imperative that one who claims possession must give the following below:
(a) Who is or are the owner or owners of the property;(b) Title of the property;(c) Who is in possession of the title documents;(d) Identity of the claimant or claimants to possession;(e) The date of entry into possession;(f) How he came into possession whether he purchased the property or inherited or got the same in gift or by any other method;(g) In case he purchased the property, what is the consideration, if he has taken it on rent, how much is rent, license fee or lease amount;(h) If taken on rent, license fee or lease then insist on rent deed, license deed or lease deed;(i) Who are the persons in possession/occupation or otherwise living within him, in what capacity; as family members, friends or servants etc.;(j) Subsequent conduct, i.e., any event which might have extinguished his entitlement to possessions or caused shift therein; and(k) Basis of his claim not to deliver possession but continue in possession.
28. In view of the above, the impugned judgment, order and decree is in accordance with the settled principles of law. The appeal has no substance and no interference at all is warranted with the impugned judgment and decree. Hence, the appeal is dismissed, with costs.
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