Judgment : 1. Heard Mr. S. D. Lotlikar, learned Senior Counsel appearing for the appellant and Mr. M. B. Da Costa, learned Senior Counsel appearing for the respondents. 2. The above appeal came to be admitted on the following substantial question of law by order dated 16.07.2009. “Whether the year in which encroachment has been alleged in the plaint is determinative in a suit for restoration of possession of the encroached land and for recovery of possession based on title particularly when the Court has negated the defence of acquiring the title by prescription raised by defendant? 3. Mr. S. D. Lotlikar, learned Senior Counsel appearing for the appellant has submitted that the appellant has purchased the property pursuant to the sale deed dated 20.05.1981 which was surveyed under nos.207/1 and 207/2 besides another property known as 'Gorbat' as identified in the Schedule attached to the said sale deed. The learned Senior Counsel has taken me through the said sale deed and pointed out that the disputed property in the present case is the one which is surveyed under no.207/1 which has been purchased by the appellant excluding an area of 500 square metres which was reserved for the vendors therein. The learned Senior Counsel further pointed out that on the basis of the said sale deed, the appellant has acquired title to the disputed property and as such the appellant is entitled to the ownership and possession thereof. The learned Senior Counsel further pointed out that the appellant has filed a suit against the respondents on the ground that the respondents had put up a construction in the said portion of the property and as such sought a relief inter-alia for demolition of the structure and the restoration of possession. The learned Senior Counsel further pointed out that once title is established, possession follows the title and consequently a title holder can be non-suited only if adverse possession is proved by the opposite party. The learned Senior Counsel further pointed out that it is the contention of the respondents that they have put up a construction pursuant to the sale deed executed in the year 1982 which according to him has been executed by the same vendors. The learned Senior Counsel further pointed out that the respondents otherwise are mundkars in respect of another property which has nothing to do with the subject matter of the present suit. The learned Senior Counsel further pointed out that the respondents otherwise are mundkars in respect of another property which has nothing to do with the subject matter of the present suit. The learned Senior Counsel has taken me through the judgment of the Trial Court and pointed out that the learned Judge has accepted the title of the appellant nevertheless, non suited the appellant on the ground that the cause of action as mentioned in the plaint has not been established. The learned Senior Counsel further pointed out that as title of the appellant was established, the learned Judge was not justified to dismiss the suit filed by the appellant. The learned Senior Counsel thereafter has taken me through the judgment of the learned Lower Appellate Court and pointed out that the learned Lower Appellate Court at one stretch has accepted the title of the appellant whereas in the remaining portion of the judgment has vaguely given a finding that the disputed structure was beyond the property purchased by the appellant. The learned Senior Counsel further pointed out that this was not the case of the respondents before the Courts below and as such the said findings of the learned Judge have no foundation in the pleadings of the respondents. The learned Senior Counsel further pointed out that the learned Lower Appellate Court has erroneously appreciated the evidence on record and passed the impugned judgment. The learned Senior Counsel as such submits that the substantial question of law framed by this Court is to be answered in favour of the appellant. 4. On the other hand, Mr. M. B. Da Costa, learned Senior Counsel appearing for the respondents has supported the impugned judgment. The learned Senior Counsel has pointed out that the Courts below have erroneously found that the sale deed of the year 1992 was a part of the property which has been purchased by the appellant when according to him the said area was beyond the subject matter of the sale deed in favour of the appellant in the year 1981. The learned Senior Counsel further pointed out that the construction was already existing and as such the Courts below were justified to refuse the relief in favour of the appellant. The learned Senior Counsel further pointed out that the construction was already existing and as such the Courts below were justified to refuse the relief in favour of the appellant. The learned Senior Counsel further pointed out that the respondents have filed an application to produce additional documents under Order 41 Rule 27 of the Civil Procedure Code to bring to the notice of the Court that during the pendency of the proceedings, the appellant has conveyed a portion of the property purchased by the appellant. The learned Senior Counsel further submitted that as the appellant has no cause of action to proceed with the suit, the question of entertaining the above Second Appeal would not arise. The learned Senior Counsel further submitted that the appellant has not disclosed the exact portion of the property where the disputed structure is located and as such as the exact disputed portion has not been established, the question of granting any relief in favour of the appellant would not arise. The learned Senior Counsel has taken me through the impugned judgment of the learned Lower Appellate Court and pointed out that the learned Lower Appellate Court has given a categorical finding that the disputed structure was beyond the area purchased by the appellant. The learned Senior Counsel thereafter has taken me through the sale deed relied upon by the appellant and pointed out that the construction which has been put up by the respondents is in the property which the respondents have purchased from the same vendors in the year 1992. The learned Senior Counsel as such submits that the substantial question of law is to be answered in favour of the respondents. 5. I have carefully considered the submissions of the learned Senior Counsel and I have also gone through the records. With regard to the substantial question of law, it cannot be disputed that possession follows title. Once the appellant has established his title, the refusal of the relief of restoration of possession would not arise unless the opposite party establishes the claim of adverse possession. In the present case, there is no case made out by the respondents herein of any adverse possession and as such in case the appellant establishes his title to the disputed portion of the property, no doubt, the appellant would be entitled for restoration of possession. 6. Taking note of the contention of Mr. In the present case, there is no case made out by the respondents herein of any adverse possession and as such in case the appellant establishes his title to the disputed portion of the property, no doubt, the appellant would be entitled for restoration of possession. 6. Taking note of the contention of Mr. M. B. Da Costa, learned Senior Counsel appearing for the respondents that the disputed structure is located beyond the property purchased by the appellant, I find that on the basis of the pleadings and the defence raised by the respondents in the written statement filed in the suit, there is no categorical and specific defence on that count raised by the respondents. Apart from that, even on perusal of the issues framed by the learned Trial Court, I find that there is no specific issue on that count. No doubt, the learned Lower Appellate Court while passing the impugned judgment has vaguely held that the disputed structure is located beyond the property purchased by the appellant. But however, this aspect has been seriously disputed by Mr. Lotlikar, learned Senior Counsel appearing for the appellant. In such circumstances, as the identity of the extent of title claimed by the appellant is disputed by the respondents, I find it appropriate and in the interest of justice to appoint a Commissioner for the purpose of identifying the area purchased by the appellant pursuant to the said sale deed dated 20.05.1981 surveyed under nos.207/1 and 207/2 of Calangute Village. This exercise is resorted to considering the contentions advanced by the learned Senior Counsel appearing for the respective parties that there are no specific foundation in the pleadings nor in the issues framed by the learned Trial Court. With regard to the identity of the property and the disputed structure has not been clearly identified to direct the restoration of the possession of the property of such area to the appellant. The learned Lower Appellate Court shall as such decide the appeal preferred by the appellant afresh after duly considering the report from such Commissioner in accordance with law. 7. With regard to the contention of Mr. The learned Lower Appellate Court shall as such decide the appeal preferred by the appellant afresh after duly considering the report from such Commissioner in accordance with law. 7. With regard to the contention of Mr. M. B. Da Costa, learned Senior Counsel appearing for the respondents that in the meanwhile the appellant has also disposed of the property which he has purchased pursuant to the said sale deed, I find that this aspect can be considered by the learned Lower Appellate Court in case a defence on that count is duly laid by the respondents in the pleadings in the suit. The respondents are at liberty to file an appropriate application with that regard before the learned Lower Appellate Court and the same shall be considered on its own merits after hearing the appellant in accordance with law. 8. In view of the above, I find it appropriate to quash and set aside the judgment of the learned Lower Appellate Court and remand the matter to the learned Lower Appellate Court to decide the said appeal afresh. The learned Lower Appellate Court shall appoint a Commissioner after hearing both the parties to identify the property purchased by the appellant pursuant to the said sale deed dated 20.05.1981 and ascertain the location of the disputed structure occupied by the respondents. After examining the report of the Commissioner in accordance with law and the evidence on record, the learned Lower Appellate Court shall decide the appeal afresh after hearing the parties in accordance with law. 9. Mr. M. B. Da Costa, learned Senior Counsel appearing for the respondents further submits that the respondents will file an application to implead a new purchaser also in the appeal. In case such application is filed, the learned Lower Appellate Court shall decide such application on its own merits after hearing the appellant in accordance with law. 10. In view of the above, I pass the following: ORDER (i) The appeal is partly allowed. (ii) The impugned judgment dated 20.01.2009 passed by the learned Lower Appellate Court is quashed and set aside. (iii) Regular Civil Appeal No.60/2003 is restored to the file of the learned Lower Appellate Court. (iv) The learned Lower Appellate Court is directed to decide the said appeal afresh in the light of the observations made herein above after hearing the parties in accordance with law. (iii) Regular Civil Appeal No.60/2003 is restored to the file of the learned Lower Appellate Court. (iv) The learned Lower Appellate Court is directed to decide the said appeal afresh in the light of the observations made herein above after hearing the parties in accordance with law. (v) All other contentions of both the parties on merits besides the findings herein above are left open. (vi) The parties are directed to appear before the learned Lower Appellate Court on 16.06.2014 at 10.00 a.m. (vii) The appeal stands disposed of accordingly.