Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 634 (BOM)

Efigenio Dias v. Joaquim Manuel Aries Gomes

2014-03-07

Z.A.HAQ

body2014
JUDGMENT 1. This First Appeal arises out of the Judgment and Decree passed by the learned Trial Judge in Civil Suit no. 267/2004 on 27.12.2007, by which Civil Suit filed by the Appellants (original Plaintiffs) is dismissed. By the said Judgment, the learned Trial Judge has dismissed the counter claim filed by the defendants. The Original Plaintiffs have filed this Appeal. There is no challenge to the dismissal of the counter claim. 2. The basic facts which are necessary for the consideration of the issues are as follows: The Plaintiff claims that the six separate properties having Matriz no. 929, 930, 931, 932, 933 and 934, admeasuring 67200 square metres of survey no. 114/1 of Village Cavelossim, were joint piece of property. The Plaintiffs claim that they are the exclusive owners of Matriz no. 933. The Plaintiffs have given the details as to how they acquired the title in the suit property and have submitted that they are in peaceful and continuous possession of the suit property. On the pleadings as made in the plaint, the Plaintiffs have prayed for the Decree for declaration that they are the owners and are in possession of the entire suit property out of which 2/5th is acquired by them by virtue of the Deed of Partition and 3/5th of it by prescriptive title. The Plaintiffs have sought declaration that the original defendants nos. 1 and 25 have no right in the suit property belonging to the Plaintiffs and that the Defendant nos. 20, 21, 23, 25, 26 and 27 have no right in the suit property belonging to the Plaintiffs and the other owners and co-owners. Initially, the Plaintiffs also prayed for a Decree of declaration that the Decree dated 20.04.1990 be declared null and void and the Sale Deed dated 29.05.1989 registered on 21.01.1994 sold to defendant no. 25 be declared as null and void. However, Shri Mascarenhas, learned Advocate appearing for the Appellants, has submitted that as far as the prayer clause 2 and 2(a) in the plaint are concerned regarding declaration of Sale Deed dated 20.04.1990 and the Sale Deed dated 20.01.1994 registered in 1994, the matter is amicably settled along with the concerned defendants and, therefore, that relief is not being pursued. 3. The learned Trial Judge framed the following issues and proceeded to try the Civil Suit: 1. 3. The learned Trial Judge framed the following issues and proceeded to try the Civil Suit: 1. Whether the plaintiff proves that he is in continuous, peaceful possession of the 3/5th portion of the suit property in survey no. 114/1 of village Cavelossim for the last more than 60 years without any interference of whatsoever nature from any person/persons and is therefore owner by prescription of the same? 2. Whether the plaintiff proves that he is a owner in possession of the entire suit property 2/5th by virtue of Deed of Partition and 3/5th by prescriptive title? 3. Whether the plaintiff proves that cadastral plan prepared by the survey department in the year 1973 in respect of the suit property is not correct ? 4. Whether the plaintiff proves that defendant no. 25 suddenly set up fencing poles to mark the boundary line of the property purchased and in doing so, encroached into the land on the southern boundary, belonging to the plaintiff and in the process took in a long line of coconut tree belonging to the plaintiffs and other co-owners? 5. Whether the defendant no. 2 and 25 prove that the suit is bad for mis-joinder of parties? 6. Whether the defendant no. 2 and 25 prove that suit is bad for misjoinder of causes of action? 7. Whether the defendants no. 2 and 25 prove that suit is misconceived in law and on facts? 8. Whether the defendant no. 2 proves that property purchases by East India Hotels Ltd., and by him (deft. No. 2) has been in uninterrupted, peaceful and continuous possession of defendant no. 1 and his predecessors for over 47 years as on the date of the sale deed and the same has been purchased after verifying and measuring the actual area in their possession? 9. Whether the defendant no. 17 proves that he is in exclusive possessory ownership of the land “forming part of survey no. 114/1 of Village Cavelossim, taluka Salcete? 4. After recording the evidence, the learned Trial Judge concluded that the Plaintiffs have failed to prove that they are in continuous and peaceful possession of the suit property. 5. Heard Shri C. Mascarenhas, learned Advocate appearing for the Appellants, Shri Pravin Faldessai, learned Addl. Government Advocate appearing for the Respondent nos. 3 and 4, Shri P. Lotlikar, learned Advocate appearing for the Respondent nos. 5. Heard Shri C. Mascarenhas, learned Advocate appearing for the Appellants, Shri Pravin Faldessai, learned Addl. Government Advocate appearing for the Respondent nos. 3 and 4, Shri P. Lotlikar, learned Advocate appearing for the Respondent nos. 5A, 7A to 7D, 8 and 18 and Shri Shailesh Redkar, learned Advocate appearing for the Respondent nos. 11 to 15. 6. After hearing the learned Advocates for the respective parties, the following points arise for determination: 1) Whether the learned Trial Judge has rightly dealt with the issue of entitlement of the Appellants in respect of Matriz No. 933 admeasuring 19345 square metres? 2) Whether the impugned Judgment suffers from non-application of mind to the basic facts of the case? 7. The learned Advocate appearing for the Appellants has submitted that the learned Trial Judge has misdirected himself while dealing with the issues and has dealt with the matter as if the entire survey no. 114/01 admeasuring 67200 square metres comprising of Matriz no. 929 to 934, is the suit property. According to the learned Advocate, the entire property described as survey no. 114/1 comprising of Matriz no. 929 to 934, is admeasuring 67200 square metres but, the claim of the Appellants was in respect of Matriz no. 933 only which admeasures 19345 square metres. The description of the property in the plaint in paragraph 4 is very clear about this factual position. The Plaintiff has stated that Matriz no. 933 is referred to as the suit property. According to the learned Advocate appearing for the Appellants, because of the confusion regarding the factual position, the learned Trial Judge has not properly appreciated the controversy and it has adversely affected the adjudication of the issues. 8. The contesting Respondent no. 17 is not represented by anybody. The learned Advocate Shri Lotlikar, for the Respondent nos. 5A, 7A to 7D, 8 and 18, states that the written statements were filed opposing the claim of the Plaintiffs by the defendant no. 8 and the defendant nos. 1, 3, 4, 7, 18, 19, 20, 23, 24, 26 and 27 were proceeded against exparte. Though the written statement was filed on behalf of Defendant no. 8, he has not entered the witness box and has not cross examined the Plaintiffs. 9. Shri Shailesh Redkar, learned Advocate for the original Defendant nos. 8 and the defendant nos. 1, 3, 4, 7, 18, 19, 20, 23, 24, 26 and 27 were proceeded against exparte. Though the written statement was filed on behalf of Defendant no. 8, he has not entered the witness box and has not cross examined the Plaintiffs. 9. Shri Shailesh Redkar, learned Advocate for the original Defendant nos. 11 to 15 has submitted that they had filed the written statements opposing the claim of the Plaintiffs and had also file counter claim. However, the counter claim was not pursued and these defendants have neither led any evidence nor has cross examined the Plaintiffs. 10. Shri Gomes, learned Advocate for the Respondent no. 22, submits that this defendant has neither filed the written statement nor led evidence nor cross examined the Plaintiffs. 11. Shri Faldessai, learned Addl. Government Advocate for the Respondent nos. 3 and 4, submits that they are formal parties and they had neither filed written statement nor cross examined the Plaintiffs. 12. The learned Advocate for the Appellants has submitted that the Respondent no. 17, who is the contesting party, had also filed counter claim which is dismissed and there is no further challenge to it. There is no appearance on behalf of the Respondent nos. 17 before this Court. 13. After considering the facts on record and the submissions made by the learned Advocate for the Appellants, I am in agreement with the submissions made on behalf of the Appellants that the learned Trial Judge has misdirected himself by not considering the relevant facts in the right prospective. The learned Judge has dealt with the matter as if the Appellants-Plaintiffs have made the claim for the entire property admeasuring 67200 square metres. Though in the concluding part of para 12 the learned Trial Judge has recorded that the Plaintiffs' claim is only in respect of the area covered by matriz no. 933, in the subsequent part he has concluded that the Plaintiffs have failed to establish that they have ousted the co-owners from enjoying their share in the property. In fact, the claim of the Plaintiffs is that they are the exclusive owners of Matriz no. 933 admeasuring 19345 square metres and they are in exclusive possession of this suit property. The plaintiffs never sought any declaration about the properties owned by the other defendants in the suit. 14. In fact, the claim of the Plaintiffs is that they are the exclusive owners of Matriz no. 933 admeasuring 19345 square metres and they are in exclusive possession of this suit property. The plaintiffs never sought any declaration about the properties owned by the other defendants in the suit. 14. The learned Trial Judge while deciding the issue no. 5, has held that the defendants have not mentioned as to who are the other co-owners in respect of the suit property and has decided the issue in favour of the Plaintiffs. This itself shows the confusion in the mind of the learned Trial Judge while deciding the Civil Suit. 15. The Defendants raised plea of non-joinder of necessary parties. This plea is raised in the context that if the claim of the plaintiffs is in respect of the entire property under survey no. 114/01 comprising of Matriz no. 929-934, then all the co-owners are necessary parties. 16. In my view, the illegality crept in the impugned Judgment right from the inception and it is clear from the manner in which the matter is dealt with by the learned Trial Judge under the misconception that the property under survey no. 114/1 comprising of Matriz no. 929 to 934, is the subject matter of the Civil Suit. This basic infirmity in the impugned Judgment vitiates the Judgment and makes it unsustainable in law. Needless to say, that as the consideration of the basic facts has been in a wrong direction, consequently, the findings given by the learned Trial Judge are also unsustainable. In the result, I answer the points for determination accordingly and pass the following: ORDER (i) The Appeal is allowed. (ii) The Judgment and Decree passed by the learned Adhoc District Judge-I, South Goa, at Margao, in Civil Suit no. 267 of 2004 dated 27.12.2007, is set aside. (iii) The matter is remitted to the Trial Court for decision afresh on all the points. (iv) In the circumstances, the parties to bear their own costs. (v) The Plaintiffs to appear before the Trial Court on 23.04.2014 and take further steps for service of notice on all the defendants.