Judgment : Heard Shri Sudin Usgaonkar, learned Counsel appearing for the Appellants, Shri S. D. Lotlikar, learned Counsel appearing for Respondent nos. 24(i), 25 and 26 and Shri Joshi, learned Counsel appearing for the Respondent nos. 27 and 28. 2. The above Second Appeal was admitted by this Court by an Order dated 06.11.2003 on the following substantial question of law: “1) Whether the contesting Respondents had locus standi to file the Regular Civil Appeal opposing the decree of declaration, when: i) the Appellants had not filed suit against the contesting Respondents but the pleadings and the relief was directed against the Respondent no. 1 only who gave cause of action. ii) the contesting Respondents had not filed counter claim seeking inclusion of their names in survey record. 2) Whether although the final decree incorporates the prayer, omission to reproduce the prayer in the judgment and order after stating that the suit is decreed is fatal making the decree ineffective and unexecutable leading to dismissal of the suit? 3) Whether matriz record and cadastral survey record is a title document and can be equated to the title in the Form of registered deed of Partition and corresponding inscription record in the Land Registration under Codigo Registo Civil to rebut the same? 4) Whilst seeking declaration of ownership challenging an entry in the column of occupant, is it necessary to implead the parties whose name figuring the column of other rights in Survey Form I and XIV? 5) Whether the cases of two sets of the Respondents are contrary to each other, can it be held that they proceed on a common ground and when in such situation one set of the Respondents do not appeal and accept the decree, does benefit of allowing the appeal filed by the second set of the Respondents enure to the first set of the Respondents?” 3. During the course of the hearing of the above Appeal, Shri Usgaonkar, learned Counsel appearing for the Appellants fairly did not press for the aforesaid substantial questions of law framed by this Court but pointed out that the only substantial question of law which arises in the present Appeal would be as follows: “6) Whether the Lower Appellate Court was justified to come to the conclusion that the Appellants were not entitled for a declaration of ownership by misconstruing the documents of title produced by the Appellants namely the Deed of Partition at exhibit Pw.1/B and the Land Registration document at exhibit Pw.1/C?” 4. By consent of the learned Counsel appearing for the Respondents, the above substantial question of law is framed for consideration in the above Appeal. 5. Briefly, the facts of the care are that the Appellants filed a suit initially against the Respondent nos. 1 to 23 on the ground that the said Appellants and the Respondent nos. 2 to 23 are the owners in possession of a property known as “BagayatGharbhat Tucda” situated at Talaulim, within the Taluka of Ponda and registered in the land registration office under no. 13365 and surveyed under survey no. 25/23. The suit property is bounded on the East by the Rivulet and property “Cans” of Caetano Filomena de Figueredo now purchased by Shri Bandekar, on the west by top of the hill, on the south by paddy field now purchased by Bandekar and on North by property of the family of Sardessai. It is further their case that the said property is surveyed in the Record of Rights of Talaulim Village of Ponda Taluka under no. 25/23. It is further their contention that in the suit property they have a house and that they have been enjoying the fruit bearing trees existing therein. It is further their contention that the property originally belonged to the ancestors of the Appellants namely Fottu Honu Naik Palny and Nonu Honu Naik Palny, who were each owners of half of the property. It is further their contention in the plaint that the rights to the said property from the said two ancestors devolved upon the Appellants and the Respondent nos. 2 to 23. It is further their case that in the Survey Records in the occupants column besides the name of the Appellants, the name of Respondent no. It is further their contention in the plaint that the rights to the said property from the said two ancestors devolved upon the Appellants and the Respondent nos. 2 to 23. It is further their case that in the Survey Records in the occupants column besides the name of the Appellants, the name of Respondent no. 1 also figures as co-occupant of the said property. It is further their case that the Respondent no. 1 had no right at all to the said property and that the entry in the name of the Respondent no. 1 was erroneous and, consequently, they were forced to file the said suit praying inter alia for a declaration that the Appellants and the Respondent nos. 2 to 23 be declared as owners of the said suit property. 6. The Respondent no. 1 filed their written statement and disputed the claim of the Appellants. The Respondent no. 1 admitted the identity of the said property but contended that the Respondent no. 1-Devasthan are the owners of the said property and the same is given to the Appellants and other persons for cultivation on the basis of their rendering services to the Devasthan as laid down in the Devasthan Regulations. The said Respondents also disputed that the Appellants were the owners of the said property. 7. During the pendency of the said suit, the Respondent nos. 24 to 30 filed an application to be impleaded in the said suit claiming an interest in the suit property. By an Order passed by the learned Trial Judge dated 18.06.1984, in view of the no objection of the Appellants, the application came to be granted and the said Respondents were impleaded in the suit. Thereafter, a written statement came to be filed on behalf of the said Respondents also disputing the said claim put forward by the Appellants. At para 4 of the said written statement, the said Respondents disputed the claim of the Appellants that they were owners of the said property. It was pointed out by the said Respondents that Shri Bhagwant Rama Naik, Shri Anant Raghunath Naik, Shri Gopal Shiva Naik, Shri Hulo Gopal Naik and Rama Morto Naik are the heirs of Zaio Pandu Naique and the other Respondents namely Indiri and Kamat are the heirs of Honu Palny. It was pointed out by the said Respondents that Shri Bhagwant Rama Naik, Shri Anant Raghunath Naik, Shri Gopal Shiva Naik, Shri Hulo Gopal Naik and Rama Morto Naik are the heirs of Zaio Pandu Naique and the other Respondents namely Indiri and Kamat are the heirs of Honu Palny. It was further their case that they are entitled to two third share in the said property by way of lawful right and also by prescription. In para one of the said written statement, it was further the case of the said Respondent that the Appellants along with the said Respondent nos. 24 to 30 are in joint enjoyment and possession of the suit property. 8. The learned Judge after framing the issues and recording of evidence, by Judgment and Decree dated 15.12.1998, decreed the suit filed by the Appellants and directed the rectification of the Survey Records. Being aggrieved by the said Judgment and Decree, the Respondent nos. 24 to 30 preferred an Appeal before the learned District Judge, North Goa, Panaji. By Judgment and Decree dated 29.04.2003, the appeal came to be allowed and the impugned Judgment and Decree passed by the learned Trial Judge was quashed and set aside and, consequently, the suit filed by the Appellants came to be dismissed. 9. Being aggrieved by the said Judgment and Decree passed by the Lower Appellate Court, the Appellants preferred the above Second Appeal which is being considered on the aforesaid substantial question of law. 10. Shri Sudin Usgaonkar, learned Counsel appearing for the Appellants has submitted that the Appellants, have established by cogent evidence on record that the Appellants are owners in possession of the suit property. Learned Counsel has further taken me through the Deed of Partition exhibit Pw.1/B and pointed out that the property originally belonged to the ancestors of the Appellants namely one Shri Nonu and Shri Fottu and that the property thereafter devolved upon the Appellants and the Respondent nos. 2 to 23 in view of the averments in the plaint and substantiated in the evidence of Pw.1. Learned Counsel further pointed out that the Respondent nos. 24 to 30 are not entitled to dispute the right of the Appellants to the suit property and, in fact, such right has not been disputed by the said Respondents in their written statement. Learned Counsel has further pointed out that as the Respondent no. Learned Counsel further pointed out that the Respondent nos. 24 to 30 are not entitled to dispute the right of the Appellants to the suit property and, in fact, such right has not been disputed by the said Respondents in their written statement. Learned Counsel has further pointed out that as the Respondent no. 1 has not challenged the Judgment of the learned Trial Judge, the Decree of declaration granted by the learned Trial Judge has become final and as such the question of interference in the Judgment of the Trial Court by Lower Appellate Court, is not at all justified. Learned Counsel has further taken me through the land registration document at exhibit P.w.1/C and pointed out that the property which is described therein correspondents to the suit property surveyed under no. 25/23 which is not at all disputed and considering the inscription therein, the property stands inscribed in favour of the ancestors of the Appellants and, as such, the Lower Appellate Court was not justified to refuse the declaration sought by the Appellants. Learned Counsel has further taken me through the Judgment of the learned Trial Judge and pointed out that the learned Trial Judge has rightly appreciated the evidence on record and has come to the conclusion that the ownership of the Appellants over the suit property has been duly established. Learned Counsel has thereafter taken me through the Judgment of the Lower Appellate Court and pointed out that the Lower Appellate Court has misconstrued the land registration document, exhibit Pw.1/C, as well as the Deed of Partition, exhibit Pw.1/B, which is the source of title of the Appellants and has erroneously come to the conclusion that the Appellants are not entitled for declaration of ownership. Learned Counsel further pointed out that the Appellants do not dispute that the Respondent nos. 24 to 30 are occupying the houses in the suit property and, according to him, they are the Mundkars of the Appellants occupying the dwelling houses in the suit property. Learned Counsel further pointed out that the Lower Appellate Court has misconstrued the material adduced by the Appellants and has erroneously allowed the Appeal filed by the Respondent nos. 24 to 30 and set aside the Judgment passed by the learned Trial Judge. Learned Counsel further pointed out that the Lower Appellate Court has misconstrued the material adduced by the Appellants and has erroneously allowed the Appeal filed by the Respondent nos. 24 to 30 and set aside the Judgment passed by the learned Trial Judge. Learned Counsel as such submits that the substantial question of law framed by this Court, is to be answered in favour of the Appellants. 11. On the other hand, Shri S. D. Lotlikar, learned Senior Counsel appearing for the Respondent nos. 24(i), 25 and 26, has supported the impugned Judgment. Learned Senior Counsel has pointed out that the vagueness in the pleadings of the Appellants itself justifies interference by the Lower Appellate Court in the Judgment passed by the learned Trial Judge. Learned Senior Counsel further pointed out that it is well settled that a declaration under Section 34 of the Specific Relief Act, is discretionary and, considering that there is no cogent and conclusive evidence adduced by the Appellants to establish their ownership over the suit property, the question of any declaration as sought by the Appellants would not arise. Learned Senior Counsel has taken me through the judgment of the Lower Appellate Court and pointed out that the learned Judge has rightly found that the Appellants have failed to establish their ownership over the suit property and, as such, the question of granting any discretionary relief in favour of the Appellants does not arise. Learned Senior Counsel further pointed out that the Appellants do not dispute the fact that the Respondent nos. 24 to 30 are in occupation of part of the suit property and that in fact at the initial stage of filing of the suit, it was incumbent upon the Appellants to make the said Respondents as parties to the suit as the names of the said Respondents figure in the other rights column in the Survey Records. Learned Senior Counsel further pointed out that the question of raising the contention that the Respondent nos. 24 to 30 have no locus standi to file the appeal would not survive considering the fact that when said Respondents filed an application to be impleaded, the Appellants themselves did not object to such application. Learned Senior Counsel further pointed out that the question of raising the contention that the Respondent nos. 24 to 30 have no locus standi to file the appeal would not survive considering the fact that when said Respondents filed an application to be impleaded, the Appellants themselves did not object to such application. Learned Senior Counsel further pointed out that in view of the fact that the Appellants themselves admitted that the Respondents are entitled to a portion of the suit property, the question of granting any declaration of ownership would not arise. Learned Senior Counsel has taken me through the Judgment of the Lower Appellate Court and pointed out that the learned Judge has rightly appreciated the evidence on record and has come to the conclusion that the Appellants are not entitled for any declaration of ownership as claimed. 12. Shri M. S. Joshi, learned Counsel appearing for the Respondent nos. 27 and 28 has supported the contention of the learned Senior Counsel Shri S. D. Lotlikar. 13. I have carefully considered the submissions of the learned Counsel appearing for the rival parties. I have gone through the records as well as the pleadings of the parties and with the assistance of the learned Counsel the relevant portion of the evidence which form part of the paper book. The only aspect is to find out as to whether there was sufficient material on record to grant a declaration of ownership as claimed by the Appellants. The Lower Appellate Court has rightly held that a declaration under Section 34 of the Specific Relief Act 1963 is a discretionary relief and such declaration cannot be claimed as a matter of right unless there is cogent and conclusive evidence to substantiate such claim of the Appellants. 14. In the present case, in support of the claim of ownership put forward by the Appellants, the documentary evidence relied upon by the Appellants is at exhibit Pw.1/B and Pw.1/C. On perusal of exhibit Pw.1/B, the same discloses that it is a Deed of Partition executed way back in the year 1916 whereby the property was divided between two persons namely Fottu Naik and Nonu Naik. The document at exhibit Pw.1/C is a Land Registration document. On perusal of the said document at exhibit Pw.1/C, half share of the useful domain of the property was inscribed in the name of said Fottu Naik. The document at exhibit Pw.1/C is a Land Registration document. On perusal of the said document at exhibit Pw.1/C, half share of the useful domain of the property was inscribed in the name of said Fottu Naik. The full ownership of the property was not inscribed in the name of the said Fottu Naik. Thus, the useful domain in favour of the said Fottu is a right of enjoyment of the property and the ownership in his favour is the useful and beneficial ownership which is known as Dominium utile as distinguished from the dominium directum et utile. Such person, as such, is entitled to the immediate enjoyment of the land. 15. Thus, the stand taken by Respondent no.1 that the property belongs to the Devasthan and that only the right and enjoyment of the property was given to the Appellants as well as the Respondents for rendering specific services read with conjunction with the said inscription document which shows that the useful domain stand in the name of said Fottu would disclose that the Appellants cannot claim full ownership of the property. The Respondent no.1 during the course of the evidence before the learned Trial Judge has produced an extract of the register which records the properties of the Devasthan in accordance with the Devasthan Regulations which shows that the suit property stands in the name of the Devasthan. This inscription in the said book is of the year 1905 at exhibit Dw.2/B. On perusal of the said document, there is an averment therein to the effect that though the property is owned by the said Devasthan, the enjoyment thereof is given to some persons for rendering specific services. Reading the said document in the light of the land registration document exhibit Pw.1/C, I find that the Appellants have failed to establish their full ownership over the suit property as claimed by them. Taking note of the inscription in the land registration document, it is not open to the Appellants to claim that they are full owners of the suit property. 16. But, however, it is not in dispute that the Respondent nos. 24 to 30 are occupying specific portion of the property and even have their residential houses therein. The contention of the Appellants as to whether the Respondent nos. 24 to 30 are Mundkars or not is a matter to be adjudicated in appropriate proceedings. 16. But, however, it is not in dispute that the Respondent nos. 24 to 30 are occupying specific portion of the property and even have their residential houses therein. The contention of the Appellants as to whether the Respondent nos. 24 to 30 are Mundkars or not is a matter to be adjudicated in appropriate proceedings. But, however, taking note of the fact that a declaration under Section 34 of the Specific Relief Act, is a discretionary relief and no further relief has been sought, I find that the Lower Appellate Court was justified to come to the conclusion that there was no direct conclusive and clinching evidence to establish their ownership of the Appellants over the suit property. At this stage, Shri Sudin Usgaonkar, learned Counsel appearing for the Appellants has pointed out that the relief can be moulded to the effect that a declaration could be given as far as the possession of the Appellants is concerned over the suit property. But, however, taking note of the fact that it is not in dispute that the Respondent nos. 24 to 30 are also enjoying a portion of the suit property and there is no conclusive evidence adduced by the Appellants, about the capacity in which the said Respondents occupied the suit property, it would not be appropriate to grant such declaration in the present case. 17. Considering the said aspect, I find no reason to interfere with the impugned Judgment passed by the Lower Appellate Court. The Lower Appellate Court has rightly come to the conclusion that no declaration of ownership can be granted in favour of the Appellants. Hence, the substantial question of law is answered accordingly. 18. In view of the above, the Appeal stands dismissed with no Order as to costs.