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Judgment
F.M. Reis, J.—The above Second Appeal challenges the judgments passed by the Courts below whereby the suit filed by the Pascoal Fernandes who has now expired, to partition the suit property and mandatory injunction came to be dismissed. The suit came to be filed by the said Pascoal Fernandes/original plaintiff on the ground that there exists a property in the village of Calangute at ward Umtavaddo, which is known as ''Sapecarachem'' surveyed in the records of right under No. 176/19. It is further his case that this property is surveyed under old cadastral survey No. 4172 and that there exists a house therein bearing house No. 5/132 belonging to the said Pascoal, defendant No. 1/respondent No. 1 herein and his brother respondent No. 3 herein. It is further his case that the house has been constructed by the parents of the said brothers and the said house is undivided and consequently the said Pascoal claims that he is entitled to 1/3rd undivided share in the said house. As such, the suit came to be filed for the aforesaid reliefs.
The respondent No. 1 disputed the claim put forward by the said Pascoal and pointed out that he has no right to the suit property. It is further his case that pursuant to the sale deed executed in the year 1974, the said respondents have purchased an area of 204 square metres from the original owners and subsequently in the year 1980 the portion of the house which falls in the said area came to be demolished and reconstructed by the respondent No. 2.
On the other hand, it is further his case that the respondent No. 3 has also purchased an area of 260 square metres and the said house was constructed by the said respondent. It is further his contention that the respondent No. 3 has purchased an area of 260 square metres from the original owners also in the year 1974 and that the said respondent No. 3 had also reconstructed by demolishing the structure existing in the land purchased by the said respondents. It is further his case that no part of the suit property was undivided and as such the question of partitioning the suit property does not arise.
The learned Judge after framing the issues and recording of the evidence has come to the conclusion that the appellant has failed to establish that he has undivided share in the suit property and further on the basis of the sale deed, the learned Judge came to the conclusion that the portion of the house occupied by them belong exclusively to the respondent nos. 1 and 3. Consequently, the suit filed by the said Pascoal came to be dismissed.
The legal heirs of the said Pascoal preferred an appeal before the learned Additional District Judge, North Goa, Panaji, being Regular Civil Appeal No. 117/99 which came to be disposed of by judgment and decree dated 31.07.2001. The learned judge after reappreciating the evidence on record and considering the material adduced by the parties came to the conclusion that the appellant has no right to the suit property and consequently the appeal came to be dismissed. The learned Judge whilst disposing of the said appeal, took into consideration the fact that the respondent No. 3, the father of PW1 has purchased the eastern part of the suit property comprising of 160 square metres from Nicolau Freitas by sale deed dated 01.02.1974 and he constructed another house adjoining to the eastern portion of the suit house. The learned Judge further came to the conclusion that PW1 has carried out hotel business in the said eastern portion of the suit house as well as in the new house adjoining thereto. The learned Judge further found that the original plaintiff Pascoal Fernandes had no grievance against the said respondent nos. 3 and 4 and in fact had bequeathed his alleged rights to the wife of PW1. The learned Judge further found that the original plaintiff was in collusion with the respondent nos. 3 and 4, as in case the said Pascoal would win in the suit, the family of the respondent No. 3 would be entitled to the bigger portion. The learned Judge further considered the material on record and found that by a Deed of Conveyance dated 30.01.1974 (Exhibit D-1), the said Nicolau Freitas had sold to the respondent No. 2, the western part of the land admeasuring 204.10 square metres together with the part of the dwelling house standing therein. The learned Judge further found that the suit is filed in the year 1994 and there is no prayer to declare the said sale deed in favour of the said respondents as null and void. The learned Judge after appreciating the evidence on record has further found that in the written statement the respondent nos. 1 and 2 have clearly stated that after the purchase of the house and the property, about 8 years thereafter, they had demolished the part of the house and constructed a new house of stones, cement concrete with a separate independent twin wall adjoining the wall of the old house. The learned Judge further found that the house tax has been independently assessed to the house bearing No. 5/132. The learned Judge further found that PW1 had admitted that the said Pascoal and Lino (family of respondent No. 1) herein demolished the western part of the house and reconstructed it with the stones and put a terrace and since then the respondent No. 1 has been occupying the said portion of the house. The learned Judge has further after appreciating the evidence on record come to the conclusion that the appellant has failed to establish any right to the suit property and consequently the appeal came to be dismissed.
Shri S. D. Lotlikar, learned Senior Counsel appearing for the appellant has assailed the impugned judgment and pointed out that the suit property was undivided as according to him, there was an ancestral house which in fact belongs to the parents of the respondent nos. 1 and 3. The learned Counsel further pointed out that merely because the sale deeds have been executed by itself does not defeat the claim of the original plaintiff to the suit property as the rights in the suit property devolved upon all the children including the original plaintiff. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has erroneously appreciated the evidence on record and has come to a wrong conclusion that the appellant has failed to establish his right to the suit property. The learned counsel as such submitted that there are substantial questions of law which arise in the present appeal which require consideration.
On the other hand, Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the respondent nos. 1 and 2 has supported the impugned judgment. The learned Senior Counsel has pointed out that both the Courts below have concurrently come to the conclusion that the appellant has failed to establish any right in the suit property on the basis of the sale deed executed by the original owner Nicolau and that a specific and distinct portion of the suit property was sold to the respondent nos. 1 and 3 and that from the year 1974 such portion has been in exclusive possession of the respondent nos. 1 and 3 respectively. The learned Senior Counsel further pointed out that the suit has been filed in collusion with the respondent No. 3 and these findings of fact arrived at by the Courts below cannot be interfered in the above Second Appeal u/s 100 of Civil Procedure Code. The learned Senior Counsel has taken me through the impugned judgments of the Courts below and pointed out that there is no reason which calls for any interference in the impugned judgments.
It is also pointed out by Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the respondent nos. 1 and 2 that the right of the respondent No. 1 is confined to the area purchased by the sale deed executed in his favour on 30.01.1974 in respect of the western part and that he has no claim to the eastern portion purchased by the other brother namely respondent No. 3 herein by sale deed dated 01.02.1974. Having heard the learned Senior Counsels and on perusal of the records, I find that both the Courts below upon analysing the evidence on record have rightly come to the conclusion that the appellant has failed to establish his right to the suit property. Whilst coming to such conclusion the Lower Appellate Court has relied upon a sale deed executed in the year 1974 in favour of the respondent nos.1 and 3 and rightly come to the conclusion that the house constructed by the respondent nos. 1 and 3 in their respective portions exclusively belong to them. It is further to be noted that the appellant has not brought any evidence on record in what capacity the parents of the respondent nos. 1 and 3 have a right to the suit property and whether they were occupying, if at all the suit property. Apart from that, there is nothing on record to establish that the land where the alleged ancestral house was located belongs to the parents of said Pascoal and the respondent nos. 1 and 3. Considering that there are concurrent findings arrived at by the Courts below on the basis of the evidence on record against the appellant and no perversity has been pointed out by the appellant in such findings, I find that there is no substantial question of law which arises in the present appeal which calls for interference by this Court u/s 100 of Civil Procedure Code. Both the Courts below on the basis of appreciating evidence on record and the material adduced by the parties have come to the conclusion that the appellant has failed to establish his right to the suit property. The sale deed on record have not been challenged by the said appellant. The respondent No. 1 has also re-constructed the portion purchased by him without any objection from any person including the said Pascoal. There is no documentary evidence adduced by the appellant that the said Pascoal had a right to the suit property or that any such right devolved upon him by inheritance. Hence, I find no merit in the above appeal which stands accordingly dismissed.