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2009 DIGILAW 1287 (BOM)

Arun Gajanan Gadgil v. Vinayak Pandurang Gadgil

2009-09-25

U.D.SALVI

body2009
JUDGMENT U.D. Salvi, J.- This appeal arises from the judgment and decree passed by the learned Civil Judge, Senior Division, Bicholim dismissing the Special Civil Suit No. 23/1995/A on 23.7.2001. 2. Special Civil Suit No. 23/1995/A was instituted for the purposes of seeking the following reliefs: (i) declaration that the subject sale deeds dated 18.10.1985 be declared as null and void. (ii) the plaintiffs be declared as co-owners of 1/3rd share in the suit property. (iii) injunction restraining the defendant No.3 Company from carrying on any mining activities. (iv) for restoration of joint possession of the suit property to the plaintiffs and the defendant Nos. 1 and 2 and the defendant Nos. 4 to 8 in its formal condition. (v) for mesne-profits arising out of the wrongful possession of the suit property by the appellant/against the respondents/defendants in respect of the suit property popularly known as "Nangor Sorvoi" or "Nagor Sorio" totally admeasuring about 1,94,125 square metres bearing Survey Nos. 26/1 and 27/1 of village Vaghurem described in the Land Registration Office of Bicholim, under No. 14084 of book B-36 at page 106. 3. The main contest over the suit property survived between the appellants and the respondents/defendants Nos. 1 to 3 and as such the rest of the respondents who were originally defendant No. 4 to 10 were deleted as per order dated 21.4.2008 in Misc. Civil Application No. 219/2008. 4. Admittedly the appellants/plaintiff No. 1 Arun and plaintiff No.3 Varada are the only heirs of late Gajanan Pandurang Gadgil and his wife Premlata; and the respondent/defendant No. 1 being the son of Pandurang Janardhan Gadgil is the brother of late Gajanan and paternal uncle of the appellant/plaintiff No. 1 Arun and plaintiff No.3 Varada; and the appellant/plaintiff No.2 Smita and the respondent No. 2/Vinata are the wives of the appellant/plaintiff No. 1 Arun and the respondent/defendant No.1 Vinayak respectively; and Balkrishna, second son of late Pandurang Gadgil was the husband of the non contesting respondent/defendant No.4 Smt. Suhas Gadgil and father of non contesting defendant No.5, 7 and 9; and the appellant/plaintiff No.4 Vyas now deceased was the husband of the appellant/plaintiff No.3 Varada; and non contesting respondent No. 6/Swati, respondent No. 8/Varsha and the respondent No. 10/Vinayak are spouses of the respondent/defendant No.5, 7 and 9. 5. 5. The appellants/plaintiffs pleaded that the common ancestor Pandurang Gadgil original owner of the suit property and his wife Radhabai gifted it along with other properties in equal shares to Gajanan Vinayak (predecessor of the plaintiff), Vinayak (respondent/defendant No. 1) and Balkrishna, his sons as per the deed of Gift dated 1.3.1947 drawn on page 46- V of book 138 of the then notary of judicial division of Bicholim Dr. A.F. Santana D'Souza as a consequence of which, the said Gajanan Pandurang Gadgil predecessor-in-title of the plaintiffs became the owner of the 1/3rd of the suit property: by following the demise of Gajanan on 2.9.1979 and his wife Premlata died on 27.3.1990 they became 1/3rd owners of the suit property being the only heirs to succeed to their estate 1/3rd share in the suit property. The plaintiffs further pleaded that the discussion between the plaintiff and the defendant No.1 Vinayak held with a view to partition the suit property alongwith other properties in the year 1984, did not fructify into any settlement. Some time in June 1992, the plaintiff No. 3 Varada and plaintiff No. 4 Vyas residents of Mapusa a learnt about the excavation and mining operations in the suit property undertaken by the respondent/defendant No. 3/M/s. Chowgule and Co. Pvt. Ltd. and further inquiries in that regard made them revealed to them executed by the defendant Nos. 1 and 2 to the defendant No. 3/Company by means of eight sale deeds executed between 18.10.1985 and 18.12.1985. To the notice dated 14.9.1992 calling upon the defendant No. 3/Company to desist from performing any mining operation in the suit property on the ground of their subsisting right therein. The plaintiffs pleaded that the defendant No.3/Company replied to the plaintiffs and the reply dated 19.10.1992 that the defendant Nos. 1 and 2 would be liable in case of any defect in the title to the suit property conveyed to if and further asked for inspection of the documents. As talks to bring about amicable settlement in respect of the suit property failed, the said suit was instituted on 29.4.1995. 6. The defendant No.3 Company vide its written statement Exh. 8 set up a defence of bona fide purchaser of the land of the suit property for value. The defendant No. 3/Company contended that believing the representations made by the defendant Nos. 6. The defendant No.3 Company vide its written statement Exh. 8 set up a defence of bona fide purchaser of the land of the suit property for value. The defendant No. 3/Company contended that believing the representations made by the defendant Nos. 1 and 2, it had bona fidely purchased the property popularly known as "Nangor Sorvoi" admeasuring Survey Nos. 26/1, 27/1 admeasuring 1,73,275 square meters and 21,100 square meters respectively situated at village Vaghurem, Taluka Sattari for valuation and consideration of Rs. 3,56,750/- being the market value of the said land in the year 1985 and at the time of the purchase of the said property. Revenue records and Notification published in Government Gazette dated 5.3.1971 evincing the fact of redemption on payment of the ground rent of emphyteusis in respect of the said property as per Section 148 of decree No. 3602 of Concessionaires were shown to them by the defendant/Vinayak and mutations were effected after the due execution and registration of eight sale deeds in the office of Sub-Registrar of Bicholim in respect of the said transaction of sale of the suit property in their favour. However, the defendant No. 3 expressed ignorance as to whether the said property purchased by them was described in the Land Registration Office of Bicholim under No. 14084 of Book B-36 at page 106 or inscribed under No. 15729 at page 122 of Book G-21 and whether the said property originally belonged to Pandurang Gadgil. Verification of the title from the inquiries made with the defendant Nos. 1 and 2 was also considered by the defendant No. 3/Company in their written statement. All other facts prior to and at the time of the sale of the said property as contended by the plaintiffs in their suit were denied by the defendant No.3. The defendant No.3/Company further contended that the mining operations were being conducted in the major portion of the suit properties on the strength of the mining concessions duly obtained by them from the erstwhile Portuguese Government vide title No. 145/03 "Khind Dongor e Urotembo" 7. The defendant No. 1 Vinayak and his wife defendant No.2 Vinata resisted the suit with written statement Exh. 14. They did not dispute the relations between the plaintiffs and the defendant Nos. 1, 2, 4 to 10 vis-a-vis their common ancestor Pandurang Gadgil. The defendant No. 1 Vinayak and his wife defendant No.2 Vinata resisted the suit with written statement Exh. 14. They did not dispute the relations between the plaintiffs and the defendant Nos. 1, 2, 4 to 10 vis-a-vis their common ancestor Pandurang Gadgil. Reference to the properties of their common ancestor Pandurang Gadgil including the suit property in terms of village location and area was briefly made in the written statement. They further disputed the Gift deed dated 1.3.1949 and contended that Gajanan, the predecessor of the plaintiffs and his wife had already taken their monetary share much in excess of their entitlement from the sale proceeds of the ancestral lands. According to them, they and the predecessors of the plaintiffs had accepted the Award dated 17.3.1975 of an Arbitrator Mr. Govind Narayan Gadgil settling the dispute between them and yet Gajanan and his wife had never complied with their part of the Award. With reference to the suit property, they pleaded that it was acquired on permanent lease basis domino util by the defendant No.1 Vinayak on payment of total ground rent vide notification published in Government Gazette, series III 49 dated 5.3.1971 and certificate dated 6.10.1971 issued by the Survey Office and they have been enjoying the suit property as their own openly, peacefully and adversely against all other brothers and children of Pandurang Gadgil and as such the suit was barred by Law of Limitation. They further contended that with the sale of khodem property, the plaintiffs and their predecessors-in-title had acknowledged that they had no further right, title or interest in the suit property or any other ancestral properties; and as such the suit property had been lawfully sold to the defendant No. 3 Chowgule Pvt. Ltd. Company. 8. On this background of the controversy, the issues regarding (i) ownership of the suit property (ii) validity of the sale deeds executed between the defendant Nos. 1 and 2 land vendors and the defendant No. 3 as the purchaser of the suit property and (iii) and quantum of mesne-profits in respect of the suit property placing onus of proof on the plaintiff, were framed. The defendant Nos. 1 and 2 were required to prove that they were enjoying the suit property as their own openly, peacefully and adversely against all the other brothers and children of Pandurang Gadgil. The defendant Nos. 1 and 2 were required to prove that they were enjoying the suit property as their own openly, peacefully and adversely against all the other brothers and children of Pandurang Gadgil. The issue of limitation arose as a sequel to the issue requiring to prove adverse possession of the suit property. 9. Constituted attorney of the plaintiffs/appellants Arun Gadgil, Smita Gadgil i.e. the plaintiff No.3 Varada Ghaisas examined herself at Exh. 23 and placed on record : (i) Xerox copy of General Power of Attorney Exh. PW 1/A (ii) Form No. 1 and XIV in respect of Survey No. 26/1 and 27/1 the suit property Exh. PW 1/B (iii) Certified copy of the inscription and description certificate Exh. PW 1/C (iv) Notarized copy of the Gift Deed Exh. PW 1/D (v) Death certificate of Gajanan Gadgil, Exh. PW 1/E. (vi) Death Certificate of Lata Gadgil PW 1/F. (vii) Gopies of sale deeds Exh. PW 1/G. (viii) Legal notice along with register post acknowledgement Exh. PW 1/H. (ix) Reply dated 19.10.1992 Exh. PW 1/I. 10. The defendant No. 1 Vinayak Gadgil examined himself as well as DW 2 Krishna Savaikar, DW 3 Keshav Barve, DW 4 Chandrabhaga Gadgil, DW 5 Dattaram Prabhu in an attempt to discharge his burden of proving his adverse possession of the suit property. On behalf of the defendant No.3 Company, the defendant No.6 Juliano Rodrigues and DW 7 Pundlik Naik were examined. 11. With reference to the issue regarding the ownership of the suit property, the learned advocate Usgaonkar for the appellants/plaintiffs explained the concept of dominium utile available by virtue of contract of the emphyteusis converting into dominium directum et utile on payment of foro and for that purpose adverted to the provisions of law namely. "Regimen of Assignment of Lands of the State of India" under decree No. 3602 dated 24.11.1970 and the Civil Code of 1867. In his view, the notification published in the gazette dated 5.3.1971 Exh. DW 1/A wherein the name of the defendant No.1 Vinayak Gadgil figured as a concessionor purportedly in respect of the suit property Nangor Sorvoi, Vaghurem was a mere declaration/certification of redemption of ground rent ''foro'' payable under contract of emphyteusis made by the State and not title deed; and as such there was no need to challenge the said gazette publication. At the most, he argued, the payment of foro can be said to have been made by the defendant No. 1 Vinayak Gadgil for and on behalf of the co-owners of the suit property, which was specifically gifted by the common ancestor Pandurang Gadgil to his sons by virtue of the Gift Deed Exh. PW 110 as referred to in the inscription Exh. PW 1/C. He further pointed out from the provisions of law that Alvara issued in favour of the common ancestor Pandurang Gadgil in respect of the land described and annotated as number 14084 Exh. PW 1/C constituted title to the suit property and its reflection is to be found in the inscription No. 15729 referring to the Gift Deed dated 1.3.1947 in the present suit. By virtue of this Gift Deed, he argued, the defendant No. 1 Vinayak and his brothers Gajanan and Balkrishna were the co-owners of the suit property and as a corollary to this premise all the three became co-owners in respect of dominium utile in the suit property. Thus, he further argued, the redemption of ground rent foro under the contract of emphyteusis brought about vesting of dominium directum et utile or the Dominium directum in all the three co-owners, and as such the gazette publication of the act of redemption of ground rent foro in respect of the suit property, cannot be construed as an act of ouster of absentee co-owners Gajanan. From the Award dated 17.3.1975, Exh. DW 1/E. he pointed out that the defendant No. 1 Vinayak did acknowledge the fact of co-ownership of the common land and the resolution of the dispute over the common land in favour of the defendant No. 1 Vinayak on payment of Rs. 21,000/- to Gajanan. 12. In response to these submissions, the learned senior advocate Lotlilkar for the defendant No.3 submitted that despite there being no cross objection challenging the finding over the issue of ownership given by the trial Court, it was open for him to show from the record itself the weakness and shortcomings in the said finding. At the first instance, he argued, the plaintiffs/appellants had not produced necessary documents of title to claim ownership of the suit property. He further pointed out from the Gift Deed Exh. At the first instance, he argued, the plaintiffs/appellants had not produced necessary documents of title to claim ownership of the suit property. He further pointed out from the Gift Deed Exh. PW 1/D. which formed the basis of the title pleaded in the plaint that the Gift Deed made no mention of the suit property by name, description or by any other mark of identification and going by the recital of the Gift Deed indicating acquisition of the properties after second marriage, there could not have been gift of the suit property as contended to be acquired by the Donor common ancestor Pandurang in 1925 prior 'to the second marriage. He further argued that the inscription had no force of title and as such the very basis of the plaintiffs' case was not on any firm ground. According to him the co-ownership of the suit property is not spelt out from the documents and there is no reference to any Alvara title deed in the plaint. In his view, the payment of ground foro resulting into redemption under the contract of emphyteusis and its declaration/publication in the official gazette making reference to the defendant No. 1/Vinayak as the sole concessionor/assignee amounted to ouster of all others claiming co-ownership in the property in respect of which the payment of foro for effecting redemption was made. Such gazette publication, he argued. is sufficient to ascribe deemed knowledge of such ouster to the party claiming to be the co-owner of the property in respect of which the payment of foro was made; and as such the time had begun to run as against such co-owner from the date of such gazette publication and, therefore, the suit having been filed much after the period of twelve years therefrom prescribed under Article 65 of the Limitation Act was hopelessly time barred. 13. It is true that the plaintiffs/appellants has not produced the registered Alvara in respect of the suit property. However, it has been pleaded by the plaintiff that the suit property Nangor Sorvoi situated at village, Vaghurem belonging to the common ancestor Pandurang Gadgil was gifted in equal shares to Gajanan, Vinayak (the defendant No. 1) and Balkrishna by Pandurang Gadgil and his wife Radhabhai vide Gift Deed dated 1.3.1947 drawn at page 46-V of book 138 of the then Notary of Judicial Division of Bicholim, Dr. A.F. Santanan D'Souza. A.F. Santanan D'Souza. PW 1 Varada Ghaisas placed on record a notarized copy of the Gift Deed PW 1/D as well as the relevant inscription and description certificate Exh. PW 1/C collectively. There is no challenge to these documents any where in the evidence. On the contrary, DW 1 Vinayak Gadgil in his cross-examination did refer to five ancestral properties as Khodem, Vaghurem Naggosorvo, Vaghurem Kazarvodil Barad, Malloli and Maulingem and admitted that his father Pandurang by Gift Deed dated 1.5.1947 has gifted the above five ancestral properties to his three sons namely Gajanan, himself and Balkrishna. 14. On this background, it is necessary to scan the Gift Deed and the inscription in that regard. Though the recitals in Gift Deed speak of non-acquisition of any property by the Executant Pandurang Janardano Boto Gadgil during the subsistence of his first marriage and acquisition of the properties subsequent to the demise of his first wife Satyabhamabai i.e. after 1931, the Gift Deed, particularly the operative part, in clear terms speaks of gift of all immovable properties to his sons Krishna, Ganesha (Gajanan) and Vinayak with the consent of his wife Radhabai in equal shares. Recitals in a deed are statements introduced to explain or lead upto the operative part of it. Seemingly such explanation appears to have been furnished in the deed to explain/justify the joinder of Radhabai, second wife of Pandurang to the gift deed and nothing else. Moreover, a recital is not conclusive, because it is no direct affirmation. This can be seen from the copy of the certificate dated 27.7.1928 Exh. DW 1/D issued by Military Commander of Sattari regarding grant of Alvara No. 145 of 2.9.1925 issued in favour of Pandurang Janardano Boto Gadgil of Codiem. On the other hand inscription No. 15729 made upon the execution of the said Gift Deed dated 1.3.1947 and deed of ratification and Gift of 21.1.1936 alludes to fuearship of the property No. 14084 at FLS 106 of B-36. There is no evidence to obliterate these facts revealed from the inscription No. 15729. In the result, there is no escape from the conclusion that the property bearing No. 14084 was the property gifted by Pandurang the common ancestor of the plaintiffs and the defendant Nos. 1 and 2 to the defendant No. 1, Vinayak, his brother Gajanan and Balkrishna in equal share. 15. In the result, there is no escape from the conclusion that the property bearing No. 14084 was the property gifted by Pandurang the common ancestor of the plaintiffs and the defendant Nos. 1 and 2 to the defendant No. 1, Vinayak, his brother Gajanan and Balkrishna in equal share. 15. With the aid of Wharton's Law Lexicon 15th Edition, provided by the learned Advocate Usgaonkar for the appellants, the word "feu" means vassal tenure i.e. the grant of land in perpetuity in consideration of perpetual annual payment. If this fact is read in conjunction with the gazette publication Exh. DW 1/A. one can easily find the origin of this grant in contract of emphyteusis. The term 'emphyteusis' from the Wharton's Law Lexicon, 15th Edition was the right of enjoying of the fruits, and disposing at pleasure of the property of another, subject to the payment of yearly rent (pensio or canon) to the owner, This right known as Jus emphyteuticarium afforded to grantor the right of enjoyment of the property as well as its disposal subject to the payment of an yearly rent to the owner. The ownership, thus, conferred on the grantee was useful or beneficial ownership a known to the Roman Law as dominium utile the right of a vassal or a treatment as distinguished from the dominium directum et utile. To clarify this aspect, the learned Advocate Usgaonkar referred to the definitions of the said terms in the Roman Law as given in Black's Dictionary, 6th Edition, 1990. 16. The State of Goa was a Portuguese Colony before liberation in December, 1961 and was governed by Portuguese Laws. The then Portuguese Government under Article 87 of Political Constitution of Portuguese Republic passed the "Regimen of Assignment of lands of the State of India" and brought in force the laws governing all the immovable lying in the Portuguese State of India i.e. Goa that may not be owned by any other collective or singular person at the time of promulgation of decree No. 3602 dated 24.11.1970 Chapter V of this enactment "Regimen of Assignment of lands of the State of India" deals with the contracts of an emphyteusis. Section 72, at its outset, pronounces that the contracts of emphyteusis of the lands of the State of India (Government) shall be governed by the prevailing Civil Law (Code), in the part not altered by the said decree and primarily requires amongst the other requirement payment of annual ground rent (foro) in cash and making of the contract administratively. It also lays down acquisition of contract domain by the assignee on payment of 20 times the amount of annual ground rent (foro). When a half of the assigned land is cultivated and the costs of trees belonging to the State existing in the land is paid according to the prices fixed in the schedule in force at that time. The concept of Jus emphyteuticarium is found further embodied in Section 75 in the said enactment which gives freedom to emphyteuta, the person, who enjoyed the right to transfer and mortgage his possessory domain or encumber it with any charges or easement, on condition that the acquirer shall become by means of execution invested with some rights and obligations as those assignee towards the State (Government). Adverting to Article 1662 and 1677 in the Portuguese Civil Code, the learned senior advocate Usgaonkar for the appellants pointed out that the right of emphyteusis was hereditary as well as capable of being gifted or exchanged by emphyteuta. He further invited the attention of the Court to the provisions in Chapter IX of the said enactment governing the procedure for Regimen of Ground Rent (foro). Section 144 therein requires the assignees of the State (Government) lands assigned by emphyteusis and such other documents in support of the payment of ground rents (foros), who intend to acquire the respective direct possession, in conformity with permission contained in No. 3 of Section 77 to make an application to the Governor General through Directorate of Land Survey and tender with such application, title deeds of emphyteusis and such other documents in support of the payment of ground rents (foros) falling due till the end of the preceding year of a the deposit of the price of apostil and of its registration. Section 147 speaks of the delivery of the title deeds to the interested party by means of endorsement in the file after completion of the procedural formalities prescribed in the preceding section. Section 147 speaks of the delivery of the title deeds to the interested party by means of endorsement in the file after completion of the procedural formalities prescribed in the preceding section. Section 148 talks of publication in the Government Gazette of the act of redemption of ground rents (foros) in following terms : "It shall be published in the Government Gazette a list of all the redemption of ground rents (foros) that in the preceding conditions take place in each month, containing the names of the assignees and, as an extract, all the indications of the title deed relating to identification of the property. A note in respect of this publication shall be made in the relevant files." 17. Essentially, therefore, the gazette publication Exh. DW 1/A under Section 148 of Decree No. 3602 is merely a publication made every month by the government for giving a list of all the redemptions of ground rents (foros) which takes place in such month and not a title deed, as contended by the respondents. Though Section 148 requires such publication ought to contain the names of the assignee and extract giving the indications of the title deed relating to the identification of the property, it cannot have any force any further than a mere publication of the list of the redemptions of ground rents (foros), more particularly so when Section 74 of the said enactment requires the proof of the contracts of emphyteusis through title of assignment issued and registered in conformity with Chapter 50 of the said enactment. In the instant case, none of the parties hereto produced title No. 106 referred to in the gazette publication leaving the Court to decide the title to the suit property on the basis of the aforesaid Gift Deed, inscription and certificate of description in the manner aforesaid. As discussed above, the restricted title to the property in form of emphyteusis being heritable and capable of being gifted, mere publication of the name of the defendant No. 1 Vinayak Pandurang Gadgil as the concessionor/grantee under Section 148 of the said enactment by the State in the gazette would have no effect on the legal configuration of rights brought about by statutory provisions. Right, title, interest as a co-owner (emphyteutor) was not extinguished due to redemption of the ground rent (foro) but it metamorphosed into absolute title (Dominium diretum) and, therefore, it only certifies that the defendant No. 1 Vinayak Pandurang Gadgil had made payment towards redemption of the ground rent (foro) on his behalf as well as on behalf of the other co-owners and at the best earned a right to receive from other co-owners the part which they were liable to pay in proportion to their share in the property for effecting redemption of the ground rent. 18. Incidently, the learned senior advocate Usgaonkar for the appellants pointed out that the defendant No. 1 Vinayak Gadgil, who happened to produce the certificate DW 1/D making reference to the a Alvara No. 145 of 1925 in favour of the common ancestor Pandurang, failed to explain as to how there existed discrepancy between the title No. 106 referred to in the gazette publication DW 1/A and the one referred to in the certificate Exh. DW 1/D produced by him. However, such discrepancy offers little help in resolving the controversy before us. Learned advocate Mr. Usgaonkar for the appellants further cited unreported judgment in Special Civil Application (Writ Petition) No. 86/B/80 and 87/B/80 Govind G.P. Raiturcar v. Union of India, dated 15.7.1983 passed by this Bench at Goa in order to shed light on the concept of grant of land under the provisions of said decree. It reveals how impregnable is the fortification of contract of emphyteusis vis-a-vis the grantee (emphyteuta) so much so that it disallows even the State (the collector) to order reversion of the lands granted to emphyteuta with the use of powers of conferred by Section 21(2)(f) of the Goa, Daman and Diu Land Revenue (Disposal of Government Lands) Rules, 1971. 19. The defendant No.1 Vinayak pleaded in his written statement that after the death of common ancestor Mr. Pandurang Gadgil in the year 1964. the predecessors in title of the plaintiffs Mr. Gajanan Gadgil and his wife were entitled to 1/3rd share of all the assets particularly immovable properties admeasuring 1580405 square meters referred to in the para 2 of the statement including the Vaghurem properties; and by sale deed dated 13.3.1968. Mr. Balkrishna Gadgil and his wife Mrs. Suhas Balkrishna Gadgil had sold their shares in the ancestral property to Mr. Vinayak Gadgil, the defendant No.1. Mr. Balkrishna Gadgil and his wife Mrs. Suhas Balkrishna Gadgil had sold their shares in the ancestral property to Mr. Vinayak Gadgil, the defendant No.1. The defendant No. 1 Vinayak Gadgil produced in his evidence certified copy of the sale deed dated 13.3.1968 Exh. DW 1/C. A look at the sale deed Exh. DW 1/C reveals in clear terms that the suit property "Nangor sorvoi" in the village Vaghurem was one of the properties received by way of the said Gift Deed executed by the common ancestor Pandurang Janardan Gadgil and his second wife i.e. the stepmother of the defendant No. 1 Vinayak, and each of the brothers Gajanan, Balkrishna and Vinayak the defendant No. 1 along with their respective wives had 1/3rd share in the said suit property at village Vaghurem. Pertinently, the said sale deed Exh. DW 1/C which bears signatures of constituted Attorney of the Vendors Balkrishna, his wife Suhas and the purchaser Vinayak Pandurang Gadgil, acknowledges the fact of joint possession of the properties mentioned therein including the suit property in the hands of the defendant No. 1 Vinayak Pandurang Gadgil, the defendant No. 2 Vinita his wife and the deceased predecessor of the plaintiffs Ganesha @ Gajanan and his wife Jayanti @ Premlata. 20. The next question that arises from the arguments of the rival parties and the evidence is whether the defendant Nos. 1 and 2 were enjoying the suit property as their own openly, peacefully and adversely against all the other brothers, the co-owners of the suit property and had perfected their title over a period of time. The learned advocate Usgaonkar for the appellants argued that the trial court had a erred in holding that the gazette publication under Section 148 of the said "Regimen of Assignment of lands" was in fact assertion of hostile title of the land in favour of the defendant No.1, Vinayak Gadgil and had ignored real impact of the award Exh DW 1/D dated 17.3.1975 on the erroneous assumption that the Award made no mention of the suit property "Nangr Sorvoi" for the purpose of resolution of the dispute between the defendant No. 1 Vinayak and the plaintiffs' predecessor Gajanan in respect of the common property. The learned advocate Usgaonkar for the appellants, relying on the judgment reported in AIR 1971 SC 1337 in Shambhu Prasad Singh v. Most. The learned advocate Usgaonkar for the appellants, relying on the judgment reported in AIR 1971 SC 1337 in Shambhu Prasad Singh v. Most. Phool Kumari and others, submitted that there could not have been any adverse possession of the suit property against the co-sharers/owner-plaintiffs' predecessor-in-title in absence of evidence of open assertion of a hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of the other. He further submitted that the notice in the revenue records do not confer any title to the property and in order to fortify this submission he relied upon the judgment reported in (1996) 5 SCC 618 , Durgadas v. Collector and others. The learned Advocate Lotlikar for the defendant/respondent No. 1 Vinayak Gadgil submitted that the alleged co-ownership of the suit property being in shadow, the plaintiffs/appellants claiming to be usufructory rights holder dominium utile cannot challenge the ownership rights dominium directum and consequently, the sale deeds in question. In his view, the gazette publication ought to have been challenged and foundational relief claiming co-ownership in the suit property ought to have been claimed. Having not done so, he argued, the present suit in the light of the ratio in the judgment reported in 2005 (5) SCC 548 N.V. Shrinivasa Murthy v. Mariyamma and others, ought to fail. With the publication of the notification under Section 148 of the said "Regimen of Assignment of Lands" in the Government Gazette, her argued, the parties including the plaintiffs/appellants were put on notice about the assertion of hostile title by the defendant No. 1 Vinayak and as such the suit was hopelessly time barred. He placed reliance on the judgment reported in AIR 1954 SC 337 , Wuntakal Yalpi Chana Basavana Gawda v. Raobahadur Y. Mahabaleshwarappa and another. He submitted that redemption of Ground Rent and declaration of the defendant No.1 Vinayak as a sole holder of the suit property amounted to an ouster and thus, exclusive possession of the suit property in hands of the defendant No. 1 Vinayak became adverse to the plaintiffs predecessor-in-title. 21. As discussed above. a complete dominion over the property-dominium plenum was in fact the result of the union of dominium direction with dominium utile i.e. union of the title and the exclusive use-dominium directum et utile. 21. As discussed above. a complete dominion over the property-dominium plenum was in fact the result of the union of dominium direction with dominium utile i.e. union of the title and the exclusive use-dominium directum et utile. Redemption of Ground Rent on payment of 20 times foro, was merely an act, which brought about the union of the title and the exclusive use. In substance, therefore, the original title dominium utile on payment of 20 times of foro metamorphosed a into dominium plenum without any change in configuration of rights. Gazette publication made by the State in respect of the redemption of the ground rent by the defendant No.1, one of the co-owners, therefore, cannot be viewed in view of the .aforesaid discussion as assertion of any hostile title by the defendant No. 1 Vinayak Gadgil in respect of the suit property amounting to ouster of the other co-owner. 22. The Award Exh. DW 1/E dated 17.3.1975 opens with the words ^^Jh jk- jk- xtkuu ikaMwjax xkMxhy] rqrZ eqDdke dyxqV] xksok o Jh jk-jk- fouk;d ikMqjax xkMxhy] eqDdke [kksM;s] lk[kyh&&xksok ;kap;k [kksM;s o xksO;krhy brj fBdk.kh vlysY;k lekbZd LFkkoj feydrh laca/khpk fuokMk”kward** Award also speaks of partition between Narayan Janardan Gadgil and Pandurang Janardan Gadgil (the common ancestor of the plaintiffs and the defendant Nos. 1 and 2) with Consequent apportionment of the properties at Khodem, Sakhali and Madoil to the share of Pandurang Janardan Gadgil. Though the Award makes no reference to the suit property in express terms, it concerns all properties held jointly by the parties to the Award in following terms : mjysyh loZ tfeu vkt Jh fouk;d ikaMqjax xkMxhy ikaP;k okfgokVhyk vkgsr- vkt th feydr lkekbZd vkgs rh eq[;Rosd:u [kksM;s ;k xkoh vkgs- lkjka’k Jh xksfoan ukjk;.k xkMxhy ;kap;k ers nksu Hkkokrhy lkekbZd feydrhph okV.kh [kkyhyizek.ks Ogkoh- v½ loZ lkekbZd LFkkoj feydr Jh- fouk;d ikaMqjax xkMxhy ;kaP;k okV;kl tkoh- c½ Jh fouk;d ikaMwjax xkMxhy ;kauh rk- 31-3-76 o”ksZ v[ksji;Zar Jh- xtkuu ikaMwjax xkMxhy ;kal :- 21]000@& n;kosr- d½ ojhy jDde iksgksp gksrkp fdaok nksUgh HkkokaP;k laerhus vxksnj fdaok uarj Jh- xtkuu ikaMwjax xkMxhy ;k ;kaP;k iRuh o nksUgh ewys ;kauh lekbZd feydrhojhy vkiys loZ gDd ljdkjh njckjh dk;ns’khjfr;k lksMwu n;kosr- M½ nksUgh HkkokaP;k lkiRu ekrksJh Jh jk/kkckbZ ;kaP;k mnjfuokZgkph uSfrd tckcnkjh nksUgh Hkkokaoj jkfgy----------- 23. Close scrutiny of the award dated 17.3.1975 Exh. Close scrutiny of the award dated 17.3.1975 Exh. DW 1/E reveals that the Arbitrator Govind Narayan Gadgil had marshalled the facts such as (i) acquisition of the property at Khode, Sakhali. Madoli by the common ancestor Pandurang Gadgil by virtue of Partition (ii) history of affairs leading to the settlement of siblings Gajanan, Balkrishna and the defendant No. 1 Vinayak at separate places in different vocations (iii) improvement in the immovable property by the common ancestor Pandurang Janardan Gadgil with consequent sale of his share in favour of Gajanan and Vinayak. (iv) immovable properties remaining unpartitioned during the life time of the common ancestor Pandurang Gadgil. (v) indifference of the deceased Balkrishna towards common properties and consequent sale of his share in favour of Gajanan and Vinayak (vi) struggle and acquisition of properties by Vinayak and its merger in the common properties. (vii) stepmother Radhabai's maintenance at the expense of Gajanan and Vinayak. (viii) marriage of three a daughters of the common ancestor Pandurang and relinquishment by them of their right, title, interest in the properties of the common ancestor Pandurang. (ix) sale of properties at Khode, Madoli and distribution of sale proceeds amongst Gajanan and Vinayak (x) use and occupation of the all remaining immovable common properties by Vinayak. (xi) financial standing of Gajanan and Vinayak and their respective financial commitments (xii) joint consultation of the Arbitrator with Gajanan and Vinayak, and their consensual preference for getting the Award at the hands of the Arbitrator. (xiii) Award in respect of the common properties at the hands of the Arbitrator, their cousin Govind Narayan Gadgil in order to arrive at the said Award effecting apportionment of all the common immovable properties to the defendant No.1 Vinayak on payment of Rs. 21,000/- to Gajanan, the predecessor of the plaintiffs by the defendant No. 1 Vinayak. Pertinently, the liability of maintaining the stepmother Radhabai remained commonly on the Gajanan and the defendant No. 1 Vinayak as before. 24. Award Exh. DW 1/E as scrutiny shows. 21,000/- to Gajanan, the predecessor of the plaintiffs by the defendant No. 1 Vinayak. Pertinently, the liability of maintaining the stepmother Radhabai remained commonly on the Gajanan and the defendant No. 1 Vinayak as before. 24. Award Exh. DW 1/E as scrutiny shows. sends clear signals that there was no assertion of any hostile title being set up by the defendant No. 1 Vinayak co-owner as regards the common properties of the plaintiffs' predecessors and the defendant No. 1 Vinayak including Vaghurem property, and in fact the defendant No. 1 Vinayak had acknowledged the fact of co-ownership of the plaintiffs' predecessor Gajanan of all the immovable properties coming in their hands from the common ancestor Pandurang Gadgil and use and occupation of the defendant No. 1 Vinayak since then. 25. The learned single Judge, S.D., Bicholim completely overlooked this aspect of the matter on the premise that said Award made no mention of the suit property at Vaghurem village as the immovable property left by late Pandurang Gadgil and the ward was passed after the redemption of ground rent in 1971 by the defendant No. 1 Vinayak and consequent acquisition of the suit property in his name. As discussed above, by virtue of the redemption of the ground rent, there was no acquisition of title dominium directum in respect of the suit property by anyone of the co-owners but the title stood acquired by all the co-owners i.e. Gajanan, Balkrishna and defendant No. 1 Vinayak. 26. Thus the award Exh DW 1/E, in fact, was regarding all common properties, which came in hands of Gajanan and the defendant No. 1 Vinayak after the sale of share of Balkrishna, one of the co-owners in favour of the Gajanan and Vinayak. Non- mentioning of the suit property situate at Vaghurem village specifically in the Award, therefore, does not make any difference. 27. Entire evidence does show that the defendant No.1 Vinayak was in actual physical possession and enjoyment of the suit property and this fact is also reflected in the revenue records and the plaintiff did not object to this ground reality till the time, they learnt about the execution of the sale deeds in question. The fact of the co-ownership of the suit property spells out that the co-owner in a possession, is a constructive trustee on behalf of the other co-owners not in possession. The fact of the co-ownership of the suit property spells out that the co-owner in a possession, is a constructive trustee on behalf of the other co-owners not in possession. To constitute adverse possession against the co-owner, there has to be open assertion of hostile title coupled with exclusive possession and enjoyment by one of them to the knowledge of other and only then, there could be ouster of non-possessing co-owner from the properties commonly held by them. This has been the ratio decidendi made available in the decision in Shambhu Prasad Singh's case (supra). This ratio decidendi was arrived at with reference to the Wuntakal Yalpi Chana Basavana Gawda case (supra) cited by the respondent No. 3 in the present case. Wuntakal Gawda's case speaks about the method by which the adverse possession can be broken once the possession of the co-owners becomes adverse to the other co-owner as a result of ouster. In the instant case, there has been no ouster of Gajanan, the predecessor in title of the plaintiffs from the suit property and this can be further construed from the award Exh. DW 1/E. 28. It is revealed that the sale deeds in respect of the suit property were executed by the defendant Nos. 1 and 2 in favour of the defendant No. 3 in October, November and December. 1985. This has been indeed open assertion of setting up of a hostile title to the suit property by the co-owner the defendant No. 1 Vinayak. The suit for declaration as co-owners, was instituted in April 1995. Obviously, the suit was not time barred being instituted within a period of twelve years from the date of such assertion. 29. If the co-ownership of the predecessor of the plaintiffs and the defendant No. 1 Vinayak survives, it logically puts to question the bona fide of the transaction of sale by the defendant No. 1 Vinayak and defendant No. 2/Vinata in favour of the defendant No.3 M/s. Chowgule and Company Private Ltd. In this connection, the defendant No.3, through their written statement, contended that they are bona fide purchasers for value of the suit property. The learned Civil Judge, however, erroneously framed issue No. 2 requiring the plaintiffs to prove the invalidity of the sale deeds in question being done in violation of their rights and without their consent. The learned Civil Judge, however, erroneously framed issue No. 2 requiring the plaintiffs to prove the invalidity of the sale deeds in question being done in violation of their rights and without their consent. Issue, therefore, needs to be correctly resettled as under : "Whether the defendant No.3 M/s. Chowgule and Company Ltd. proves that they were the bonafide purchaser for value by virtue of the said sale deeds executed by the defendant Nos. 1 and 2 in respect of the suit property in their favour?" Evidence of PW 1/Varada Ghaisas, a constituted attorney of her brother the plaintiff No. 1 Arun and his wife the plaintiff No.2 Smita, shows that virtually, the plaintiffs wre absentee landlords and she had visited the suit property in the year 1983. A suggestion that the suit property was totally barren at the time of her visit was put to her. The fact of her visit to the suit property in the year 1983 was, therefore, not under challenge. It appears from her evidence in the a cross-examination that she remained conscious of the fact that the defendant No.1 Vinayak was enjoying and possessing the suit property on their behalf. Her cross-examination shows that she was not in position to question the market value of the suit property as shown in the sale deed. However, her evidence shows, she did not dispute the payment of total price to the defendant No. 1 Vinayak and defendant No.2 Vinita under the said sale deeds. Nothing more which can throw light on this aspect of the matter can be found in the evidence of PW 1/Varada Ghaisas. 30. DW 1 Vinayak Gadgil deposed that all the ancestral properties remained in his possession and enjoyment as his brothers including the predecessor of the plaintiffs were out Goa. He claimed in his evidence that the suit property belonged to him by virtue of allotment done by the Government in his favour in the year 1971 on payment of total rent (foro) vide gazette publication Exh. DW 1/A and after such allotment the suit property, was put to cultivation of cashew crop. This property, he deposed, was sold to the defendant No. 3/M/s. Chowgule and Company Pvt. Ltd. and the same was being put to use by the defendant No. 3 Company under mining lease. DW 1/A and after such allotment the suit property, was put to cultivation of cashew crop. This property, he deposed, was sold to the defendant No. 3/M/s. Chowgule and Company Pvt. Ltd. and the same was being put to use by the defendant No. 3 Company under mining lease. There is no whisper in his cross-examination regarding he producing the title deeds more particularly the alvara, which he was required to submit with the application made to the State for redemption of ground rent leading to the publication in the government gazette under Section 148 of the said Regimen of Assignment of Lands under Decree No. 3602 dated 24.11.1970, before the buyer, the defendant No. 3/Chowgule and Private Company Ltd. upon the request made for its examination. On the other hand, his cross-examination shows that initially he was not in a position to say with certainly whether he had alvara in his possession and later on averred that he did not have alvara of the suit property. There is no further cross-examination of DW 1/Vinayak on this aspect. 31. DW 2/Sawaikar Keshav Barve and DW 4/Chandrabhaga Gadgil did not contribute much on this aspect except saying that the suit property was in possession of the defendant No. 1/Vinayak, and that Gajanan, the predecessor of the plaintiffs, used to visit the ancestral home at Khode almost every year. 32. DW 5 Dattaram Prabhu, a land holder in the neighbourhood of the suit property, deposed that the grant of the suit property "Nangor sorvoi" at village Vaghurem was made by the Government in favour of the defendant No. 1/Vinayak and the defendant No. 2/Vinita. Vinayak had planted cashew trees in the said trees. His cross-examination revealed that he had not seen the document showing the grant of affarmento made by the Government in favour of the defendant No. 1/Vinayak. However, his evidence becomes relevant so far as the popular perception of the ownership of the suit property prevailing at village Vaghurem at the material time. 33. His cross-examination revealed that he had not seen the document showing the grant of affarmento made by the Government in favour of the defendant No. 1/Vinayak. However, his evidence becomes relevant so far as the popular perception of the ownership of the suit property prevailing at village Vaghurem at the material time. 33. On this background, it is necessary to assess pertinent evidence of DW 6 Juliano Rodgrigues, an authorised witness of the defendant No.3 M/s. Chowgule and Company Private Ltd. The learned Advocate Lotlilkar for the defendant No. 3 Company, urged the Court to evaluate the evidence on this aspect by applying the test spelt out in the case reported in AIR (30) 1943, Madras 459, Kovvuri Satyanarayana Murthi and others v. Tetali Pydayya and others, and to find out whether the defendant No. 3 Company acted like a reasonable person of business and with ordinary prudence. The defendant No. 3 M/s. Chowgule and Company Pvt. Ltd. as its name suggests, is not an individual but a corporate body nm through its officers one of them being DW 6 Juliano Rodrigues. This fact needs to be borne in mind while understanding reasonableness in the action of the defendant No.3 Company. DW 6 Rodrigues deposed that the suit property popularly known as Nangor sorvo situated at Vaghure was purchased by the defendant No. 3 Company from the defendant No. 1 Vinayak and the defendant No.2 Vinata on payment of market value in the year 1985 vide eight sale deeds DW 1/G collectively; and it was represented to them by the Vendors with the land record form No. 1 and XIV and gazette publication No. 49 dated 5.3.1971 Exh. DW 1/A in respect of the suit property that the property belonged to them by virtue of redemption of the ground rent. Pertinently, he deposed, the inquiries were made in respect of the suit property in village Vaghurem and they had bona fidely believed the representations made to them by the Vendors as to the possession and ownership of the suit property. According to the DW 6 Rodrigues reasonable inquiries were made by them regarding the authority of the Vendors to transfer the suit property to them. 34. According to the DW 6 Rodrigues reasonable inquiries were made by them regarding the authority of the Vendors to transfer the suit property to them. 34. Cross-examination of DW 6/Rodrigues reveals that he was conversant with Portuguese and could understand Portuguese documents of title; and throughout his career beginning as Office Assistant till his retirement as Administrative Officer he had occasions to deal with several purchases of the properties in favour of the defendant No.3 Company. His cross-examination further reveals that he was the only person, who used to investigate the papers and title documents and do the ground work for purchase of immovable properties made by the Company and to give report to the Executive Directors. This fact shows that the Executive Directors of the Company acted through him in understanding the worth of the transaction of purchase of immovable properties. Though cross-examination of DW 6 Rodrigues reveals that the defendant No. 1 Vinayak and his father Pandurang served Chowgules the Executive Directors of the Company as family priests, their vision regarding the property transactions was governed by the report regarding the investigation of the title done by the DW 6 Rodrigues. According to DW 6 Rodrigues he used to take a document of title for better understanding to the company's lawyer apparently, a person who drafted the sale deed, a Senior Advocate. Though the sale deed referred to the description of the suit property by giving description No. 14084, he deposed, his Advocate had not advised them about relevance or significance of such description and they did not investigate any further because they were convinced of vendor's title from the land record form No. 1 and XIV and gazette publication Exh. DW 1/A. He added that the defendant No. 1 Vinayak had told the defendant Company that he was the sole owner of the suit property and his brothers had been allotted some other property. 35. The cross-examination of DW 6 Rodrigues leaves some unanswered questions in the evidence. It is not clearly understood from the evidence as to what enquiries DW 6 Rodrigues had made at village Vaghure and with the defendant No.1 Vinayak in order to ascertain the claim of the defendant No. 1 Vinayak to the sole ownership of the suit property. 35. The cross-examination of DW 6 Rodrigues leaves some unanswered questions in the evidence. It is not clearly understood from the evidence as to what enquiries DW 6 Rodrigues had made at village Vaghure and with the defendant No.1 Vinayak in order to ascertain the claim of the defendant No. 1 Vinayak to the sole ownership of the suit property. Moreover, the defendant company had its legal department manned by the legally qualified Law graduates, who could offer their services for the purpose of scrutiny of the documents. What happened between DW 6 Rodrigues and the said legal department as well as the Executive Directors of the Company regarding verification of the title of the defendant No. 1 Vinayak to the suit property has also remained shrouded in the evidence. Ordinarily, the Government Gazette Publication under Section 148 of the said enactment has a potential to suggest that the redemption of ground rent was made following the submission of the title deed alvara and payment of 20 times foro in favour of the concessionor named therein. Unfortunately nothing has been done in the cross-examination of the DW 6 Rodrigues to elicit an answer to the pertinent question as to whether there was insistence on the part of the purchaser the defendant No. 3 Company for delivery of the title deeds/alvara in respect of the suit property with the defendant No. 1 or not and if the answer is in affirmative, what actually had happened in response to such insistence. These and such other material questions if answered in the evidence, would certainly have provided answer to the ultimate question as to whether the defendant No. 3 Company had acted like a reasonable man of business with ordinary prudence in course of striking a deal of purchase of the said land in his favour. Lack of answers to such questions in the evidence perhaps can be ascribed to the failure of the learned Civil Judge S.D., Bicholim in framing the proper issue. The evidence on record is, therefore, not sufficiently enough for us to give finding on such material issue and pronounce the judgment in 'consequence thereof. 36. Lack of answers to such questions in the evidence perhaps can be ascribed to the failure of the learned Civil Judge S.D., Bicholim in framing the proper issue. The evidence on record is, therefore, not sufficiently enough for us to give finding on such material issue and pronounce the judgment in 'consequence thereof. 36. Consequently, it is necessary to remand this case to the trial Court with the following resettled issue : "Whether the defendant No.3 M/s. Chowgule and Company Ltd. proves that they were the bona fide purchasers for value by virtue a of the said sale deeds executed by the defendant Nos. 1 and 2 in respect of the suit property in their favour?" For trial under Order 41, Rule 25 of the Civil Procedure Code, 1908. 37. The suit is remanded/referred to the learned Civil Judge S.D. Bicholim to try the aforesaid resettled issue and return its finding thereon within a period of six months from the date of this judgment. Parties shall be free to lead additional evidence on the said issue and for the purposes of leading evidence, shall appear before the trial Court on. No order as to costs. Appeal allowed.