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2012 DIGILAW 655 (BOM)

Alvaro Faria v. Shri Raghunath Keshav Kambli

2012-03-26

F.M.REIS

body2012
Judgment Heard Shri S. Karpe, learned Counsel appearing for the appellant. None for the respondents though served. 2. The above appeal challenges the judgment passed by the Lower Appellate Court dated 01.12.2003 whereby the appeal preferred by the respondents was partly allowed and the judgment and decree dated 30.04.2003 passed by the learned Trial Judge was set aside and the counter claim filed by the respondents came to be dismissed. 3. The above Second Appeal was admitted by this Court by order dated 22.03.2004 on the following substantial questions of law: “(a) As to whether the learned 1st Appellate Court was right in denying relief to the plaintiff, in so far as the suit plot is concerned, after upholding the finding of the learned Trial Judge, that the defendants could not claim title by way of prescription or adverse possession, as it would mean express or implied denial of title of the true owner. (b) As to whether the learned Judge was right in holding that the appellant had not proved the title to the suit property and that the Matriz document could not be looked into and on account thereof deny relief to the plaintiff, when admittedly the sale deed of the defendants disclose, that what the defendants had purchased from his sellers, was only part of the survey no.1/12 and part of 1/16 and the schedule described the property by Matriz No. 1217 and 1223 respectively and when admittedly the defendants claim title to the suit property by prescription, and/or adverse possession on assertion of hostile title to the plaintiff in respect thereof ?” 4. Shri S. Karpe, learned Counsel appearing for the appellant has assailed the impugned judgment and pointed out that the learned Lower Appellate Court has erroneously come to the conclusion that the appellant has failed to identify the suit property. The learned Counsel has taken me through the sale deed executed in favour of the respondents and pointed out that the property which has been purchased by the respondents was surveyed under no.1/16(part) of village Sangolda. The learned Counsel further pointed out that according to the appellant, the suit plot belonging to the appellant was originally surveyed in the cadastral survey No.727 admeasuring 210 square metres. The learned Counsel further pointed out that according to the appellant, the suit plot belonging to the appellant was originally surveyed in the cadastral survey No.727 admeasuring 210 square metres. The learned Counsel further pointed out that the suit plot admeasuring 210 square metres corresponds to the property surveyed under no.1/16(part) admeasuring 210 square metres towards the eastern side of the said survey number. The learned Counsel has further taken me through the evidence adduced by the appellant and pointed out that the appellant has examined an expert being PW2 who has clearly identified the portion of the suit plot claimed by the appellant and the portion which according to the appellant belongs to the respondents. The learned Counsel further pointed out that the claim of the respondent no.1 was that he has acquired right to the suit plot on the basis of prescriptive/adverse possession which itself discloses that the respondents had admitted that they have no right to the suit plot. The learned Counsel further pointed out that the trial Judge whilst disposing of the suit filed by the appellant has categorically given a finding to the effect that the suit plot surveyed under no.1/16(part) corresponds to the property which was formerly surveyed under cadastral survey no.727 admeasuring an area of 210 square metres and the learned Lower Appellate Court has erroneously found that there was no depiction done by the expert to that extent. The learned Counsel further pointed out that the findings of the learned Trial Judge to that effect is summarily set aside by the Lower Appellate Court on the ground of lack of pleadings by the appellant in the suit when such pleadings were manifested in paras 2 and 3 of the plaint. The learned Counsel further pointed out that the Lower Appellate Court has passed the impugned judgment by misreading the evidence on record and the plaint and as such came to an erroneous conclusion that the appellant has failed to identify the suit property. 5. With regard to the second substantial question of law, the learned Counsel has pointed out that once the respondents have failed to establish their claim of adverse possession/prescriptive in the suit property and considering that the appellant has established his title to the suit plot, he is entitled for the restoration of the possession of the suit plot. 5. With regard to the second substantial question of law, the learned Counsel has pointed out that once the respondents have failed to establish their claim of adverse possession/prescriptive in the suit property and considering that the appellant has established his title to the suit plot, he is entitled for the restoration of the possession of the suit plot. The learned Counsel as such submits that the learned Judge has erroneously passed the impugned judgment and allowed the appeal filed by the respondents. 6. Having heard the learned Counsel and on perusal of the records, I will deal with the first substantial question of law framed by this Court. The Lower Appellate Court at para 17 of the impugned judgment has held that the learned Trial Judge has undergone the exercise of comparing the boundaries of the old cadastral survey of the property surveyed under no.727 as stated in the cadastral plan with Matriz number mentioned in the certificate at Exhibit PW1/J vis-a-vis new survey records to come to the conclusion that the old survey no.727 corresponds to the Matriz no.1216 and new survey no.1/16 (part). The learned Judge has further come to the conclusion that the surveyor examined by the appellant being PW2 did not speak about the identity of the suit plot on the basis of such comparison. The learned Judge has also found that there were no pleadings by the appellant to the effect that the property surveyed under old cadastral survey no.727 corresponds to the property presently surveyed under new survey records 1/16(part). On perusal of the plaint filed by the appellant, I find that the appellant at para 2 of the plaint has categorically stated that the property which is surveyed under old cadastral survey no.727 admeasuring an area of 210 square metres situated at Sangolda is the suit plot. The appellant has further stated at para 4 thereof that he has found that the suit plot was presently surveyed as a part of the property surveyed under no.1/16 being shown in red colour in the survey plan. At para 11 thereof, the appellant has also pleaded that he has found that the suit plot has been wrongly included as a part of the property surveyed under no.1/16. Hence, the findings of the learned Judge that there were no pleadings to that effect cannot be accepted. At para 11 thereof, the appellant has also pleaded that he has found that the suit plot has been wrongly included as a part of the property surveyed under no.1/16. Hence, the findings of the learned Judge that there were no pleadings to that effect cannot be accepted. It is also pertinent to note that the surveyor who has been examined as PW2 has stated in his deposition that he has done exercise of locating the property as per old cadastral survey no.727 and found that it corresponds to new survey no.1/16(part). He has further stated that he has shown the said suit plot in the new survey records as depicted in the plan prepared by him at Exhibit PW1/F. Besides that the appellant has also produced a document at Exhibit PW1/O which is a certificate dated 14.1.2002 issued by the Land Survey Department stating that the old cadastral survey nos.727 and 726(part) correspond to the new survey no.1/16 of village Sangolda. It is not in dispute that the property surveyed under cadastral survey records no.726 belongs to the respondents. It is also not in dispute that the property surveyed in the cadastral survey no.727 stands in the name of the parents of the appellant. In this background of the facts of the case, the learned Judge was not justified to come to the conclusion that the appellant has failed to adduce evidence to co-relate the property old cadastral survey no.727 with the suit plot surveyed under no.1/16(part). It is also pertinent to note that in the sale deed produced by the respondents on the basis of which they claim the suit plot the identification made in the schedule of the said sale deed shows that the property purchased by the respondents is surveyed under no.1/16(part). As such, it cannot be said that the whole property surveyed under No. 1/16 was the portion of the property purchased by the respondents. Besides that the boundaries in the said sale deed do not corresponds with the boundaries shown in the Matriz records pertaining to the property claimed to be belonging to the respondents. As such, it cannot be said that the whole property surveyed under No. 1/16 was the portion of the property purchased by the respondents. Besides that the boundaries in the said sale deed do not corresponds with the boundaries shown in the Matriz records pertaining to the property claimed to be belonging to the respondents. The Lower Appellate Court has set aside the judgment of the learned Trial Judge on the ground that the property which is surveyed under old cadastral survey no.727 has not been established to be part of the property 1/16(part) by misreading the evidence on record and without considering the documents adduced by the appellant and the respondents. The very fact that the respondent claim right by prescription would imply that the suit portion does not belong to them. As such, considering that the learned Judge has not considered the matter in an appropriate perspective by adverting to all the documents adduced by the parties, I find it appropriate in the interest of justice that the impugned judgment passed by the Lower Appellate Court deserves to be quashed and set aside and the matter be remanded to the Lower Appellate Court to decide the appeal preferred by the respondents a fresh after hearing the parties in accordance with law. 7. With regard to the second substantial question of law, it is well settled that the possession follows the title. In the present case, the findings in respect of the claim put forward by the respondents has been concurrently rejected by the Courts below. The claim of the respondents of prescription and/or adverse possession does not survive. Hence, the findings against the respondents with regard to the claim of adverse possession/prescription is confirmed. It is also to be noted that the respondents have also not challenged the refusal of the counter claim filed by them against the appellant. The dismissal of the counter claim in such circumstances also stands confirmed. 8. In view of the above, I pass the following : (i) The appeal is partly allowed. (ii) Regular Civil Appeal No. 90/2003 is restored to the file of the learned District Judge, North Goa, Panaji. (iii) The learned District Judge is directed to decide the appeal preferred by the respondents a fresh in the light of the observations made herein above in accordance with law. All contentions of the parties on merits are left open. (ii) Regular Civil Appeal No. 90/2003 is restored to the file of the learned District Judge, North Goa, Panaji. (iii) The learned District Judge is directed to decide the appeal preferred by the respondents a fresh in the light of the observations made herein above in accordance with law. All contentions of the parties on merits are left open. (iv) The appeal stands disposed of accordingly with no order as to costs. (v) Parties are directed to appear before the learned Appellate Court on 04.06.2012 at 10.00 a.m.