JUDGMENT 1. Heard Mr. Bhobe, learned Counsel appearing on behalf of the appellants. 2. This Second Appeal has been preferred against the judgment, order and decree dated 16/06/2004 passed by the learned Additional District Judge, South Goa at Margao (First Appellate Court) in Regular Civil Appeal No. 173/2000. The said Regular Civil Appeal was, in turn, filed against the judgment, order and decree dated 31/08/2000 passed by the learned Civil Judge, Junior Division, Margao ('trial Court') in Regular Civil Suit No. 112/1982/F. The said suit as well as the said First Appeal have been dismissed by the concerned Judges. 3. The present Second Appeal was admitted on following substantial question of law: “Whether in view of Article 2015 of the Portuguese Civil Code, respondents no. 5 and 6 can be said to have legally purchased a specific plot of land admeasuring 338 square metres from the suit property which was indivisible and belonging to the same inheritance as long as the partition has not been effected?” 4. The appellants were the plaintiffs and the respondents were the defendants in the said Civil Suit. The parties shall, hereinafter, be referred to as per their status in the said suit. 5. The plaintiff had filed the said suit for a declaration that the plaintiff's property bearing survey no. 8/32 continues to exist as one and undivided property notwithstanding the fake claim put up by the defendants no. 5 and 6 in respect of the area admeasuring 338 square metres, from the suit property. A permanent injunction to restrain the defendants, their servants, representatives, labourers or any one claiming through them from in any way interfering with or doing any construction in the suit property and a mandatory injunction directing the defendants to fill up the manhole so as to level the ground of the suit property before onset of monsoons, were also sought. 6. During the pendency of the suit the original plaintiff died and her legal representatives came on record. The case of the original plaintiff was as follows:- The plaintiff and defendants no. 1 to 4 are the owners in possession of the suit property namely “Dongorim” situated at Dongorim, Navelim, Salcete, Goa. The said property bears Survey No. 8/32 of village Navelim. It admeasures 1900 square metres. The Survey record stands in the name of late Joao B. Gomes, who was the father of the plaintiff. 1 to 4 are the owners in possession of the suit property namely “Dongorim” situated at Dongorim, Navelim, Salcete, Goa. The said property bears Survey No. 8/32 of village Navelim. It admeasures 1900 square metres. The Survey record stands in the name of late Joao B. Gomes, who was the father of the plaintiff. The plaintiff is the only daughter of said Joao Gomes out of the first marriage and is the legal heir to the inheritance of late Joao B. Gomes. The suit property all along has been in lawful, peaceful and public possession of the plaintiff and the other co-owners. Defendants no. 5 and 6 advanced some money to defendants no. 2 and 3 with a view to purchase the suit property without prior approval and consent of the other co-owners including the plaintiff and in pursuance of some shaddy agreement, defendants no. 5 and 6 illegally trespassed the suit property. The said sale of the plot admeasuring 338 square metres under the Sale Deed 23/04/1981 in favour of defendant no.5 by Domnic Valeriano D'Silva is ab-initio, illegal and void and, therefore, defendants no. 5 and 6 are not entitled to claim any right, title or interest in respect of any part of the said Survey No. 8/32. The suit property being common property, cannot be sold or alienated or disposed of by some co-owners only by causing prejudice to the other co-owners, including the present plaintiff. Hence, the suit. 7. Defendants no. 1 to 4 did not contest the said suit. 8. By way of written statement, the defendants no. 5 and 6 alleged as follows:- The suit is barred by law of limitation. It is false that the original plaintiff is the owner in possession of the suit property. They purchased part of the property of the plaintiff by doing all formalities including publication of public notice, agreement for sale, final sale deed after fully satisfying that no other person has any right, to the plot purchased by them. They denied that the sale deed is illegal and ab-initio void. 9. The learned trial Court framed the following issues which arose in view of the rival contentions of the parties:- 1. Whether the plaintiff proves that the plaintiff is the owner in possession jointly with the defendants no. 1 to 4 of the suit property known as “Dongorim” situated at Dongorim, Navelim, Salcete, Goa? 2. 9. The learned trial Court framed the following issues which arose in view of the rival contentions of the parties:- 1. Whether the plaintiff proves that the plaintiff is the owner in possession jointly with the defendants no. 1 to 4 of the suit property known as “Dongorim” situated at Dongorim, Navelim, Salcete, Goa? 2. Whether the plaintiff proves that the plaintiff has inherited the suit property as the sole legal heir of late Joao B. Gomes? 3. Whether the plaintiff proves that the defendants no. 5 and 6 illegally tresspassed in the suit property and have started doing construction without any right? 4. Whether the defendants no. 5 and 6 prove that the suit for injunction is not maintainable without a prayer for declaration? 5. Whether the defendants no. 5 and 6 prove that they have purchased the property of the plaintiff after complying with all the formalities? 6. What relief? What order? 7. Whether the plaintiff proves that the Sale Deed dated 24.3.81 executed by Shri Domnic Faleiro D'Silva and transferring 338 square metres in survey no. 8/23 is null and void ab initio? 8. Whether the plaintiff proves that the property bearing survey no. 8/32 continues as undivided entity? 9. Whether the plaintiff proves that Domnic Valerian D'Silva could not have sold out any part of the property bearing survey no. 8/32 to a stranger without ascertaining the desire of other co-owners? 10. The original plaintiff examined her constituted Attorney namely Martha Furtado as PW1; Shri Francisco Barretto as PW2. Defendants no.5 and 6 examined defendant no.5 as DW1. 11. Upon consideration of the entire evidence on record, the trial Court found that the case of the plaintiffs as stated by PW1 was not corroborated by PW2. The trial Court found that the evidence led by PW1 and PW2 did not establish that the plaintiffs are the co-owners of the said property along with defendants no.1 to 4, since no documentary evidence was produced to show that the suit property was originally belonging to Joao Gomes. The trial Court held that the documents produced by the defendants no. 5 and 6 suggest that they had taken sufficient steps or precautions at the time of purchasing the said property admeasuring 338 square metres. All the issues framed by it were answered by the trial Court in the negative. In the result, the suit came to be dismissed. 12. 5 and 6 suggest that they had taken sufficient steps or precautions at the time of purchasing the said property admeasuring 338 square metres. All the issues framed by it were answered by the trial Court in the negative. In the result, the suit came to be dismissed. 12. Aggrieved by the said judgment of the trial Court, the plaintiffs filed the said Regular Civil Appeal No.173/2000. The learned First Appellate Court formulated the following point for determination:- 1. Whether the plaintiff proves that the suit property was originally owned and possessed by late Joao B. Gomes? 2. Whether the plaintiff have established any right or interest in the suit property? 13. The First Appellate Court found that the plaintiffs did not produce any documentary evidence to prove that the suit property belonged to late father of the original plaintiff, namely Joao B. Gomes. The learned Court held that the survey entries do not confer title. The First Appellate Court observed that though defendants no. 1 to 4 failed to file any written statement or examine any witness, however, they cross-examined the plaintiff and her witnesses. It held that it was incumbent upon the plaintiff to prove that late Joao B. Gomes was the owner of the suit property through whom the plaintiffs as well as defendants no. 1 to 4 inherited the same. The First Appellate Court found that defendants no. 5 and 6 have clearly disputed the title of the plaintiffs and, therefore, the plaintiffs were bound to prove their title as the co-owners along with defendants no.1 to 4. Both the points for determination were answered in the negative. In the result, the appeal also came to be dismissed holding that the plaintiffs failed to prove that they have right to the suit property. 14. This Second Appeal has been admitted for following substantive question of law:- “Whether in view of Article 2015 of the Portuguese Civil Code, the respondents no. 5 and 6 can be said to have legally purchased a specific plot of land admeasuring 338 square metres from the suit property which was indivisible and belonging to the same inheritance as long as the partition has not been effected? 15. Notice after admission of the appeal was issued to all the respondents and they have been duly served with the said notice. In spite of the same, even respondents no. 15. Notice after admission of the appeal was issued to all the respondents and they have been duly served with the said notice. In spite of the same, even respondents no. 5 and 6 who were the contesting defendants before the trial Court, chose to remain absent. 16. Mr. Bhobe, learned Counsel appearing on behalf of the plaintiffs submitted that the defendants no. 1 to 4 did not file any written statement denying the case of the plaintiffs as pleaded in the plaint and thus as between the plaintiffs and defendants no. 1 to 4, there was no dispute that they are co-owners of the suit property. Counsel invited my attention to the written statement filed by defendants no. 5 and 6 and more particularly, to paragraph 10 thereof, wherein they have specifically admitted that they purchased a part of the property of the plaintiff by doing all the formalities, including publication of public notice, agreement for sale, final sale deed, etc. He, therefore, submitted that the ownership of the original plaintiff was admitted and in such circumstances, the lower Courts erred in holding that the plaintiffs could not prove their title. He read out Article 2015 of Portuguese Law of Succession as is applicable to the State of Goa and submitted that the right of the plaintiffs and defendants no. 1 to 4 was indivisible both in respect of possession as well as ownership, since no partition was effected. He, therefore, submitted that the sale deed executed by defendants no. 1 to 4 in favour of defendants no. 5 and 6 in respect of a specific plot admeasuring 338 square metres from the suit property, without participation of the plaintiffs, is null and void. He further submitted that since defendants no. 5 and 6 knew that the property also belonged to the plaintiffs, they could not be termed as bona fide purchasers, since the original plaintiff was not a party not to the said sale in their favour. He, therefore, urged that the substantial question of law be answered in the affirmative and the impugned judgment and order be quashed and set aside and the suit be decreed as prayed for. 17. I have carefully and minutely gone through the entire original record and proceedings of Regular Civil Suit No. 112/1982, since the defendants no. 5 and 6 are absent. 17. I have carefully and minutely gone through the entire original record and proceedings of Regular Civil Suit No. 112/1982, since the defendants no. 5 and 6 are absent. I have considered the arguments advanced by the learned Counsel appearing on behalf of the plaintiffs. 18. Firstly, the defendants no. 1 to 4 did not file written statement denying the averments made by the original plaintiff in the plaint. Secondly, the said defendants no 1 to 4 or any of them did not step into the witness box. 19. Besides the above, as has been rightly contended by the learned Counsel appearing on behalf of the plaintiffs, defendants no. 5 and 6 in paragraph 10 of the written statement have clearly and unambiguously admitted that they have purchased part of the property of the plaintiff by doing all formalities. The effect of failure on the part of the defendants no. 1 to 4 to file written statement read with the averments made by the defendants no. 5 and 6 in paragraph 10 of their written statement had clearly established that the plaintiffs were the co-owners of the suit property along with the defendants no. 1 to 4. In the circumstances above, the title of the original plaintiff to the suit property was clearly admitted by the defendants. The issue no. 5 as framed by the trial Court read as under: “5. Whether the defendants no. 5 and 6 prove that they have purchased property of the plaintiff after complying with all the formalities?” Since it was clearly admitted by defendants no. 5 and 6 that the property belonged to the plaintiff, there was no question of framing issue no 5 as above and therefore, the question of framing issue no.1 to the effect whether the plaintiff proves that the plaintiff is the owner in possession jointly with defendants no.1 to 4 of the suit property, also did not arise. 20. In her deposition, PW1 specifically stated that the suit property belonged to their original ancestor by name Rafael J. Gomes. who was the grandfather of her mother. She further deposed that said Rafeal Gomes was survived by three sons namely John Gomes, Pascoal Gomes and Anton Gomes. She further stated that her late mother was the daughter of first wife of said Joao Baptist Gomes. She stated that said Joao had married twice and that defendants no. who was the grandfather of her mother. She further deposed that said Rafeal Gomes was survived by three sons namely John Gomes, Pascoal Gomes and Anton Gomes. She further stated that her late mother was the daughter of first wife of said Joao Baptist Gomes. She stated that said Joao had married twice and that defendants no. 1 and 3 were the issues from the second wife and defendant no. 4 was the wife of defendant no.1, whereas defendant no. 2 was the daughter of the cousin of her mother. PW1 specifically stated that the suit property was common and joint property belonging to the plaintiffs and defendants no.1, 3 and 4 and several other co-owners. It should be kept in mind that the said defendants no.1 to 4 did not file any pleadings resisting the claim of the plaintiffs as made in the plaint. PW2, Francisco Barretto also deposed that the suit property originally belonged to Rafeal Gomes, who is the father of Joao B. Gomes. He also deposed that the said Joao Baptist Gomes was married twice and that original plaintiff is the daughter of his first wife whereas defendants no. 3 and 4 are the children of the second wife of said Joao Gomes. PW1 produced the Baptism Certificate of said Joao Baptista Gomes as Exhibit PW1/B which showed that he was the son of Rafael do Rosario Gomes. PW1 produced her own Baptism certificate which showed that she was the daughter of said Joao Baptista Gomes and paternal grandchild of Rafael do Rosario Gomes. As against the above evidence produced by the plaintiffs, DW1, though stated in his examination-in-chief, that the plaintiff has no right, however, in his cross-examination, he stated that he does not know the owners of the said property. He admitted that the defendants are related to and descendants of Camilo Gomes. But he did not know whether said Camilo Gomes was the brother of Rafael Gomes. He did not know whether the defendants no. 3 and 4 were the descendants of Joao Baptista. He did not know whether defendants no. 3 and 4 were step brothers of the plaintiff Tereza Gomes. Thus, DW1 could not deny the case of the plaintiffs. The above ignorance of DW1 had to be read with the effect of failure of the defendants no. 3 and 4 were the descendants of Joao Baptista. He did not know whether defendants no. 3 and 4 were step brothers of the plaintiff Tereza Gomes. Thus, DW1 could not deny the case of the plaintiffs. The above ignorance of DW1 had to be read with the effect of failure of the defendants no. 1 to 4 to file written statement and the specific averment of the defendants no. 5 and 6 in paragraph 10 of the written statement. 21. In view of the specific averment of the defendants in paragraph 10 of the written statement to the effect that they purchased the part of the property of the plaintiff by doing all formalities, it was proved beyond doubt that the plaintiffs and defendants no.1 to 4 were the co-owners of the suit property. Therefore, the question of plaintiffs producing documentary evidence of prove their ownership did not arise. 22. Article 2015 of the Portuguese Law of Succession as applicable to the State of Goa lays down that where many persons are entitled simultaneously to the same inheritance, their right shall be indivisible both in respect of possession as well as ownership, as long as the partition has not been effected. 23. In view of the above provision, since defendants no.1 to 4 did not file any pleadings claiming that the suit property has been partitioned, it goes without saying that the suit property is undivided and not partitioned. Defendants no. 1 to 4 could not have sold a specific portion admeasuring 338 square metres to the defendants no. 5 and 6. Though the plaintiffs did not specifically pray to declare the said sale deed dated 23/04/1981 executed by defendants no. 1 to 4 in favour of defendants no.5 and 6 as null and void, however, by way of amendment, they have specifically pleaded in paragraph 5A of the plaint that the same is abinitio illegal and void. Accordingly an issue was also framed by the Trial Court as to whether the plaintiffs prove that the Sale Deed dated 24.3.81 executed by Shri Domnic Faleiro D'Silva and transferring a plot of land admeasuring 338 sq. metres in survey no. 8/32 Dongorim is null and void ab initio. In my view, therefore, the substantial question of law as framed in this Second Appeal, deserves to be answered in the affirmative and hence, the same is, therefore, answered in the affirmative. metres in survey no. 8/32 Dongorim is null and void ab initio. In my view, therefore, the substantial question of law as framed in this Second Appeal, deserves to be answered in the affirmative and hence, the same is, therefore, answered in the affirmative. 24. In view of the above, the impugned judgment, order and decree dated 16/06/2004 passed by the First Appellate Court in Regular Civil Appeal No. 173/2000 is liable to be quashed and set aside and consequently, the judgment, order and decree dated 31/08/2000 passed by the learned trial Court is also liable to quashed and set aside. 25. In the result, the Second Appeal is allowed. (a) The impugned judgment, order and decree dated 16/06/2004 passed by the learned Additional District Judge, Margao in Regular Civil Appeal No. 173/2000 is quashed and set aside. (b) The judgment, order and decree dated 31/08/2000 passed by the learned Civil Judge, Junior Division, Margao in Regular Civil Suit No.112/1982/F is also quashed and set aside. (c) The said Regular Civil Suit No.112/1982/F is allowed. Consequently, defendants no. 5 and 6, their servants, representatives, labourers or any one claiming through them are permanently restrained from in any way interfering with or doing any construction in the suit property. (d) The defendants no. 5 and 6 are directed to fill up the manhole so as to level the ground of the suit property. (e) Decree accordingly. 26. Appeal stands disposed of accordingly. Appeal is allowed.