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2011 DIGILAW 1196 (BOM)

Anastasio Gomes v. Bernado Gomes

2011-09-23

F.M.REIS

body2011
JUDGMENT F.M. REIS, J. 1. The above second appeal challenges the judgments and decrees passed by the Courts below in the suit rued by the appellants inter-alia for a declaration that the appellants are the owners in possession of the property known as "AFORAMENTO SEM DENOMINACAO ESPECIAL, situated at Gogola ward, Margao City, District of Goa, Sub-District and Taluka of Salcete, registered under Land Registration Office of Salcete under No.29019 of Book B of new series, enrolled in the land revenue records under Matriz No.1048 with specific boundaries and surveyed in the city survey records under Chalta Nos. 1, 2, 3, 4, 5, 6, and 7 of P.T. Sheet No.131 of Margao City. The said property is referred to in the plaint as the suit property. The learned Civil Judge Junior Division, Margao, by judgment and decree dated 21.07.2008 passed in Regular Civil Suit No. 131/2006/E dismissed the suit rued by the appellants. Learned Judge whilst passing the said judgment has come to the conclusion that the appellants have failed to establish that they were lawful owners of the suit property and consequently the reliefs sought by the appellants came to be declined. Being aggrieved by the said judgment and decree the appellants preferred an Appeal being Regular Civil Appeal No. 111 of 2008 before the learned District Judge, South Goa, Margao, which appeal came to be dismissed, by judgment dated 02.01.2009. The learned District Judge whilst passing the impugned judgment came to the conclusion that the appellants have failed to establish that they are exclusive owners in possession of the suit property and that they are entitled for the declaration as prayed for. Being aggrieved by the said judgments and decrees, passed by the Courts below, the appellants preferred the above Second Appeal which came to be admitted on the following substantial question of law:- Whether the conclusions drawn by the Courts below that the appellants are not exclusive owners and not in exclusive possession of the suit plots, is perverse? 2. Shri S.D. Lotlikar, learned Senior Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that on the basis of the pleadings of the parties, there was no dispute that the suit property belongs to the appellants. 2. Shri S.D. Lotlikar, learned Senior Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that on the basis of the pleadings of the parties, there was no dispute that the suit property belongs to the appellants. The learned Counsel has taken me through the written statement filed by the respondents and pointed out that there is no dispute raised by the respondents to the effect that the appellants were the owners of the suit property. The learned Counsel further pointed out that the only contention raised by the respondents was that they were in occupation of a portion of the house located in the suit property and as such were claiming co-ownership right to the suit property. The learned Counsel further pointed out that during the life time of the appellants no right accrued to the respondents in any of the immovable property belonging to the appellants as admittedly there is no transfer or disposition in their favour executed by the appellants. The learned Counsel further submitted that on the basis of the evidence on record which conclusively establishes that the appellants are the owners in possession of the suit property, the Courts below have erroneously come to the conclusion that merely because the respondent No.1 is the son of the appellants he had a right to the suit property. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has totally misdirected itself in appreciating the well settled principles of law applicable to such disputes and as such the impugned judgment deserves to be quashed and set aside and the suit filed by the appellants be decreed as prayed for. 3. On the other hand, Shri J.P. Mulgaonkar, learned Counsel appearing for the respondents has supported the impugned judgment. The learned Counsel has pointed out that the respondents are in possession of a portion of the suit house and as such the question of any declaration of possession in favour of the appellants would not arise at all. The learned Counsel did not dispute that the ownership of the suit property was with the appellants. The learned Counsel further submitted that there is no cause of action established by the appellants which would entitle them to seek a declaration as prayed for in the suit. The learned Counsel did not dispute that the ownership of the suit property was with the appellants. The learned Counsel further submitted that there is no cause of action established by the appellants which would entitle them to seek a declaration as prayed for in the suit. The learned Counsel further pointed out that mere entry in the survey records does not give cause of action to file the present suit. 4. Having heard the learned Counsel for the parties and on perusal of records, I find that in the plaint filed by the appellants they have clearly stated at paras 2, 3, 4, 5, 6 and 7 the manner in which the appellants derived ownership to the suit property. On perusal of contents of the written statement flied by the respondents in connection with the said paras, the only averment made in the written statement is that in view of the fact that the respondents are in possession of a part of the suit house, the respondents are in joint ownership and have occupation right over the suit property. In support of their claim of ownership over the suit property, the appellants have produced the document of title which includes the deed of partition which is at Exhibit 15. On perusal of the said deed, I find that plot Nos. 1, 5, 7 and 8 which corresponds to the property surveyed under Chalta No.28 of P.T. Sheet No.158, Chalta No.22 of P.T. Sheet No.131. Chalta No.2 of P.T. Sheet No.131 and Chalta No.3 of P.T. Sheet No.131 were allotted to the appellants herein. On the basis of the said documentary evidence which has not been disputed by the respondents the Courts below were not justified to come to the conclusion that the appellants were not the owners in possession of the suit property. The document of title produced by the appellants conclusively establishes that they have title and ownership as far as the suit property is concerned. There is no dispute that the respondent No.1 is the son of the appellants. It is well settled that possession follows the title but however there is no relief sought by the appellants with regard to the occupation of any portion of the suit house by the respondents as in view of the above, the respondents are not occupying any such portion on account of any ownership rights in the suit property. It is well settled that possession follows the title but however there is no relief sought by the appellants with regard to the occupation of any portion of the suit house by the respondents as in view of the above, the respondents are not occupying any such portion on account of any ownership rights in the suit property. Be that as it may under the provisions of Article 2011 of the Portuguese Civil Code, which is still in force in Goa, the right of c inheritance devolves only upon the death of the estate leaver. Hence, the question of claiming any right to the suit property during the life time of the parents would not arise at all. As such considering the well settled principles of law applicable, the Courts below are not justified to refuse the declaration as prayed for by the appellants to the effect that they are the owners in possession of the suit property. The contention of Shri Mulgaonkar that the appellants have no cause of action to file the suit cannot be accepted. As a doubt was created in the title of the appellants in view of the entries in the survey records, the appellants are entitled to seek such a declaration to clear the cloud over the ownership in the suit property. The substantial question of law is answered accordingly. 5. With regard to the second relief sought by the respondents, this Court in the judgment reported in 2006(4) AIR Bom. R 88 in the case of Smt. Anandi Bhicaro Veluskar vs. Kustanand Vithu Veluskar and another, has held that the Civil Court have no jurisdiction to direct the survey authorities to effect entry in the survey records but however the declaration obtained from the Civil Court would be binding on the survey authorities. Hence, for the reasons stated herein above, I pass the following:- ORDER (i) The impugned judgments and decrees passed by the Courts below dated 21.07.2008 and 02.01.2009 are quashed and set aside. (ii) The suit filed by the appellants bearing Regular Civil Suit No. 131/2006/E is partly decreed in terms of prayer clause (a). (iii) The appeal stands disposed of accordingly with no order as to costs.