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2012 DIGILAW 1395 (BOM)

Catarina Fernandes v. Jose Menino Rodrigues

2012-07-27

U.V.BAKRE

body2012
Judgment :- U.V. Bakre, J. The above Second Appeal takes exception to the Judgment and Decree dated 30/11/2002 passed by the 1st Additional District Judge, South Goa, Margao (first Appellate Court) in Regular Civil Appeal No. 62 of 1999, which was filed by the defendants of Special Civil Suit No. 117/96/II, against the Judgment and Decree dated 29/04/1999, passed by the 2nd Additional Civil Judge, Senior Division, Margao (trial Court) in the said suit. The defendants of the said Special Suit have filed cross-objection in the present Second Appeal. This common judgment shall dispose of the Second Appeal as well as the cross-objection. 2. The parties shall hereinafter be referred to as per their status in the said Special Civil Suit. 3. The plaintiffs had filed the said suit for recovery of possession and permanent injunction for directing the defendants to remove the compound wall, the room and the store room and whatever encroachments that may be existing in the suit property and to give vacant possession thereof to the plaintiffs and to restrain the defendants, their relatives, etc. from interfering with the suit property. Case of the plaintiffs, in short, was as follows: There is a property known as “Boiridevanaicalem Chicolantoy Tata Santunaicalem Calandra” situated at Mazilvaddo of Benaulim, Salcete-Goa. 3/4th of the said property (northern portion) constitutes a distinct and separate property described in the Land Registration Office of Salcete under No. 31073 of Book B No. 80 (new), and bounded on the East by the public road; on the West by the property of Francisquinha Dias and the heirs of Fr. Joaquim Moniz; on the North by that of the heirs of Joao Vicente Fernandes; and on the South by the remaining 1/4th part of the same property belonging to Xencora Madeva Sinai Quencro and his wife Umabai Sinaini. The said 3/4th northern portion is surveyed under nos. 280/2 and 280/3 of Benaulim Village and the same belongs to the plaintiffs. The remaining 1/4th portion (southern portion) which is a separate property belongs to the defendants. The land bearing survey No. 280/3 is the suit property. The defendants got the suit property surveyed jointly in the name of mother/mother-in-law of the defendants, namely Mrs. Maria Piedade Rebello along with the plaintiff no. 2, Mrs. Marianinha Fernandes. The remaining 1/4th portion (southern portion) which is a separate property belongs to the defendants. The land bearing survey No. 280/3 is the suit property. The defendants got the suit property surveyed jointly in the name of mother/mother-in-law of the defendants, namely Mrs. Maria Piedade Rebello along with the plaintiff no. 2, Mrs. Marianinha Fernandes. Taking advantage of the erroneous survey, and about ten years prior to the filing of the suit, the defendants made various encroachments in the suit property namely construction of compound wall on the northern boundary, a room and also a store room therein. The plaintiffs, being poor, could not react immediately. However since the defendants would not remove the encroachments, the plaintiffs filed the suit in the month of March, 1996. 4. The defendants, by way of their written statement, denied, for want of knowledge, that the plaintiffs were owners of the property described in paragraph 1 of the plaint and that the same bears survey nos. 280/2 and 280/3. They admitted that 1/4th of the property “Boiridevanaicalem Chicolantoy Tata Santunaicalem Calandra” belonged to Xencora Madeva Sinai Quencro and his wife Umabai Sinaini. They stated that they purchased the same along with two parcels annexed to it from the respective owners and the said two parcels together with 1/4th part are adjoining each other and form one property which is possessed by the defendants. The suit property bearing survey no. 280/3 belongs exclusively to the defendants and has been in their possession for more than 50 years which possession has been peaceful, uninterrupted and continuous, without any obstruction from any person, which by itself gives prescriptive title to the defendants. The defendants alleged that the compound wall has been existing from the year 1970 and the room and store room were in existence fore more than 50 years though they were reconstructed in the year 1973. The said room and store room are adjoining to each other and besides these structures, there is a W.C. and two more structures situated in the suit property which are also existing for the last 50 years. In the suit property, there is plantation made by the defendants. The defendants also contended that the suit of the plaintiffs was barred by limitation. 5. In the suit property, there is plantation made by the defendants. The defendants also contended that the suit of the plaintiffs was barred by limitation. 5. The defendants filed counter claim alleging that by a deed dated 21/1/29, they purchased 1/4th of the property known as “Boireadevonaicalem” or “Chicolantoi” or “Santunaicalem” or “Calandra”, described in the land Registration Office under no. 14677, New Series, situated at Benaulim, which is surveyed under no. 280/3 and partly under survey no. 280/5. They prayed for declaration that they are owners in possession of the said property bearing survey no. 280/3 of Benaulim village and for direction to the survey authorities to delete name of plaintiff no. 2 from the survey records in respect of the said property and to record the names of defendants therein. 6. The plaintiffs filed written statement to the counter claim thereby denying the averments made by defendants, therein. 7. On appreciation of the evidence on record, the trial Court held that the plaintiffs had established their ownership in respect of 3/4th of the said property. Trial Court did not accept the claim of ownership, set up by the defendants, in respect of the portion alleged to have been encroached. The trial Court held that 3/4th of the property of the plaintiffs bears survey no. 280/2 and 280/3 and remaining 1/4th, belonging to the defendants, bears survey no. 280/5. Trial Court held that the defendants failed to prove that that they are owners in possession of the portion alleged to have been encroached. He further held that the plantation of trees and construction of various structures in the suit property, is nothing but encroachment in plaintiffs' survey no. 280/3. It has been observed by the trial Court that the defendants have not put up adverse possession as a claim and also have not prayed to be declared as owners by adverse possession. He held that plaintiff's suit for restoration of possession was not barred by limitation. The trial Court decreed the suit of the plaintiffs and dismissed the counter claim of the defendants. 8. In the Regular Civil Appeal No. 62 of 1999, preferred by the defendants, the learned first Appellate Court held that the plaintiffs' suit was barred by law of limitation. The trial Court decreed the suit of the plaintiffs and dismissed the counter claim of the defendants. 8. In the Regular Civil Appeal No. 62 of 1999, preferred by the defendants, the learned first Appellate Court held that the plaintiffs' suit was barred by law of limitation. The first Appellate Court further held that it is not understood as to on what basis the plaintiffs say that their 3/4th portion is surveyed under nos. 280/3 and 280/2 as there is no evidence of any expert to show as to where the boundary of 3/4th portion of plaintiffs ends and from which point the boundary of 1/4th portion of defendants starts. The first Appellate Court found that the plaintiffs have not produced evidence to show that their 3/4th portion corresponds to survey nos. 280/3 and 280/2. The first Appellate Court further found that the plaintiffs did not object to the construction of cement seat carried out by the Government with permission from the defendants, in that property. She found that PW1 has admitted that the defendant no.1 is enjoying the fruits of the trees from the suit property. The first Appellate Court also came to the conclusion that the counter claim is barred by limitation. Consequently, the appeal came to be partly allowed. The judgment and decree of trial Court insofar as it decreed the suit has been set aside and insofar as it related to dismissal of the counter claim, has been confirmed. In other words, the suit as well as the counter claim came to be rejected. Hence, the second appeal by plaintiffs and cross objection by defendants. 9. The Second Appeal has been admitted on the following substantial questions of law:- I) Whether the Suit of the Appellants could be held to be barred by limitation, particularly in view of the fact, that the Respondents claimed a right to the property surveyed under Survey No. 280/3, firstly on the ground that they had title to the same, and alternatively on the ground that they had acquired the same by prescription, neither of which they succeeded in establishing as per the findings recorded by the Trial Court and not recorded by the First Appellate Court? II) Whether the impugned judgment and decree passed by the First Appellate Court is vitiated on account of misreading of the Certificate of Description and Inscription, ignoring the boundaries of the 3/4th part purchased by Appellants and on account of ignoring the admission on the part of the Respondent no.1, flowing from the fact that he claimed that he had purchased a part of Survey No. 280/3 from their predecessors-in-title? III) Whether non-production of sketch as provided under Order VII, Rule 3 of Civil Procedure Code showing the extent of encroachment, was fatal to the Appellants' case in view of the fact that the Appellants were seeking restoration of possession of the entire property surveyed under Survey No. 280/3? IV) Whether the mere filing of an application for deletion of the name of the plaintiffs from the survey records would furnish a cause of action for a Suit for recovery of possession, and whether unless the Suit is filed within 12 years of knowledge of such application, the same is barred by limitation? 10. Mr. S. D. Lotlikar, learned Senior Counsel on behalf of the plaintiffs, at the out set, contended that there is absolutely no question of identification of the suit property involved in the suit. He argued that the suit property is the entire survey no. 280/3. He invited my attention to paragraph 1 of the plaint wherein the plaintiffs' property has been fully described and stated to be surveyed under nos. 280/2 and 280/3 and to paragraph 1 of the Written Statement wherein the defendants have simply not admitted the contents of paragraph 1 of the plaint for want of knowledge. According to learned Senior Counsel, the denial in paragraph 1 of the written statement is no denial at all, in law. Learned Senior Counsel, on behalf of the plaintiffs, argued that there is no dispute that 3/4th of the property named “Boiridevanaicalem Chicolantoy Tata Santunaicalem Calandra” which is the northern portion belongs to the plaintiffs and the remaining 1/4th part of the entire property lying on the northern side belongs to the defendants. According to him, the title of the plaintiffs to survey nos. 280/2 and 280/3 has not been denied by the defendants. He submitted that the defendants claimed title to property bearing survey no. According to him, the title of the plaintiffs to survey nos. 280/2 and 280/3 has not been denied by the defendants. He submitted that the defendants claimed title to property bearing survey no. 280/3 exclusively and prescriptive title to the same on the ground of possession for more than 50 years peacefully, uninterruptedly, continuously and without obstruction from any person and did not claim title by way of adverse possession. Learned Senior Counsel contended that the trial Court had rightly held that the plaintiffs had established their ownership in respect of the suit property by way of documentary evidence. He further contended that the learned first Appellate Court has wrongly held that the suit is barred by law of limitation. He invited my attention to paragraph 8 of the impugned judgment wherein the first Appellate Court has held that the suit is governed by Article 65 of the Limitation Act under which the limitation to file the suit for possession of immovable property or any interest therein, based on title, is of 12 years. He pointed out that the learned first Appellate Court has not considered the fact that the time from which the said period of 12 years begins to run is when the possession of the defendant becomes adverse to the plaintiffs. He contended that since the defendants had not claimed adverse possession and even otherwise had failed to prove the same, counting period of possession from the month and year in which the plaintiff constructed compound wall, room and store room was not proper. He submitted that the suit of the plaintiffs was well within the limitation period. He pointed out from the evidence that the plaintiffs, on 26/02/1996, had issued a legal notice to the defendants demanding removal of the encroachments, which notice is at Exhibit PW1/E. He argued that 1/4th of said property which was sold to the defendants bears survey no. 280/5 and no part of it falls in survey no. 280/3, and this is borne out from the evidence, as held by trial Court. He, therefore, argued that the learned trial Judge had rightly decreed the suit and had dismissed the Counter Claim, which judgment is required to be restored by allowing this Second Appeal. 11. Per Contra, Mr. 280/5 and no part of it falls in survey no. 280/3, and this is borne out from the evidence, as held by trial Court. He, therefore, argued that the learned trial Judge had rightly decreed the suit and had dismissed the Counter Claim, which judgment is required to be restored by allowing this Second Appeal. 11. Per Contra, Mr. Anthony D'Silva, on behalf of the defendants, vehemently argued that the plaintiffs have not proved as to where their 3/4th portion lies and therefore the finding of the learned first Appellate Court holding that 3/4th portion of the plaintiffs has not been proved to be surveyed under No. 280/3 and 280/2, cannot be faulted. The learned counsel for the defendants further pointed out from the evidence that the plaintiffs did not object to the construction of the cement seat done by the Government in the suit property with the permission from the defendants. He further pointed out that there is no dispute that the defendants are enjoying the fruits of the trees from the suit property and are further having their compound wall, room and store room therein. He argued that the defendants are claiming ownership to survey no. 280/3 by virtue of the sale deed dated 21/01/1929 and have proved their title as well as possession. He contended that since the name of Mrs. Marianinha Fernandes (plaintiff no. 2) is appearing in the survey records, without any right to the suit property, her name is required to be deleted from the survey records. He submitted that counter claim is not barred by law of limitation, since the cause of action for the same arose in the year 1996 when the plaintiffs instituted the Special Suit No. 117/96/II. He, therefore, argued that the appeal be dismissed and the cross-objection be allowed. 12. I have gone through the entire material on record. 13. There is no dispute between the parties with regard to survey no. 280/2, which belongs to the plaintiffs and survey no. 280/5, which belongs to the defendants. The dispute is in relation to survey no. 280/3 only, which is the suit property. 14. The plaintiff no. 2 had filed an application dated 16/7/74 for deletion of the name of Maria Piedade Rebelo (mother/mother-in-law of defendants), from the record of survey no. 280/2, which belongs to the plaintiffs and survey no. 280/5, which belongs to the defendants. The dispute is in relation to survey no. 280/3 only, which is the suit property. 14. The plaintiff no. 2 had filed an application dated 16/7/74 for deletion of the name of Maria Piedade Rebelo (mother/mother-in-law of defendants), from the record of survey no. 280/3, upon which an inquiry was conducted by the Awal Karkun and the said application came to be dismissed, by order dated 27/12/1976. The first Appellate court has observed that since the statement of the plaintiff no. 2 in the said case was recorded by Awal Karkun in the year 1976, it can be considered that the possession of suit property by the defendants commenced from 1976 and therefore the period of limitation, for the plaintiffs, to file suit based on title would expire on 27/12/88. The suit having been filed on 30/3/96, has been held to be barred by limitation. The first Appellate Court has relied upon Article 65 of the Limitation Act, 1963. Article 65 provides the period of limitation as 12 years for suit for possession of immovable property or interest therein, based on title and the time from which the period begins to run is when the possession of the defendant became adverse to the plaintiffs. In the present suit, the plaintiffs have prayed for recovery of possession of the immovable property based on title. However, neither in the Written Statement nor in the Counter Claim, the defendants have claimed to be in adverse possession of the suit property. They have not prayed for declaration that they are owners by adverse possession. Even otherwise, the trial Court has observed that in order to put up the claim of adverse possession, firstly, the defendants have to admit that the plaintiffs are the owners of survey no. 280/3 and then they have to show as to since when they are in adverse possession and have to specifically aver the date from which they have informed the plaintiffs that they are in adverse possession. The trial Court has held that the defendants have not done this. It is held by the trial Court that the defendants have failed to prove that they are in adverse possession of survey no. 280/3. The above findings of trial Court are not reversed by the learned first Appellate Court. The trial Court has held that the defendants have not done this. It is held by the trial Court that the defendants have failed to prove that they are in adverse possession of survey no. 280/3. The above findings of trial Court are not reversed by the learned first Appellate Court. The first Appellate Court has observed that the suit is governed by Article 65 of the Limitation Act under which limitation to file the suit for possession of immovable property or interest therein, based on title, is 12 years. However, the first Appellate Court has ignored the portion of Article 65 which provides that the time from which the said period begins to run is when the possession of the defendant became adverse to the plaintiffs. Proof of mere possession from 1976 was not enough. Therefore, the question of limitation of 12 years, for filing the suit, does not arise. The suit filed by the plaintiffs was not barred by limitation. In view of the above, the substantial questions no. (I) and (IV) get answered in favour of the plaintiffs. 15. The Second substantial question of law, as framed, takes for granted that the claim of the defendants is that they had purchased part of Survey no. 280/3 from predecessors-in-title of the plaintiffs. However, in the counter claim, the defendants have specifically pleaded that they have purchased 1/4th of the property by deed dated 21/01/1929 which is surveyed under No. 280/3 and partly under survey no. 280/5. They have specifically pleaded in paragraph 3 of the Written Statement that the property surveyed under no. 280/3 exclusively belongs to them. Therefore the claim of the defendants is that by said deed dated 21/01/1929 they had purchased entire survey holding no. 280/3 and part of survey holding no.280/5. Neither in the pleadings of defendants nor in the evidence of DW1, there is an admission that the defendants had purchased only a part of survey no. 280/3 from their predecessors-in-title. There is no evidence on record to prove that the survey holding no. 280/3 (suit property) along with survey holding no. 280/2 corresponds to 3/4th portion of the property described in land registration office of Salcete, under no. 31073, claimed by the plaintiffs. 16. 280/3 from their predecessors-in-title. There is no evidence on record to prove that the survey holding no. 280/3 (suit property) along with survey holding no. 280/2 corresponds to 3/4th portion of the property described in land registration office of Salcete, under no. 31073, claimed by the plaintiffs. 16. In paragraph 1 of the plaint, the plaintiffs pleaded that they are owners of the property “Boiridevanaicalem Chicolantoy Tata Santunaicalem Calandra” bearing Land Registration No. 31073, which is 3/4th lying on the north. The Plaintiffs further alleged that above 3/4th of the property bears survey no. 280/2 and 280/3. However, in paragraph 1 of the written statement, the defendants have pleaded that the contents of the paragraph 1 of the plaint are not admitted for want of knowledge and the plaintiffs are put to strict proof thereof. It is true that the defendants are expected to expressly deny the fact which lies within their knowledge. However, when the defendants have no knowledge of the fact, the Court cannot decide against the defendants on a technical ground of want of specific denial. In such a case, it is the duty of the Court to properly marshal all facts before coming to the final conclusion. Rules 3, 4 and 5 of Order VIII of C.P.C. deal with the manner in which allegations of the fact in the plaint should be dealt with and legal consequences follow from non-compliance, thereof. The written statement must deal specifically with each allegation of fact in the plaint and when the defendant denies such fact, he must not do so evasively, but specifically and unambiguously. If his denial of the fact is not specific but evasive, the said fact can be taken to be admitted and in such an event the admission, being proved, no other proof is necessary. In paragraph 1 of the written statement, the defendants have specifically denied the contents of paragraph 1 of the plaint and they have put the plaintiffs to strict proof thereof. In paragraph 3 of the plaint, the defendants have stated that the property bearing survey no. 280/3 belongs exclusively to them. There is therefore denial of the claim of ownership of the plaintiffs with regard to the suit property bearing survey no. 280/3 as well as a specific plea pertaining to the same. In paragraph 3 of the plaint, the defendants have stated that the property bearing survey no. 280/3 belongs exclusively to them. There is therefore denial of the claim of ownership of the plaintiffs with regard to the suit property bearing survey no. 280/3 as well as a specific plea pertaining to the same. It is therefore wrong to contend that the defendants have not denied the ownership of the plaintiff in respect of survey no. 280/3. 17. The substantial question no. II is answered against the plaintiffs. 18. Since case of the plaintiffs is specifically that all the encroachments fall within the suit property bearing survey no. 280/3 and that the said suit property belongs to them, the question of filling of sketch under Order VII Rule 3 of the C.P.C., showing the extent of encroachments, does not arise and non-production of such sketch would not be fatal. Substantial question no. III therefore gets answered in favour of the plaintiff. 19. There is no dispute that the plaintiffs are owners in possession of 3/4th of the property namely “Boiridevanaicalem Chicolantoy Tata Santunaicalem Calandra” bearing Land Registration no. 31073 of Book B no. 80 (new), of Salcete. There is also no dispute that the remaining 1/4th of the said property belongs to the defendants. However, the suit property bears survey no. 280/3. It was incumbent upon the plaintiffs to prove that the 3/4th of the property namely “Boiridevanaicalem Chicolantoy Tata Santunaicalem Calandra” bearing Land Registration No. 31073 corresponds to survey holdings no. 280/2 and 280/3, taken together. One of the methods for the plaintiffs to do that was by engaging an expert and by drawing a plan of the property bearing Land Registration no. 31073 on the basis of the description given in the Land Registration Certificate or otherwise from any other material available and then superimposing the said plan on the plan of survey nos. 280/2 and 280/3 and proving that both correspond to each other. This exercise has not been carried out by the plaintiffs. The trial Court has not considered this aspect of identification and therefore has gone wrong in holding that survey no. 280/3 forms part of the property of the plaintiffs. The first Appellate Court, in my considered view, has rightly observed that it is not understood as to on what basis, PW1 says that her 3/4th portion is surveyed under survey nos. 280/3 forms part of the property of the plaintiffs. The first Appellate Court, in my considered view, has rightly observed that it is not understood as to on what basis, PW1 says that her 3/4th portion is surveyed under survey nos. 280/3 and 280/2 as there is no evidence of any expert thereby clarifying as where the boundary of 3/4th portion of plaintiffs ends and from which point the boundary of 1/4th of the defendants starts. The first Appellate Court has rightly held that the plaintiffs have failed to show that their 3/4th portion corresponds to survey nos. 280/3 and 280/2 (which portion is not in dispute). 20. Insofar as the cross objection is concerned, it pertains to the counter claim of the defendants. In this counter claim, it was the case of the defendants that by virtue of the sale deed dated 21/1/29, they are owners of survey no. 280/3 and part of survey no. 280/5. There is no dispute in respect of the survey no. 280/5. But, the defendants have prayed for declaration that they are owners of survey no. 280/3. There is no evidence on record to prove that the property described in the sale deed dated 21/1/29, which is at Exhibit DW1/A corresponds to survey no. 280/3 and part of survey no. 280/5. The trial Court has held that the defendants have failed to prove their title to survey no. 280/3 and they have also failed to prove that they are in adverse possession thereof. The learned first Appellate Court has not reversed the finding of the trial Court that the defendants have failed to prove their title to survey no. 280/3. Hence, even if the counter claim is not barred by the law of limitation, the defendants also cannot succeed. 21. In view of the discussion supra, the learned first Appellate has rightly dismissed the suit and the counter claim. There is no merit in the Second Appeal as well as Cross Objection. No interference is called for with the impugned judgment and decree. 22. In the result, the Second Appeal and the Cross-Objection are both dismissed, however, with no order as to costs.