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2008 DIGILAW 1094 (BOM)

Philomena Severina Pereira v. Carmelina Pereira

2008-07-31

N.A.BRITTO

body2008
ORAL JUDGMENT N.A. Britto, J. These are plaintiffs second appeals arising from R.C.S. No. 211/1999/B and the same can be conveniently disposed of by this common judgment. 2. Heard Ms. S. Naik, learned counsel on behalf of the appellant/plaintiff and Mr. N.N. Sardessai, learned counsel on behalf of the respondents. 3. Broadly stated, the dispute between the parties was regarding Chalta Nos. 12, 13 and 14 of P.T. Sheet No. 135 of Mapusa and regarding which there was a partition deed executed between them on 9.10.1972, the execution of which was subsequently admitted by the plaintiff, and, under which Chalta No. 13 was allotted to the plaintiff, Chalta No. 12 to defendant No. 1, and Chalta No. 14 to defendant Nos. 2 and 3. The plaintiff filed the suit seeking declaration and permanent injunction in relation to Chalta Nos. 13 and 14 and stated that Chalta No. 14 was erroneously recorded in the name of respondent No. 2 but Chalta Nos. 13 and 14 were in exclusive possession of the plaintiff and prior to that in the possession of her in-laws. Plaintiff claimed adverse possession in respect of the said Chalta number as against defendant Nos. 2 and 3 and further claimed that defendant No. 1 who happened to be a relation of defendant No. 2 had no right to interfere with the suit property i.e. Chalta Nos. 13 and 14 and the residential house situated in Chalta No. 14. 4. The defendants contested the suit and defendant No. 1 stated that the property was divided by the said partition deed and that the dwelling house surveyed under Chalta No. 14 was allotted to Manuel Sebastian Rodrigues and part of the dwelling house which falls in Chalta Nos. 13 and 12 were allotted to Maria Rosario Pereira and the said Maria Rosario Pereira had only one daughter, namely, defendant No. 2 who had inherited the dwelling house along with Chalta No. 14. She had further stated that by the said partition deed Chalta No. 13 was allotted to Joao Francisco Pereira and his wife, the plaintiff and the open land which is Chalta No. 12 was allotted to Luis and his wife, defendant No. 1 and defendant No. 1 and her husband have constructed a house in Chalta No. 12. It was their case that the plaintiff lived in Chalta No. 13. It was their case that the plaintiff lived in Chalta No. 13. It was further their case that plaintiff lived in house No. 192 in Chalta No. 13 and both the said houses had a common staircase and since defendant Nos. 2 and 3 were living abroad defendant No. 1 was in possession of the house No. 192 A/5 in Chalta No. 14 as caretaker, for the last about 30 years and the plaintiff had no right, interest or title to the said house No. 192 A/5 of Chalta No. 14 and that the plaintiff was trying to grab the property of Chalta No. 14. It appears that defendant Nos. 2 and 3 were made parties to the suit subsequently and also filed a counter-claim against the plaintiff with a view to restrain the plaintiff from dispossessing defendant Nos. 2 and 3 from the suit house existing in Chalta No. 14. 5. The plaintiff examined herself in support of her claim. The defendants did not lead any evidence. The learned trial Court by judgment dated 10.7.2006 dismissed the suit as well as the counter-claim. Against the said dismissal of the counter-claim, defendant No. 1 filed an appeal bearing R.C.A. No. 68 of 2006 which came to be decided by the learned Ad hoc District Judge by judgment dated 20.12.2006 and by virtue of the said judgment the counter-claim filed by the defendants was decreed in terms of prayer (a). The plaintiffs appeal was registered under R.C.A. No. 92 of 2006 and came to be decided by another Adhoc District Judge on 26.2.2007 and this appeal was decided following the findings given in the judgment of the first appeal decided on 20.12.2006. 6. Learned counsel on behalf of the plaintiff submits that the defendants had not led any evidence whatsoever and therefore the defendants counter-claim could not have been decreed. Learned counsel further submits that there was no issue of res judicata involved in the second appeal by virtue of the decision in the first appeal, referred to herein before. 7. Although, the plaintiff examined herself and the defendants did not examine themselves in support of their counter-claim the defendants were able to secure several admissions from the plaintiff and it is based on those admissions that the counter-claim of the defendants came to be decreed by judgment dated 20.12.2006. 7. Although, the plaintiff examined herself and the defendants did not examine themselves in support of their counter-claim the defendants were able to secure several admissions from the plaintiff and it is based on those admissions that the counter-claim of the defendants came to be decreed by judgment dated 20.12.2006. In decreeing the said counter-claim the learned Adhoc District Judge observed as follows : "The plaintiff in her affidavit in evidence has reiterated the case pleaded and has claimed that she is owner in possession of Chalta Nos. 13 and 14 and no one else has any right, title or interest to the said suit properties and that the name of Ms. Agnesia Rodrigues has been wrongly recorded in form 1 and XIV. In her cross-examination, however, she has admitted that Chalta No. 14 of P.T. sheet No. 135 belongs to defendant Nos. 2 and 3 and has an area of 271 sq. mts.; that property of these defendants has been correctly recorded in the survey records in the name of defendant No. 2; that Chalta No. 14 is in possession of defendant Nos. 2 and 3 along with structure; that name of defendant No. 2 has been wrongly recorded in survey records and Agnel; that defendant No. 2 has been paying house tax in respect of her house; that there was a division on 9.10.1972 between her husband and she on one side and the defendant No. 1 and her husband on the other side and since then she is in possession and occupation of Chalta No. 13 and defendant No. 1 in possession and occupation of Chalta No. 12; that she is entitled to the middle portion of the entire property and since the date of division they have been in possession of their respective portions. She has also admitted that in the year 1999 the defendant No. 1 had filed a complaint against her husband and that she had given writing before the police that she will not interfere with the defendant No. 1. She has also admitted that the defendant No. 2 has their house hold items in their house. The learned trial Judge failed to appreciate that the plaintiff had approached the Court claiming to be owner in possession as well as claiming title by adverse possession to Chalta No. 14 of P.T. Sheet No. 135. She has also admitted that the defendant No. 2 has their house hold items in their house. The learned trial Judge failed to appreciate that the plaintiff had approached the Court claiming to be owner in possession as well as claiming title by adverse possession to Chalta No. 14 of P.T. Sheet No. 135. The learned trial Judge also failed to appreciate that even in her affidavit in examination-in-chief the plaintiff had reiterated said claim. Ms. Philomena, PW 1, has also admitted that in 1999 her husband was taken to the police station on a complaint by defendant No. 1 and she had given in writing before the police that she will not interfere with the defendant No. 1. The pleadings, the deposition and said admission in writing given before the police indicate that the plaintiff always wanted to lay claim to Chalta No. 14 and for that matter she had even interfered with defendant No. 1. From her examination it is also clear that Ms. Philomena, PW 1, was aware that defendants 2 and 3 are owners and they have their belongings in the portion of the house situated in Chalta No. 14. The plaintiff, however, whilst making claim of owenrship and possession of said chalta number did not implead defendants 2 and 3. The records show that these defendants were impleaded only on an objection raised by defendant No. 1 to the effect that the defendant Nos. 2 and 3 are the owners in possession of said portion. The intention of the plaintiff to lay claim to Chalta No. 14 and grab said property was, therefore, clear. It is not understood what further evidence the learned trial Judge expected to prove the interference of the plaintiff with the Chalta No. 14. Mrs. Philomena, PW 1, in her cross-examination stated that she did not want to grab said property but she filed the suit only because she was harassed by the defendant No. 1. Admittedly, Chalta No. 14 does not belong to the defendant No. 1 but belongs to defendant Nos. 2 and 3. In case defendant No. 1 had harassed the plaintiff she could have proceeded against defendant No. 1 by initiating appropriate proceedings against the property of defendant No. 1 but not against the property of defendant Nos. 2 and 3 that too in their absence and without impleading them. 2 and 3. In case defendant No. 1 had harassed the plaintiff she could have proceeded against defendant No. 1 by initiating appropriate proceedings against the property of defendant No. 1 but not against the property of defendant Nos. 2 and 3 that too in their absence and without impleading them. The evidence, therefore, clearly suggests that the plaintiff wanted to interfere with the property of the defendants 2 and 3 to trespass into the same and illegally enjoy the same. The learned trial Judge has, therefore, misconstrued the evidence on record as well as the legal provision on law of evidence in coming to the conclusion that the defendants 2 and 3 had to step in the witness box to establish interference by plaintiff with their property. By way of counter-claim the defendants 2 and 3 had only prayed for an injunction to restrain the plaintiff from interfering with their property. The defendants 2 and 3 have established that plaintiff was trying to interfere with their property without any light. These defendants were, therefore, entitled to the relief of injunction. The learned trial Judge has, therefore, erred in not decreeing the counter-claim. Point (a) is, accordingly, decided in the affirmative." 8. Although, the plaintiff had claimed adverse possession in relation to Chalta No. 14 she had admitted not only the execution of the partition deed but had further admitted that defendant Nos. 2 and 3 were in possession of the said Chalta number. Whether the principle of res judicata was involved or not, the fact remains that the judgment dated 26.2.2007 had to follow the judgment dated 20.12.2006 because the latter judgment was delivered by the learned first appellate Court after discussing the evidence of the plaintiff coupled with the admission made by her in their proper perspective. There is no substantial question of law involved in these appeals. The suit of the plaintiff and the counter-claim of the defendants have been decided on the basis of the evidence produced by the plaintiff. Both the appeals have no substance. The same are hereby dismissed. Appeal dismissed.