contended that in terms of Section 91 of the Evidence Act, oral
evidence with respect to the said auction sale in order to
establish that the auction sale is not only of the property
registered under no. 27202 but also in respect of 1/5th of the
property registered under no. 29845, is not admissible. On the
contrary, the contention of Mr Usgaonkar, learned Counsel for
the plaintiffs is that in respect of auction sale no document was
required to be executed by the Court and therefore Section 91 of
the Evidence Act does not bar such evidence. He relied upon the
Judgment of Division Bench of Patna High Court in the case of
“Tribeni Prasad Singh Vs. Ramasray Prasad Chaudhury”,
reported in A.I.R. 1932 Patna 80. In the case supra, the learned
Division Bench has observed that Section 65 of Civil. P.C. says
that where immovable property is sold in execution of a decree
and such sale has become absolute, the property shall be
deemed to have vested in the purchaser from the time when the
property is sold and not from the time when the sale becomes
absolute. It has been held that it is clear that the title of the
auction-purchaser is derived from the sale and not from the sale
certificate. It has been further held that the sale certificate is
merely evidence of title of the auction-purchaser and not the
title deed in the sense that the title is conveyed or created by it.
It is further observed that the word “sale certificate” itself
denotes that it is only a certificate by the Court that the auctionpurchaser
has purchased the property. It is further observed
that no provision of law has been placed before the Court to
show that the title of the auction-purchaser is derived from the
sale certificate. In the case supra, mortgaged property was
purchased by the decree holder in execution proceedings but no
sale certificate was obtained nor any document of delivery of
possession under Rule 95 or order XXI of C.P.C. was applied for
and obtained. In terms of Rule 94 of Order XXI of C.P.C., when
a sale of immovable property has become absolute, the Court
shall grant certificate specifying the property sold and the name
of the person who at the time of sale is declared to be the
purchaser and such certificate shall bear the date the day on
which the sale became absolute. An omission to obtain the
certificate does not destroy or take away the title of the
purchaser and the purchaser in such case can prove his title and
purchase by evidence aliunde. But when there is order of
confirmation of sale, the production of the same is sufficient to
prove the title of the auction-purchaser. The certificate of sale
may not by itself create title but is certainly evidence of title.
The facts and circumstances in the case of “Tribeni Prasad
Singh” (supra) are different. The ratio in the said judgment
does not apply to the facts of the present case. In the present
case, the property was not purchased in execution proceeding
and hence the provisions of order XXI of C.P.C. would not apply.
Auction was held in a Partition Suit No. 3450/1964. The said
document of auction proceedings was signed by Dr. Eurico Das
Dores Santana Da Silva, the learned Civil Judge Senior Dicision;
by Mr. Abel Agnelo Da Piedade Noronha, the Escrivao/Clerk of
that Court; by Mr. Antonio Coelho, the bailiff of the Court and by
the purchasers namely Maria Purificacao Jesuina Consolacao
Miranda Gomes and Soter Paulo Menino Gomes. It is stated in
the said document of auction proceedings that the said written
proceedings are being sent to Land Registration Office in terms
of the law. The document further shows that on 25/08/1972, the
executing parties namely Maria Jesuita Miranda Gomes and her
husband Soter Paulo admitted execution of the so-called
certificate of sale, before the Sub-Registrar, Salcete. On
26/09/1972, the execution of the said document of auction-sale
has been registered in the Land Registration Office of Salcete
under No. 1371 of Book No. 1, Vol. 99 at pages no. 335 to 340.
Section 91 of the Evidence Act, inter alia, provides that in all
cases in which matter is required by law to be reduced to the
form of a document, no evidence shall be given in proof of such
matter except the document itself, or secondary evidence of its
contents in cases in which secondary evidence is admissible
under the provisions herein before contained. In my view, the
learned First Appellate Court has rightly held that on account of
Section 91 of the Evidence Act, oral evidence in respect to the
auction sale in order to show that the auction sale was not only
in respect of the property registered under no. 27202 and
matriz no. 345 but also in respect of the property bearing
registration no. 29845 and matriz no. 344, is not admissible.
Hence the substantial question no. (1) above is answered in the
negative i.e. against the plaintiffs.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 85 of 2009
Smt. Dea Lima Gomes Alemao,
Versus
Smt. Aurora Silva e Diniz,
CORAM :- U. V. BAKRE, J.
Reserved on : 8thAugust, 2014.
Citation; 2016(3) ALLMR183
Heard Mr. Usgaonkar, learned Counsel appearing on
behalf of the appellants and Mr. Almeida, learned Counsel
appearing on behalf of the respondents no. 1 to 4.
2. This Second Appeal arises out of the judgment and
decree dated 24/10/2008 passed by the learned District Judge-4,
South Goa, Margao (First Appellate Court, for short) in Regular
Civil Appeal No. 135/2000. The said Regular Civil Appeal was
filed against the judgment and decree dated 29/04/2000 passed
by the learned Civil Judge, Junior Division, Margao (trial Court,
for short) in Regular Civil Suit No. 247/1973/F. The said suit was
decreed by the trial Court but dismissed by the First appellate
Court.
3. The appellants no. 1 and 2 and respondents no. 5 to 15
are the legal representatives of the original plaintiffs no. 1 and 2
whereas the appellants no. 3 and 4 were the plaintiffs no. 3 and
4 in the said suit. The respondents no. 2 to 4 are the legal
representatives of the deceased defendant no. 1 and the
respondent no. 1 was the defendant no 2 in the said suit. As per
their status in the said suit, the appellants no.1 to 4 and
respondents no. 5 to 15 shall herein after, for the sake of
convenience, be referred to as the plaintiffs whereas the
respondents no. 1 to 4 shall, hereinafter, be referred to as the
defendants.
4. The original plaintiffs had filed the said suit for
declaration that rustic urban property encircled by walls is the
property purchased by plaintiff no. 2 in judicial auction and the
same belongs to her and to no other person and for direction to
the defendants to recognize that the property sold in judicial
auction and purchased by plaintiff no. 2 consists of one of the
properties registered in the Land Registration Office under No.
27202 and the land comprising 1/5th part of the property
registered under matriz no. 344. An injunction was also sought
for directing the defendants not to enter into the walled
compound and not to enter and remain in the property limited by
the said encircling compound wall or any part thereof. An
injunction was also sought to restrain the defendants, etc. from
doing any work in the said property and more particularly, in the
adjoining room.
5. Case of the original plaintiffs, in short, was as follows:
In an auction held on 17/08/1972 in Suit No.
3450/1964, the original plaintiffs purchased rustic immovable
property with house, court yard and compound known as
“Zorodi” situated at Aquem, described in Land Registration
Office of Salcete Taluka under No. 27202 of new series and
bounded towards east by the property of the same name
belonging to the heirs of Avelino de Souza and Camilo da Costa;
on the west and south by mixed property of the same name
owned by Manuel Antonio Vaz and on the north by Nomixim
belonging to the heirs of Antonio Gabriel do Mergulhao.
Presently, the said property is bounded towards east by the
property of the same name “Zorodi” belonging to the heirs of
Valentim Coelho and Camilo da Costa and towards west by
property of Leao Constancio Diniz and Gregorio Taumatuga
Diniz. The said property is inscribed in the matriz records under
No. 345. The said property was inscribed in the Land
registration Office in the name of Leao Constancio Diniz of
Navelim as it was allotted to him in the inventory proceedings
which were initiated upon the death of Osmias Diniz and the
partition was decreed by Judgment dated 01/02/1904. To this
property was annexed 1/5th divided part of the property also
known as “Zorodi” which was sold by Elias Cosmos de Barros
and his wife Maria Ermelia Esmeralda da Piedade Vaz to
Lucrecia Purificacao Colaco, widow of Antonio Belarmino Diniz,
by Deed dated 14/02/1912 executed by a Notary, namely Costa
of Margao. Said Lucrecia Purificacao Colaco and Antonio
Belarmino Diniz were the parents of said Constancio Diniz. The
said 1/5th part is bounded towards east by the property of Pedro
Joaquim Peregrino da Costa e Joao Cipriano Diniz; towards north
by the property of the heirs of pe. Cirizeo Diniz; towards south
by the property of Preciesa Gomes; and towards west by the
remaining 4/5th part belonging to the sellers. The property
purchased by deed dated 14/02/1912 corresponds to 1/5th of the
property inscribed in matriz records under No. 344. In the
margin of the said deed dated 14/02/1912, Leao Constancio
Diniz had written “this part is included in the other Zorodi,
presently this Zorodi is already registered in the name of Leao”.
After the purchase of the said 1/5th made under the deed of 14th
February 1912, the original property with this new acquisition
was encircled by laterite stone wall which was on the east, west
and south and not to the north since this side is bounded by
Paddy field or Nomoxim, the level of which is more than one
metre below the said property and this was done during the
period between 1912 and 1916. The said property under No.
27202 and property consisting of 1/5th of the property registered
in matriz records under No. 344 became a single and distinct
property unit from the time of purchase made in 1912 delimited
by boundary walls to the east, south and west and by paddy field
to the north as already stated above and the same has been
possessed for the last more than 60 years firstly by said Lucrecia
Colaco, then by Leao Constancio Diniz, then by his widow Maria
Virginia Purificacao Miranda Diniz and now by the plaintiffs
from the time of purchase in judicial public auction held on
17/08/1972. Beyond the said wall, the boundaries are: towards
east by the properties of Dr. Peregrino da Costa and others,
towards west by the property “Zorodi” consisting of 4/5th share
of the property registered under matriz no. 344 belonging to
Acurcio Diniz and his two brothers and towards south by that of
Precios e Gomes. By a deed dated 03/08/1925, Elias Cosmo
Barros and his wife sold to Leao Constancio Diniz the property
“Zorodi” which was bounded to the east by rivulet of
Comunidade registered in the matriz record under No. 344. This
property, therefore, lies to the west of the property purchased by
the deed dated 14/02/1912. In the Inventory Proceedings, which
took place on the death of Leao Constancio Diniz in the Court of
Judicial District in the second office, the house property
registered under Matriz No. 345 was described under Item No.
14 and the property Zorodi registered under Matriz No. 344 was
described under Item No.22. The above references to the matriz
numbers are, however, not correct. Actually, the house property
should have been described as matriz no. 345 plus 1/5th of the
property bearing matriz no. 344 and the property “Zorodi”
beyond the boundary wall should have been described as 4/5th of
the property bearing matriz no. 344. There was some opposition
from defendant no. 1 to the occupation of the suit property
purchased on 17/08/1972 and hence, plaintiff no. 2 was put in
possession by the Court of the suit property without any
objection from anyone on 26/04/1973. But by mistake one
adjoining room on the southern side within the compound,
consisting of two compartments one destined for toilet and the
other as godown for storing coconuts, firewood and timber, was
not specifically handed over at that time, but the same was
handed over judicially on 29/09/1973 without objection from
anyone. After having offered the possession, the plaintiffs put a
strong lock to the door of the said godown of coconuts, etc., but
immediately on the next day, at the instance of the defendants,
the pluckers forcibly destroyed the lock, opened the door and
plucked the purchased property and entered in the division of
the adjoining rooms, removed the tiles and were throwing the
rafters down and damaging and spoiling them. The plaintiffs
learnt that the defendants are intending to do the re-roofing and
to install themselves in the adjoining room, which was handed
over to the plaintiffs judicially as it is part of the property
purchased in judicial auction. Hence, the suit.
6. Subsequently, after filing the suit, the plaintiffs sold part
of the suit property to Shri Paul Baylon Fernandes by deed
dated 17/07/1974. Said Paul along with wife Smt. Luiza
Philomena Lourdes Martins Fernandes have been added as
plaintiffs no. 3 and 4. By way of amendment to the plaint, the
plaintiffs pleaded that the part sold to the plaintiff no. 3 is
separated on the eastern side, southern side and northern side
by the wall and on the western side by a row of stones. They
further stated that the original W.C. constructed by the original
owner, late Elias Cosme de Barros was situated in the part
which is retained by the plaintiffs no. 1 and 2 and the ruins of
the said W.C. were existing even very recently. It was further
added that due to the purchase, the plaintiffs no. 3 and 4 are in
possession and enjoyment of the part purchased by them and the
remaining part of the suit property is in enjoyment of the
plaintiffs no. 1 and 2. By further amendment to the plaint, the
plaintiffs pleaded that the property that was delivered to the
plaintiffs no. 1 and 2 is surveyed under Chalta no. 10 of P. T.
Sheet no. 285.
7. The defendants, by way of written statement, alleged as
under :
By auction held on 17/08/1972, 2/3rd share of the
property described in Conservatoria do Registo Predial under
no. 27202 of new series consisting of “predio rustico urbano com
seu quintal” was purchased by the plaintiffs and the same is
referred to as the suit property. The entire property under No.
27202 is bounded towards west and south by “predio rustico
urbano com seu pateos quintal” of Manuel Antonio Vaz presently
the property bearing matriz no. 345 belonging to the heirs of
Leao Constancio Diniz. It is false that 1/5th part of Zorodi
registered under matriz no. 344 was disannexed from the entire
property bearing matriz no. 344. The Sale executed on
14/02/1912 in favour of Lucrecia P. Colaco was never acted upon
with the result that the son of Lucrecia P. Colaco purchased the
said portion. The said 1/5th portion was and is part and parcel of
plot registered under matriz no. 344 and when the remaining
portion of the property bearing matriz no. 344 was purchased,
its identity with the said property bearing matriz no. 344 was
confirmed as parent property by registering the same as distinct
unit in the Land Registration Office under No. 29845. It is false
that in the margin of the deed dated 14/02/1912 any inscription
as alleged by the plaintiffs was made, by said Leao Constancio
Diniz. The said inscription is a forgery manipulated by the
plaintiffs in order to defraud the defendants. It is false that plot
bearing Land Registration No. 27202 and 1/5th of plot no. 344
became one distinct unit or got annexed to each other. On the
contrary, the said 1/5th portion became part and parcel of the
remaining 4/5th by virtue of public deed dated 03/08/1925, by
virtue of which purchase, Leao Constancio Diniz became the
sole owner and possessor of the entire 5/5th of the property
which whole property was registered under No. 29845 for the
first time in the Conservatoria do Registo Predial. The
construction of the boundary wall has nothing to do with the
alleged unification of the property. It is false that the property
surrounded by the boundary wall is bounded towards east by
the property of Dr. P. D. Costa, west by 4/5th of the property
under matriz no. 344 and south by that of Precioca Gomes. The
property in respect of which the plaintiffs acquired 2/3rd right is
bounded towards south and west by the property bearing matriz
no. 344 which is more particularly identified as property
mentioned in Verbs No. 22 in the Inventory Proceedings No. 133
of 1951. The property under matriz no. 344 is bounded towards
the east and south by boundary wall and west, by the rivulet and
the wall in the middle of the said property under matriz no. 344
merely separates the 'Patio Quintal Urbano' of Manuel Antonio
Rosario Vaz. It is false that in the Inventory no. 133 of 1951,
matriz numbers were not correctly stated. It is false that the
house property should have matriz no. 345 plus 1/5th of matriz
no. 344 and that the property Zorodi outside the boundary wall
should constitute 4/5th of the property under No. 344. The
property on the south and west of matriz no. 345 is always the
property registered under no. 29845 with an outhouse situated
in south east wing. The judicial possession of the property
purchased on 17/08/1972 has nothing to do with the disputed
outhouse. The plaintiffs are responsible and liable to be
punished for having illegally and fraudulently obtained the
possession not only of the property registered under No. 345,
but also for having obtained illegal possession of the outhouse
situated in the property no. 344, which admittedly, has not been
sold in auction. The said possession has been obtained by the
plaintiffs by having the defendants physically arrested under a
warrant obtained on a false and frivolous criminal complaint, for
which they were compelled to give a bond undertaking not to
enter the said premises. Hence, the suit be dismissed.
8. The learned trial Court framed the following issues :
“1. Whether the plaintiffs prove that they have
purchased the property “Morod” together with
house, courtyard and compound bearing land
registration no. 27202 and matriz no. 345 lying
within the boundaries as described in para 1 of
the plaint ?
2. Whether the plaintiffs prove that 1/5th
divided part of 'Zorodi' purchased by Lucrecia
Purificacao Colaco, widow of Antonio from Elias
Cosmos de Baros and his wife Maria Eremila
Esmeralda da Piedade Vaz, by a deed dated
14/02/1912 and lying within the boundaries as
described in para 4 of the plaint and bearing
matriz no. 344 has been annexed to the property
'Morod' purchased by the plaintiffs in Court
auction ?
3. Whether the plaintiffs prove that the said
property 'Morod' bearing matriz no. 345 and the
property 'Zorodi' have been amalgamated and
became a single property consequent upon
encircling both the properties by a laterite stone
wall on the east, south and west and paddy field
on the north some time in 1912 and 1916 and it is
being enjoyed as such for over 60 years by the
plaintiffs and their predecessor in title ?
4. Whether the plaintiffs prove that consequent
upon the purchase of the suit property 'Morod'
and 'Zorodi' as a single unit in the Court auction
on 17/08/1972, the possession therefore has been
given to them on 26/04/1973 and that of suit
godown on 29/09/1973 without any objection from
any one and that the suit godown is part of the
said judicially auctioned property ?
5. Whether the plaintiffs prove that on
30/09/1973 at the instance of the defendants, their
pluckers have forcibly entered, destroyed the lock
opened the door of the suit godown and plucked
the suit property purchased by the plaintiffs in
Court auction ?
6. Whether the plaintiffs prove that the
defendants are making attempt to occupy the suit
godown after re-roofing it ?
7. Whether the defendants prove that the suit
godown or contiguous rooms is an out-house
situated in plot no. 344 which has nothing to do
with the plaintiffs' auction purchase ?
8. Whether the defendants prove that the
plaintiffs have illegally and fraudulently obtained
possession not only of property registered under
no. 345 but also illegally obtained the possession
of the out house situated in the property no. 344
which was not sold in Court auction ?
9. To what relief, if any, are the plaintiffs
entitled?”
9. The plaintiffs examined the original plaintiff no. 2, namely
Maria Jesuina Miranda de Gomes as PW1; the plaintiff no. 3,
namely Paulo Fernandes as PW2; and Ezvy Pereira e Fernandes,
the niece of the plaintiff no. 2, as PW3. The defendants
examined the original defendant no.1, namely Guilherme Diniz
as DW1.
10. Upon consideration of the entire evidence on record, the
learned trial Court observed that the auction proceedings clearly
show that the entire property bearing land registration no.
27202 and not only 2/3rd of the same was purchased by the
original plaintiffs. The trial Court observed that admittedly, by
sale deed dated 14/02/1912, 1/5th of the property bearing matriz
no. 344 was purchased by the original owners of the property
bearing land registration no. 27202. It held that the defence of
the defendants that the said sale deed dated 14/02/2012 was
never acted upon appears to be unbelievable firstly because
there was no reason for not acting upon the same and secondly
there was no evidence produced by the defendants in support of
the said claim. The trial Court found that admittedly, the said
1/5th of the property bearing matriz no. 344 lies within the
boundary wall around the property bearing land registration no.
27202. The trial Court observed that there is absolutely no
logical explanation as to why portion of one property should be
included within the boundary wall constructed around another
property and the only explanation which can be there is that the
said portion was treated as part of the bigger property bearing
land registration no. 27202 and amalgamated with it. The trial
Court found that the defendants never objected for inclusion of
the said portion of the property bearing matriz no. 344 within
the property bearing land registration no. 27202. The trial Court
held that the property which was auctioned and handed over to
the original plaintiffs was entire property which was within the
compound wall. The trial Court found that the stone wall around
the said property was in existence for a long time and DW1 has
not denied the same. The trial Court held that the property
bearing land registration no. 29845 and matriz no. 344 is only
1/5th of the property “Zorodi and not the entire property. The
trial Court further found that the plaintiffs no. 1 and 2 purchased
the said property in auction dated 17.08.1972 and were given
possession of the same on 26.04.1973 whereas the possession of
the suit godown was handed over to them on 27.04.1973. The
minutes of handing over possession were not challenged by the
defendants. The trial Court held that in view of the handing over
of possession by the Court, the plaintiffs came to be in
possession of the entire property within the boundary wall. It
was established that the defendants had interfered with the suit
godown and even there was a Criminal Case No. 360/P/73 filed
in the Court of J.M.F.C., Margao regarding the said interference
by the defendants and their labourers. According to the trial
Court, the defendants failed to prove that the said godown and
the other room do not form the part of the distinct and separate
property which was purchased by the plaintiffs in auction. The
trial Court answered the issues no. 1 to 6 in the affirmative and
issues no. 7 and 8 in the negative. The suit was decreed.
11. The original defendant no. 2 and the legal
representatives of the deceased defendant no. 1 filed Regular
Civil Appeal No. 135/2000. The First Appellate Court formulated
the following point for determination:-
“Whether 1/5th of property bearing Matriz No. 344,
Land Registration No. 29845 formed subject
matter of the auction proceedings of 17th August
1972 ?”
The First Appellate Court, upon appreciation of the evidence on
record, found that as per Exhibit P-1, the certificate of Inventory
proceedings no. 133 of 1951, instituted by Virginia Purificacao
Miranda upon the death of Leao constancio Diniz, item no. 14
was 2/3rd of the property 'Zorody' bearing land registration no.
27202 and matriz no. 345 and item no. 22 was the property
'Zorody' bearing land registration no. 29845 and matriz no. 344.
The First Appellate Court further found that in the auction
proceedings dated 17/08/1972, the property auctioned was a
rustic and urban property with its compound known as 'Zorody'
situated at Aquem and bounded towards south by the property of
Manuel Antonio Vaz. It was found that as per Exhibit P-3, the
certificate of land registration and also the plan, the southern
boundary was the property of Manuel Antonio Vaz. The
contention of the plaintiffs was that in the year 1912, Lucrecia,
who is the mother of Leao, purchased 1/5th of the property
bearing matriz no. 344 which was to the west and south of the
property bearing matriz no. 345 and this 1/4th was amalgamated
with the property bearing matriz no. 345 by encircling it with
laterite stone wall. The First Appellate Court observed that if the
property in auction sale comprised of both the properties
bearing matriz no. 345 and 1/5th of matriz no. 344, then the
southern boundary would have been that of Preciosa e Gomes as
the said property of Prciosa is the southern boundary of the
property bearing matriz no. 344 and not that of Manuel Antonio
Vaz, which was the southern boundary of the property bearing
land registration no. 27202 and matriz no. 345, prior to
amalgamation. The plaintiff no. 2 who was the purchaser in the
auction proceedings, had not raised any objection in respect of
the southern boundary. The First Appellate Court observed that
in view of section 91 of the Evidence Act, oral evidence in
respect of the said auction sale to show that the auction sale is
not only for the property registered under no. 27202 and matriz
no. 345, but also for 1/5th of the property registered under no.
29845 and matriz no. 344, is not admissible. The First Appellate
Court also found that the statement of PW1 itself shows that the
plot, which is claimed by the plaintiffs to have been
amalgamated with the property bearing matriz no. 345, was
purchased by the defendant's father in the year 1925. The First
Appellate Court observed that if the sale in the year 1912 was
acted upon, then Leao could not have dealt with that part of the
property and could not have made the endorsement that ”this
part is included in another Zorody, now this Zorody is already
registered in the name of Leao”. It has been held that the fact
that such an endorsement was made would only establish that
the sale of 1912 was not acted upon. The First Appellate court
also held that in terms of Article 953 of the Portuguese Civil
Code, the fact that the said entire property bearing matriz no.
344 is shown registered in the land registration office in the
name of Leao, not only confers on him the title but also shows
that he is in possession of the said property. The First Appellate
Court found favour with the contention of the learned Counsel
for the plaintiffs that in a suit for partition of a property, the
property is auctioned only in case the same is indivisible and
hence if the 1/5th of the property bearing matriz no. 344 was
amalgamated with the property bearing matriz no. 345 and land
registration no. 27202, then the property could have been easily
divided and there would be no need for auction. The learned
First Appellate Court held that in the present case the auction
proceedings are very clear and unambiguous. The First
Appellate Court answered the above point framed by it in the
negative and allowed the appeal. In other words, the suit came
to be dismissed.
12. Aggrieved by the judgment and decree passed by the
First Appellate Court, two of the legal representatives of the
plaintiffs no. 1 and 2 and the plaintiffs no. 3 and 4 have filed the
present second appeal which has been admitted on 28/09/2011
on the following substantial questions of law:-
(1) Whether the appellate Court has
misinterpreted Section 91 of Indian Evidence Act
inasmuch as it is held that the evidence adduced
by the appellants to show that the auction sale
included 1/5th of the property 'Zorody' enrolled in
matriz no. 344 cannot be considered as admissible
evidence ?
(2) Whether the Appellate Court erred in law in
holding that the deed of Sale executed in the year
1912 by which Lucrecia purchased 1/5th of the
property under matriz no. 344 was never acted
upon because there is endorsement made by her
son Leao Constancio Diniz in that Sale Deed ?
On 08/08/2014, following additional substantial
question of law was framed:-
(3) Whether the Appellate Court was right in
holding that the possession of entire property was
given to the appellants in auction sale
proceedings, is not proved, when it was admitted
by the respondent in the proceedings that the
appellants were put in possession of the outhouse
in property under matriz no. 344 by the Court ?
13. The land registration inscription and description document
of no. 27202 (Exhibit P-3) shows that the property “Zorody”
inscribed in the name of Leao Constancio Diniz is a rustic and
urban property of the cultivation of coconut trees and other
trees, situated at Aquem, bounded on the east by the property of
the same name belonging to the heirs of Avelino de Souza and
Camilo da Costa; on the west and south by the mixed property of
the same name belonging to Manuel Antonio Vaz; and on the
north by “Nomoxim” belonging to the heirs of Antonio Gabriel
Mergulhao and others. The document of auction proceedings,
produced by PW2, is at Exhibit PW2/DEF/G. It reveals that
judicial public auction was held on 17/08/1972 in the law suit
proceedings of partition of common cause filed by Virginia
Purificacao Miranda against Antonio Piedade Ciriaco Socorro
Gregori Acurcio Jose Francisco Diniz and his wife Phyllis Brooks.
The document further reveals that in the said auction what was
sold was the rustic and urban property with its courtyard known
as “Zorody” situated at Aquem, bounded on the east by the
property of the same name belonging to the heirs of Avelino de
Souza and Camilo de Costa; on the west and south by mixed
property of the same name belonging to Manuel Antonio Vaz;
and on the north by “Nomoxim” of the heirs of Antonio Gabriel
Mergulhao, actually bounded on the east by the property of the
same name “Zorody” belonging to the heirs of Valentin Coelho
and Camilo da Costa and on the west by the property of Leao
Constancio Diniz and Gregorio Taumaturgo Diniz, described in
the land registration office of Salcete of Comarca under number
27202, series new B, enrolled in the Taluka Revenue Office
under Matriz No. 345. The above was the property named and
described in the notices which preceded the said judicial public
auction. Thus, neither the land registration document nor the
auction document speaks about any property with compound. It
is seen that Maria Jesuina Miranda e Gomes and her husband
Soter Paulo Menino Gomes were the highest bidders and
purchased the said property. The property 1/5th of “Zorody”
bearing matriz no. 344 is not named in the notices which
preceded the auction as also in the auction proceedings.
14. There is on record as Exhibit PW2/DEF/I-colly. a registered
document, dated 30/08/1972 of mortgage and promise to sell, of
the same property “Zorody” purchased in the judicial public
auction held on 17/08/1972, in the file 3450/1964, by which the
said purchasers namely Maria Jesuina Miranda e Gomes and her
husband Soter Paulo Menino Gomes executed mortgage in
favour of Maria Benvinda Elisa Almeida for having received `
15,000/- from her. Mr. Guilherme Redemptor Diniz, the original
defendant no. 1 was a party to this document of mortgage. In
this mortgage deed it is specifically mentioned that Maria
Jesuina Miranda e Gomes and her husband Soter Paulo Menino
Gomes are the lawful possessors of a rustic and urban property
with its fruit garden known as 'Zorody' situated in the area of
village of Aquem, City of Margao of Taluka, Judicial Division and
Sub-District of Salcete of the District of Goa, which consists of a
house of residence and of land with coconut trees and other
trees, and it is bounded on the east by the property of the same
designation of the heirs of Avelino de Souza and Camilo da
Costa; on the west and South by the mixed property of the same
designation of Manoel Antonio Vaz and on the north by Nomoxim
of the heirs of Antonio Gabriel Mergulhao and at present
bounded on the east by the property Zorody of the heirs of
Valentine Coelho and Camilo da Costa, on the west by that of
Leao Constancio Diniz, Gregorio Taumaturgo Diniz, described in
the Land Registration Office of this judicial Division of Salcete
under number twenty seven thousand two hundred and two, of
the new series, and enrolled in the matriz under number three
hundred and forty five. It is stated in this document that the
above property was purchased by the said parties in Judicial
Public Auction held on seventeenth day of the current month of
August, in the file 3450/64, instituted in this judicial Division and
half of the price has already been deposited and the stamp paper
has been paid. The mortgage document also does not mention of
the property with compound or about 1/5th of the property
bearing matriz no. 344 as part of the property purchased in the
said judicial public auction.
15. From the above, it is clear that if the document of
auction proceedings held on 17/08/1972 is to be considered as
per its face value then what was purchased by Maria Jesuina
Miranda e Gomes and her husband Soter Paulo Menino Gomes
within the old as well as new boundaries was the property
bearing Land Registration No. 27202 and matriz no. 345 only,
which fact is strengthened by the deed of mortgage dated
30/08/1972. There is no mention of matriz no. 344 in these
documents.
16. Mr. Almeida, learned Counsel for the defendants,
contended that in terms of Section 91 of the Evidence Act, oral
evidence with respect to the said auction sale in order to
establish that the auction sale is not only of the property
registered under no. 27202 but also in respect of 1/5th of the
property registered under no. 29845, is not admissible. On the
contrary, the contention of Mr Usgaonkar, learned Counsel for
the plaintiffs is that in respect of auction sale no document was
required to be executed by the Court and therefore Section 91 of
the Evidence Act does not bar such evidence. He relied upon the
Judgment of Division Bench of Patna High Court in the case of
“Tribeni Prasad Singh Vs. Ramasray Prasad Chaudhury”,
reported in A.I.R. 1932 Patna 80. In the case supra, the learned
Division Bench has observed that Section 65 of Civil. P.C. says
that where immovable property is sold in execution of a decree
and such sale has become absolute, the property shall be
deemed to have vested in the purchaser from the time when the
property is sold and not from the time when the sale becomes
absolute. It has been held that it is clear that the title of the
auction-purchaser is derived from the sale and not from the sale
certificate. It has been further held that the sale certificate is
merely evidence of title of the auction-purchaser and not the
title deed in the sense that the title is conveyed or created by it.
It is further observed that the word “sale certificate” itself
denotes that it is only a certificate by the Court that the auctionpurchaser
has purchased the property. It is further observed
that no provision of law has been placed before the Court to
show that the title of the auction-purchaser is derived from the
sale certificate. In the case supra, mortgaged property was
purchased by the decree holder in execution proceedings but no
sale certificate was obtained nor any document of delivery of
possession under Rule 95 or order XXI of C.P.C. was applied for
and obtained. In terms of Rule 94 of Order XXI of C.P.C., when
a sale of immovable property has become absolute, the Court
shall grant certificate specifying the property sold and the name
of the person who at the time of sale is declared to be the
purchaser and such certificate shall bear the date the day on
which the sale became absolute. An omission to obtain the
certificate does not destroy or take away the title of the
purchaser and the purchaser in such case can prove his title and
purchase by evidence aliunde. But when there is order of
confirmation of sale, the production of the same is sufficient to
prove the title of the auction-purchaser. The certificate of sale
may not by itself create title but is certainly evidence of title.
The facts and circumstances in the case of “Tribeni Prasad
Singh” (supra) are different. The ratio in the said judgment
does not apply to the facts of the present case. In the present
case, the property was not purchased in execution proceeding
and hence the provisions of order XXI of C.P.C. would not apply.
Auction was held in a Partition Suit No. 3450/1964. The said
document of auction proceedings was signed by Dr. Eurico Das
Dores Santana Da Silva, the learned Civil Judge Senior Dicision;
by Mr. Abel Agnelo Da Piedade Noronha, the Escrivao/Clerk of
that Court; by Mr. Antonio Coelho, the bailiff of the Court and by
the purchasers namely Maria Purificacao Jesuina Consolacao
Miranda Gomes and Soter Paulo Menino Gomes. It is stated in
the said document of auction proceedings that the said written
proceedings are being sent to Land Registration Office in terms
of the law. The document further shows that on 25/08/1972, the
executing parties namely Maria Jesuita Miranda Gomes and her
husband Soter Paulo admitted execution of the so-called
certificate of sale, before the Sub-Registrar, Salcete. On
26/09/1972, the execution of the said document of auction-sale
has been registered in the Land Registration Office of Salcete
under No. 1371 of Book No. 1, Vol. 99 at pages no. 335 to 340.
Section 91 of the Evidence Act, inter alia, provides that in all
cases in which matter is required by law to be reduced to the
form of a document, no evidence shall be given in proof of such
matter except the document itself, or secondary evidence of its
contents in cases in which secondary evidence is admissible
under the provisions herein before contained. In my view, the
learned First Appellate Court has rightly held that on account of
Section 91 of the Evidence Act, oral evidence in respect to the
auction sale in order to show that the auction sale was not only
in respect of the property registered under no. 27202 and
matriz no. 345 but also in respect of the property bearing
registration no. 29845 and matriz no. 344, is not admissible.
Hence the substantial question no. (1) above is answered in the
negative i.e. against the plaintiffs.
17. By sale deed dated 14/02/1912 (Exhibit PW2/E), Smt.
Lucrecia Purificacao Collaco, the mother of Leao Constancio
Diniz, of whom the defendants are the legal representatives,
purchased from Elias Gomes De Barbos and his wife Mrs. Maria
Eromela Esmeralda Da Piedade Vaz 1/5th part of the property
“Zorody” situated at Aquem, which entire property is bounded
on the east by the properties of the same name belonging to
Pedro Peregrino Da Costa and of Joao Cypriano Diniz; on the
west by public drain; on the north by the embankment of Manuel
Antonio Do Rosario Vaz and of Hipolito Mergulhao and on the
south by that of Preciosa Gomes, not described in the land
registration office. Even after purchase of the same, Smt.
Lucrecia Purificacao Collaco did not bother to get the said 1/5th
part registered in her name in the land registration office. This
1/5th part is stated to be bounded towards east by the property of
Pedro Joaquim and Joao Cypriano; on the west by the remaining
4/5th of the same property reserved by the vendors for
themselves; on the north by the property of the heirs of father
Cyriano Diniz; and on the south by the property of Preciosa
Gomes. Thus, the said 1/5th part was bounded towards south by
the property of Preciosa e Gomes. In this sale deed dated
14/02/1912, the matriz number of the entire “Zorody” is not
mentioned anywhere but the matriz number of 1/5th which is sold
is stated to be 343. Be that as it may, the property bearing land
registration no. 27202 is bounded towards south by the
property of Manuel Antonio Vaz whereas the property “Zorody”
bearing matriz no. 344 of which 1/5th part was purchased by
Smt. Lucrecia Purificacao Collaco was bounded towards north by
the property of Manuel Antonio Vaz. Thus, as has been rightly
observed by the First Appellate Court, if really the property
purchased in auction proceedings was the one bearing land
registration no. 27202 as also the 1/5th part of the property
bearing matriz no. 344, which was given matriz no. 343, then the
southern boundary of the same ought to have been the property
belonging to Preciosa e Gomes and not that of Manuel Antonio
Vaz. The original plaintiff no. 2 was himself the purchaser in the
said auction held on 17/08/1972 and ought to have raised
objection regarding the southern boundary. There is no
explanation regarding the said discrepancy. PW2 has admitted
that whenever any merger or amalgamation was done, the law
provided for recording such merger or amalgamation in the
Books of Land Registration. Article 154 of the Portuguese
Decree No. 42565 (Land Registration Law) provides that the
description of one property after the same is effectuated shall
never be cancelled, however the same can be completed,
rectified, restricted, amplified or utilized by virtue of
supervenient circumstances by means of amendment.
Admittedly, the alleged merger or amalgamation of the property
bearing land registration no. 27202 and 1/5th of matriz no. 344
has not been recorded in the land registration office. The area of
the suit property as indicated in the plan Exhibit PW2/A is not
borne out from any document but as stated by PW2, he had
himself worked them out on the basis of survey records and on
the basis of fractions.
18. In the left side margin on the top of the first page of this
sale deed dated 14/02/1912, there is some hand written note
saying as follows: “This part is included in another of 'Zorody';
now this 'Zorody' is already registered in the name of Leao”.
Learned counsel for the plaintiffs contended that this
endorsement manifests that the 1/5th part of “Zorody” purchased
in 1912 was included, enjoyed and possessed as a part of the
property registered under no. 27202, by the owners. In the
plaint such an interpretation of the said endorsement is not
pleaded. According to PW2, he was told by PW1 that the said
note was made on the said copy of the deed by Leao to the effect
that the said part will form part of their own compound
described in the land registration office under no. 27202 and
matriz no. 345. However there is neither pleading in the plaint
in this regard as deposed to by PW2 nor PW1 has stated so.
There is no date or month or year written on this endorsement.
Land registration no. 27202 is also not mentioned in the said
endorsement and hence it is not known as to in which land
registration, the same is included. The said writing is not an
integral part of the said sale deed. There is no explanation as to
how Leao could make such writing on the copy of the deed when
the said 1/5th part was purchased by his mother who had other
children also. The conclusion which the learned Counsel for the
plaintiffs wants to arrive at from the said endorsement is
imaginary and not at all established.
19. PW1, the original plaintiff no. 2, in her deposition, said
that the property purchased by her in the auction bears land
registration no. 27202, but did not at all say that the said
property included 1/5th of the property bearing matriz no. 344.
She deposed that she purchased the property known as “Zorody”
along with a house enclosed by a fence. She explained that the
defendant's father (Leao Constancio Diniz) had purchased the
suit property during his life time and at that time it comprised of
two parts and after having purchased the two parts of the suit
property, the defendant's father had amalgamated a portion of
one part of the suit property and made a bigger plot and the said
bigger plot was disposed of in the court auction held in the
inventory proceedings and he purchased this bigger plot in the
said court auction. Thus, as has been rightly contended by the
learned counsel for the defendants, PW1, the original plaintiff
no. 2 does not refer to the sale deed dated 14/02/1912 but to the
sale deed dated 03/08/1925 by which the defendant's father i.e.
Leao Constancio Diniz had purchased the entire property,
bearing matriz no. 344.
20. At Exhibit P-1 is the document of inventory proceedings
no. 133/1951, which inventory proceedings were initiated upon
the death of Leao Constancio Diniz. Under item 14, in the above
inventory proceedings, 2/3rd of the said property registered
under no. 27202 and enrolled under matriz no. 345 was
included. At Exhibit P-2, is the document of inventory
proceedings no. 15814 of 1958, which inventory proceedings
were initiated upon the death of Father Jose Napoleon Enrico
Pascoal Diniz, the brother of Leao Constancio Diniz. In these
inventory proceedings, under item no. 10, 1/3rd of the property
rustic and urban with its compound known as “Zorody” enrolled
under matriz no. 345 was enlisted. Both together make the
entire property bearing land registration no. 27202. It is
pertinent to note that in both the inventory proceedings under
both the items no. 14 and 10, there is no mention of any portion
of the property bearing matriz no. 344. On the contrary, under
item no. 22, in inventory proceedings no. 133/1951, the property
“Zorodi” bearing land registration no. 29845 and matriz no. 344
has been separately included. If, on account of purchase of 1/5th
of the property bearing matriz no. 344 in the year 1912, during
the period from 1912 to 1916, the said 1/5th part of the property
bearing matriz no. 344 was annexed to or amalgamated with the
property bearing land registration no. 27202, to form one single
and distinct unit, then the question of describing the property in
the above manner in the inventory proceedings would not arise.
21. The plaintiffs have pleaded in paragraph 6 of the plaint
that after the purchase of 1/5th of the property “Zorody” bearing
matriz no. 344, made by the mother of Leao Constancio Diniz, by
deed dated 14/02/1912, the original property with the new
acquisition was encircled by laterite stone wall which was on the
east, west and south and not to the north as there was low lying
paddy field on this side and that this was done during the period
from 1912 to 1916. Though, PW1, nowhere in her deposition,
stated that there was laterite stone wall on east, west and north
of the said property, however, in paragraph 6 of the written
statement, the defendants did not specifically deny the fact of
construction of laterite stone wall on the east, west and south of
the original property with the purchase made under the deed
dated 14/02/1912. What the defendants stated was that they
were unable to state whether the said construction of the
boundary wall around the said property together with portion of
plot no. 344 purchased by deed dated 14/02/1912 was done
between 1912-1915. Besides the above, the cross-examination of
DW1 establishes that such wall was built. Merely because, 1/5th
part of the property bearing matriz no. 344 was purchased in the
year 1912 and because a laterite stone wall was constructed on
the east, west and south of the original property bearing land
registration no. 27202 and the 1/5th purchased in 1912, though
that may be with an intention to enjoy and possess both the
parts together, however, that cannot mean that this entire
property within the compound wall on three sides and the paddy
field on the fourth side was sold in auction in 1972. Learned
First Appellate Court has rightly observed that an owner of two
or more properties can encircle the properties within one
compound wall and may thereafter choose to dispose of one of
the said properties within the compound wall. The defendants
have specifically pleaded in the written statement that the
construction of the boundary wall has nothing to do with the
annexation or unification of the property. It was contended by
the learned counsel for the plaintiffs that since the house
property bearing land registration no. 27202 and 1/5th part of
matriz no. 344 were enclosed by walled compound, it formed
courtyard and therefore there is reference to the property with
courtyard in the auction proceedings. Merely because in the
auction proceedings there is mention of the word 'courtyard'
that does not mean that the auction proceedings included 1/5th
part of the property bearing matriz no. 344 having outhouse in
it. The case of the plaintiffs is mostly based on imaginations and
conjectures, with no support of documentary evidence.
22. Case of the defendants is that the sale deed dated
14/02/2012 was never acted upon and that 1/5th of the property
bearing matriz no. 344 was never dis-annexed from the said
entire property and annexed to the property bearing matriz no.
345. The entire property “Zorody” bearing matriz no. 344 was
purchased by Leao Constancio Diniz by sale deed dated
03/08/1925 (Exhibit C-1) and consequently it was registered in
the land registration office, being described under no. 29845
and inscribed under no. 20439, in the name of Leao Constancio
Diniz. Thus, prior to the sale deed dated 03/08/1925, the
property “Zorody” bearing matriz no. 344 was not registered in
the land registration office. In terms of Article 8 of the said
Decree No. 42565, the definitive registration presumes that not
only the rights which are registered exist but also that the same
belong to the person in whose name the same are inscribed in
the precise terms in which the registration defines the same. The
learned First Appellate Court has relied upon Article 953 of the
Portuguese Civil Code which says that the inscription in the
registration of a title of conveyance without condition precedent
involves irrespective of any other formality, the transfer of
possession in favour of a person in whose favour such inscription
has been done. In terms of Article 12 of the said decree no.
42565, the facts proved by registration cannot be challenged in
the court without simultaneously making the prayer for
cancellation of the respective registration. The plaintiffs,
therefore ought to have sought declaration that said registration
of inscription under no. 29845, at least insofar as the said 1/5th of
the said property, is null and void. Learned Counsel for the
plaintiffs argued that since 1/5th of the property bearing matriz
no. 344 was already sold in the year 1912, the same cannot be
sold again in the year 1925, since the vendors had right only to
4/5th part which they could have sold. It is the parties to the sale
deed dated 14/02/2012 who could challenge the subsequent sale
deed dated 03/08/1925 and not the plaintiffs. Even if it be true
that the transaction of the year 1925 cannot nullify the sale deed
of the year 1912, that will not automatically mean that said 1/5th
of matriz no. 344 was included in the auction proceedings. In
my view, merely because 1/5th part of the property was
purchased by the mother of Leao Diniz i.e. by Smt. Lucrecia
Purificacao Collaco, in the year 1912, that does not mean that
the property auctioned in the year 1972 included the said 1/5th
part of the property bearing matriz no. 344. In the
circumstances above, even if the the First Appellate Court had
erred in holding that the fact that said endorsement was made
would only establish the case of the defendants that sale of 1912
was not acted upon and if the substantial question no. (2) is
answered in favour of the plaintiffs, that would not establish
that the property purchased by the original plaintiffs in Court
Auction on 17/08/1972 included 1/5th of the property bearing
matriz no. 344.
23. It is false to say that the defendants have not denied in
the written statement that the original plaintiffs were put in
possession of the property. The defendants have specifically
denied that the said “Entrega judicial” has anything to do with
the disputed outhouse. They have specifically pleaded that the
alleged continuous rooms is an outhouse situated in plot no. 344
which has nothing to do with the plaintiffs' auction purchase. In
paragraph 14 of the written statement, the defendants
specifically pleaded that the order dated 29/09/1973 was made
without giving notice to them. They have further pleaded that
the plaintiffs had obtained possession of the outhouse by getting
the defendants arrested under warrant based on false and
frivolous complaint. It was the case of the plaintiffs themselves
that on 30/09/1973, the pluckers of the defendants broke the
lock, opened the door and plucked the property purchased by
the plaintiffs and removed the tiles of the said room and started
throwing down the wooden rafters of the said room. Thus, the
defendants did the above acts because they claim to be the
owners in possession of the said land being integral part of the
property bearing land registration no. 29845 and matriz no. 344.
In the circumstances above, merely because the Court, under
the impression that the land shown under plot 'B' was part of the
property purchased in auction dated 17/08/1973,handed over to
the plaintiffs the said area, that would not mean that the
plaintiffs are in lawful possession of the said land. Unless the
plaintiffs prove that what was purchased in auction dated
17/08/1972 included 1/5th of the property bearing matriz no. 344,
containing the outhouse, the possession of the plaintiffs of the
said land cannot be termed as lawful so as to make them entitled
to the reliefs claimed. There was injunction operating against
the defendants during the pendency of the suit. The suit was
mainly for declaration of ownership based on auction
proceedings and other reliefs were consequential. The additional
substantial question no. (3) is therefore answered against the
plaintiffs.
24. In view of the above, the impugned Judgment and
Decree dated 24/10/2008, passed by the learned First Appellate
Court in Regular Civil Appeal No. 135/2000 is in accordance
with the settled principles of law and no interference with the
same is called for.
25. In the result, the appeal is rejected. No order as to costs
in the facts and circumstances of the case.
U. V. BAKRE, J.
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