Narayan Babu Velip vs Dhillan Sada Dessai

U.V. Bakre, J.—Heard Mr. Usgaonkar, learned Counsel appearing on behalf of the appellants and Mr. Dukle, learned Counsel appearing on behalf of the respondents in the both the appeals.

This common judgment shall dispose of the above Second Appeals, since both the appeals pertain to the same suit property and facts are also similar.

Second Appeal No. 69 of 2008 arises out of the judgment, order and decree dated 25/01/2008 passed by the learned District Judge-I, South Goa, Margao (''First Appellate Court'', for short) in Regular Civil Appeal No. 64/2007 by which the judgment and decree dated 29/08/2007 passed by the learned Civil Judge, Junior Division, Canacona (''Trial Court'', for short) in Regular Civil Suit No. 45/2003 has been quashed and set aside. Second Appeal No. 96/2008 arises out the judgment, order and decree dated 05/06/2008 passed by the learned District Judge-3, South Goa, Margao (''First Appellate Court'') in Regular Civil appeal No. 73/2007 by which the judgment and decree dated 29/08/2007 passed by the learned Civil Judge, Junior Division, Canacona (''Trial Court'') in Regular Civil Suit No. 20/2004 has been quashed and set aside.

The appellants are the plaintiffs in the respective suits, whereas the respondent is defendant in both the suits. Parties shall hereinafter be referred to as per their status in the suits.

The plaintiffs had filed the said suits for permanent injunction to restrain the defendant, his agents, servants, family members, etc., inter alia, from extracting mud, laterite stones and causing loss and damage to the suit property in any manner.

The plaintiffs alleged, in the plaint in both the suits, that they are owners in possession of the property known as "Tolem" situated at Gaondongrim, Canacona, bearing Land Registration No. 16738 and Survey Nos. 196/2(part), 196/3, 196/4(part), 196/1(part) and 199/1(part). They claimed that the said property originally belonged to late Pauto Mono Velip Barcencar, Tambdo Chandru Velip Barcencar, Quelso Chandru Velip Barcencar and Modco Paico Velip Barcencar and that the successors of said Quelso Velip Barcencar are late Kusta Quelso Gaonkar, Babu Quelso Velip Barcencar, Ram Quelso Velip Barcencar and Paico Quelso Velip Barcencar. Plaintiff no 1 of Regular Civil suit no. 45/03 is the successor of Babu Velip whereas Plaintiff no. 1 of Regular Civil Suit No. 20/2004 is successor of Modco Paico Velip Barcencar and thus, the plaintiffs have inherited rights and interest in the said property. The subject matter of both the suits was part of Survey No. 196/2 which is called as the suit property. According to the plaintiffs, the said property is commonly owned, possessed and used by the plaintiffs and other co-owners without any obstruction from anyone including the defendant. Alleging that the defendant criminally trespassed in the suit property with bulldozer and started removing mud and extracting laterite stones therefrom, the plaintiffs filed the suits.

The defendant, vide his written statement filed in the respective suits, inter alia, denied that the said property bearing land registration no. 16738 is surveyed under different survey numbers as stated in the plaint and more particularly survey no. 196/2. He alleged that the plaintiffs have nothing to do with the suit property bearing Survey No. 196/2 of village Gaondongrim and that the same belongs to Shri Dev Mallikarjun and that the same is known as "Sanvorimatta" and that the property "Tolem" is half Kilometre away from the said property "Sanvorimatta". The defendant further alleged that in pursuance of no objection, issued on 28/06/2003, by the Committee of Shri Dev Mallikarjun of Sristhal, the defendant started doing the said work in the suit property, for the purpose of extracting laterite stones from the suit property bearing survey no. 196/2.

Following issues were framed in Regular Civil Suit No. 45/2003.

Does plaintiffs prove that they are co-owners of the suit property as described in para (2) of the plaint?

Does plaintiffs prove that on 12/11/2003 defendant interfered in the suit property?

Does defendant proves that survey No. 196/2 is known "SANVORIMATA" of Sri Dev Mallikrjun of Shristhal, Gaondongrim?

What relief? What order?

Following issues were framed in Regular Civil Suit No. 20/2004:

Does plaintiffs prove that they are co-owners of the suit property?

Does defendant proves that survey No. 196/2 exclusively belongs to Sri Dev Mallikarjun of Shristhal known as "Sanvorimata"?

Does plaintiffs prove that they had cause of action to file this suit?

What relief? What order?

The plaintiffs in Regular Civil Suit No. 45/2003 examined plaintiff no. 1 as PW1, Shri Sudhakar Ram Velip Gaonkar (plaintiff no. 1 of Regular Civil Suit No. 20/2004) as PW2, Shri Ganesh Tolyo Gaonkar as PW3, Shri Tolu Paik Velip as PW4 and Shri Vaikunth Keshav Kamat as PW5, whereas the defendant examined himself as DW1 and Shri Babu Panglo Velip as DW2. In Regular Civil Suit No. 20/2004, the plaintiffs examined the plaintiff no. 1 as PW1, Shri Narayan Babu Velip (plaintiff no. 1 of Regular Civil Suit No. 45/03) as PW2, and said Vaikunth Keshav Kamat as PW3. The defendant examined himself as DW1 and Shri Babu Panglo Velip as DW2.

Upon consideration of the entire evidence on record, vide judgments dated 29/08/2007 passed in Regular Civil Suit No. 45/2003 and Regular Civil Suit No. 20/2004, the Trial Court decreed the suits thereby restraining the defendant, his agents, family members, servants, etc. from trespassing into the suit property bearing Survey No. 196/2(part) and extracting mud, laterite stones and causing loss and damage to the suit property in any manner. It observed that the names of Babu Velip and Rama Velip as well as other persons are figuring in Survey Records and plaintiffs of R.C.S. NO. 45/03 are successors of said Babu whereas plaintiffs of R.C.S. No. 20/04 are the successors of said Rama and that the Land Registration Document of Description No. 16738 reveals that the property of Devasthan lies on the southern side of the property of the plaintiffs. The Trial Court observed that in Judgment and decree dated 21/12/2001 passed in Regular Civil Suit No. 126/00, the plaintiffs have been held to be in possession of the suit property bearing survey no. 196/2(part). It further observed that the plaintiffs have produced the certificate dated 27/02/1998 which suggests that the property "Tolem" was owned by one Paica Modco Velip of Barsem and that the said Paica had paid for to the Communidade in respect of the property "Tolem". He also observed that the plaintiffs have produced the inscription and description which revealed that the property bearing Land Registration No. 16738 was described on 31/03/1924, for mortgage, in favour of Esvonta Purxotoma Folo Dessai, constituted by Pauto Mono Velip Barcencar, Tambdo Chandru Velip Barcencar, Quelso Chandru Velip Barcencar and his wife Baguiroti and Modco Paico Velip Barcencar. The trial Court held that the case of the plaintiffs was corroborated by the witnesses examined by the plaintiffs. The trial Court further observed no title document in favour of Shri Dev Mallikarjun has been produced by the defendant. It observed that Form No. III has the name "Tolem" which is consistent with the Land Registration Document produced by the plaintiffs, containing the name as "Tolem". He held that the defendant failed to prove that the property bearing Survey No. 196/2 belongs to Dev Mallikarjun. In Regular Civil Suit No. 45/03, the issues no. 1 and 2 were answered in the affirmative and the issue no. 3 was answered in the negative, whereas in Regular Civil Suit No. 20/04, issues no. 1 and 3 were answered in the affirmative and issue no 2 was answered in the negative. Consequently, both the suits came to be dismissed.

Aggrieved by the impugned judgments dated 29/08/2007 passed by the Trial Court, in both the suits, the defendant filed the said Regular Civil Appeals No. 64/2007 and 73/2007. In Regular Civil Appeal No. 64/07, the point for determination as framed was whether the plaintiffs are entitled for an order of injunction restraining the defendant permanently from interfering into the suit property and extracting the laterite stones. In Regular Civil Appeal No. 73/07, following points were formulated: (1) whether the appellants or respondents are in possession of the suit property?; (2) whether the plan sought to be produced is necessary for disposal of the suit?; and (3) whether the impugned order calls for interference. Points no. 1 and 2 above have been answered in the negative whereas the point no. 3 is answered in the affirmative. As already stated above, by the impugned judgments and decrees passed in the said Regular Civil Appeals, the suits of the plaintiffs have been dismissed, by setting aside the judgments and decrees of the Trial Court. The dismissal of the suits is mainly on the ground that the plaintiffs have failed to identify the suit property. Aggrieved by the judgments and decrees in the said Regular Civil Appeals, the above Second Appeals have been preferred.

Second Appeal No. 69/2008 has been admitted on the following substantial questions of law:

(i) Whether the learned Appellate Judge fell in error in respect of settled principles of law that denial ''for want of knowledge'' amounts to an admission of the fact so denied and reversed the finding of the learned Trial Judge as regards the title of the appellants to the suit property?

(ii) Whether the learned Appellate Judge erred in lending, to the entry to the form No. III, the very presumptive value and held that the respondents did not have any right to interfere in the suit property?

(iii) Whether the learned Appellate Judge erred in law to ignore the presumption created in favour of the entries in Land Registration Certificate under Article 181 of the Cardigo Ragis Predial and reversed the finding of the Trial Court that the appellant had proved the title to the suit property?

Second Appeal No. 96/2008 has been admitted on the following substantial questions of law:

a. Whether in holding that the appellant had not proved that the property "Tollem" recorded in the Index of Lands under No. 196/2 was the same as "Tollem" described in Land Registration Office under no. 16738 in favour of the ancestors of the appellants, the learned appellate Judge did not consider the material evidence in form of eponymous entries in the Land Registration Certificate and Index of Lands (Form III) and thus committed error of law in misreading the evidence on record?

b. Whether in reversing the finding of the Trial Court that the appellant had proven the title to the suit property, and probing into the title of the ancestors of the appellants thereto, the learned appellate judge erred in law to ignore the presumption created in favour of the entries in Land Registration Certificate under Article 181 of the Codigo Regis Civil, particularly when the respondent had not set up a claim to the suit property through any of the said original owners?

c. Whether the first appellate Court erred in holding that the appellant had failed to identify the suit property, when the respondent had admitted interference in the suit property and both the parties were not at issue as to the identity of the property?

d. Whether the First appellate Court committed illegality in holding that Malikarjun Temple ought to have been impleaded as a party to the suit, when the suit was only for permanent injunction and mandatory injunction against the person giving cause of action and was not a suit for declaration?

From the above, it is seen that in Second Appeal No. 96/2008, the substantial question of law with regard to the identity of the suit property has been framed, but the same, though arises also in Second Appeal No. 69/2008, has not been framed therein. Hence, with the consent of the parties an additional substantial question of law is framed in Second Appeal No. 69/2008 which is as under:

Whether the First Appellate Court erred in holding that the appellants had failed to identify the suit property, when the respondent had admitted interference in the suit property and both the parties were not at issue as to the identity of the property?

Mr. Usgaonkar, learned Counsel appearing on behalf of the plaintiffs submitted that the plaintiffs had produced three documents namely: the description document made at the time of registration of "Hipotec"(Mortgage), in favour of Esvonta Puruxotoma Folo Dessai, constituted by the ancestors of the plaintiffs as named in the plaint, which is at exhibit 29 in Regular Civil Suit No. 45/03; document issued by Communidade of Gaondongrim saying that "Aforamento de Tolem" stands in the name of Paica Modco Velip of Barca with indication of foros payable to the communidade, which is at exhibit 27 and Form No. III of Survey 196/2 which is at exhibit 24, in the said regular Civil Suit No. 45/03. He submitted that in the Survey Records, the name of the property is mentioned as "Tolem" and names of the ancestors of the plaintiffs are included in the occupants'' column. As against this, according to the learned Counsel for the plaintiffs, the defendant had produced only the NOC issued by Mallikarjun Devalaya without producing any document of title of said Devasthan. He submitted that the said NOC pertains to a property known as "Sanvorimatta" and not to "Tolem". According to the learned Counsel, though Form No. III may not have presumptive value, however, it has some evidentiary value. He further contended that the genealogy given by the plaintiffs in the plaint and confirmed in the oral evidence has not been specifically denied and the denial of the defendant was only for want of knowledge. He submitted that denial for want of knowledge is not a denial and that it amounts to admission. In this regard, he relied upon the case of Jahuri Sah and Others Vs. Dwarka Prasad Jhunjhunwala and Others, . He submitted that in terms of Land Registration Document bearing Description No. 16738, the property of Mallikarjun Devasthan is to the south of the property of the plaintiffs and therefore, Mallikarjun Devasthan has nothing to do with the suit property. According to the learned Counsel, the identity of the suit property was not at all in dispute and that the defendant had not denied interference in the suit property. Without prejudice to the above, learned Counsel contended that because of the name of Mallikarjun Devasthan appearing in the Survey Records, if the plaintiffs are to be taken as co-occupants along with Devasthan then also, Mallikarjun Devasthan cannot change the nature of the suit property by allowing someone to extract laterite stones and leave the suit property with big holes. That would amount to wastage of the suit property. He pointed out that the plaintiffs had not filed the suits for declaration and that the suits were only for injunction. He relied upon the judgment of this Court in the case of Shri Yeshwant Keshav Vaigankar; and His wife and Mrs. Yoshovita Yeshwant Vaigankar Vs. Shri Ramesh Keshav Vaigankar and Others , wherein it has been held that construction of mud wall is an alteration of immovable property which cannot be done by one co-owner without the consent of the other co-owner. He, therefore, urged that both the Second Appeals are bound to be allowed by answering all the substantial questions of law in favour of the plaintiffs. He, therefore, submitted that the suits filed by the plaintiffs be decreed.

On the other hand, Mr. Dukle, learned Counsel appearing on behalf of the defendant mainly contended that the said property bearing Land Registration Description No. 16738 has not been identified and proved to be corresponding to Survey No. 196/2 (part) and other survey holdings in respect of which the plaintiffs are claiming title and possession. He submitted that even the extent of part of Survey No. 196/2 (suit property) as claimed by the plaintiffs is not known and the location of the same is also not known. He, therefore, urged that on this ground alone, the present Second Appeals are liable to be dismissed, as has been done by the learned First Appellate Courts in both the appeals. He submitted that the defendant had acted upon the NOC issued to him in respect of Survey No. 196/2 by Mallikarjun Devasthan and, therefore, he cannot be termed as trespasser. He pointed out that name of Mallikarjun Devasthan appears in Form No. III of Survey No. 196/2 and further pointed out that Mallikarjun Devasthan has filed Civil Suit No. 59/1992/A for deletion of the names of the plaintiffs and others from Survey Records of Survey No. 196/2. He submitted that there is no substance in the present appeals and, therefore, both the appeals be dismissed with costs.

I have gone through the relevant material on record. I have considered the submissions advanced by the learned Counsel for the parties and also the judgments relied upon by the learned Counsel for the plaintiffs.

As has been rightly contended by the learned Counsel appearing on behalf of the defendant, the main substantial question of law, which arises in both the present Second Appeals is regarding the identification of the suit property, which is claimed to be belonging to and in possession of the plaintiffs. If this question of law gets answered against the plaintiffs, then, other substantial questions of law need not at all be decided as they would not have any relevance.

The case of the plaintiffs was that the suit property bears Survey No. 196/2(part) and that the same is part of the property bearing land registration description no. 16738, with particular boundaries as mentioned in the plaint, which in turn bears survey nos. 196/2(part), 196/3, 196/4(part), 196/1(part) and 199/1(part). Thus, the title document of the plaintiffs is the Land Registration Description under no. 16738. Obviously, the Land Registration Document cannot contain the survey number as the survey operations were held subsequently. Therefore, it was incumbent upon the plaintiffs to have cogently proved the location of parts of survey holdings no. 196/1, 196/2 and 199/1 and that the property bearing Land Registration Description No. 16738 and property bearing Survey Nos. 196/2(part), 196/3, 196/4(part), 196/1(part) and 199/1(part) as claimed by them is one and the same. The plaintiffs had not claimed title and possession in respect of the entire survey holding No. 196/2. It may be true that as between the parties to the suits, there was no dispute as to the identity of the property which is the subject matter of the suits since that was the one in which the defendant had interfered. But in order to prove that the said portion in survey no. 196/2(suit property) was of the ownership of and in possession of the plaintiffs, it was incumbent on the plaintiffs to have averred in the plaint and established by way of evidence as to what is the area of the suit property situated in Survey No. 196/2 and as to where exactly in the said survey holding it lies and that the same, along with other survey holdings as mentioned in the plaint, corresponds with the property described under Land Registration Description No. 16738. This has not been done by the plaintiffs, in both the suits. The learned First Appellate Court, in both the appeals, has specifically held that the plaintiffs have failed to show that the suit property surveyed under No. 196/2(part) corresponds to the property under Land Registration Description No. 16738.

In both the suits, the plaintiffs, through PW1, produced a sketch showing the encroachment, which was marked "X" for identification. However, the said sketch has not at all been proved. Shri Vaikunth Keshav Kamat, Ex-Field Surveyor, examined in both the suits, neither performed the exercise of superimposing the old cadastral plan of the land bearing Land Registration Description No. 16738 on the new Survey plan nor did he ascertain the extent of the property bearing land registration no. 16738 from the boundaries mentioned therein or in any other manner and compare the same with the new survey records, to establish that the said property corresponds with the property bearing Survey No. 196/2(part) and other survey numbers, as claimed by the plaintiffs. The evidence of said Kamat only shows the encroachment, but that cannot prove that the said encroachment lies in the property bearing Land Registration Description No. 16738. In the circumstances above, the substantial question of law pertaining to the identity of the suit property gets answered against the plaintiffs.

In Regular Civil Appeal No. 73/2007, during the course of arguments, when confronted with the question of identification of the property allegedly owned and possessed by the plaintiffs, learned Counsel for the plaintiffs filed an application under Order XLI Rule 27 of C.P.C. for leave to produce additional document namely the site plan showing encroachment and a sketch showing the property "Tolem" bearing survey nos. 196/2(part), 196/3, 196/4(part), 196/1(part) and 199/1(part). By valid reasons, in detail, the learned First Appellate Court rejected the said application for leave to produce additional evidence.

Contention of the learned Counsel appearing on behalf of the plaintiffs to the effect that in the Survey Records, the names of plaintiffs and of Mallikarjun Devasthan appear as co-occupants and, therefore, the defendant cannot interfere in the suit property without the consent of the plaintiffs, cannot be considered in these appeals. First of all, the survey records are only in Form No. III, which is merely a draft open for objections and it has no presumptive value at all. Even otherwise, it is well settled that survey records cannot confer title. There is no dispute that Sri Mallikarjun Devasthan have filed Special Civil Suit No. 59/92/A for deletion of the names of other persons as occupants in survey no. 196/2. The case as filed by the plaintiffs is not based on co-ownership as per the survey records but is based on exclusive ownership and possession of survey no. 196/2(part).

In view of the above, in my considered view, the other substantial questions of law as framed in both the second appeals are not relevant, as they cannot affect the impugned judgments and decrees, in view of the failure of the plaintiffs to identify their property. The judgments relied upon by the learned Counsel for the plaintiffs are also therefore not relevant.

In all the circumstances above, the above Second Appeals are bound to fail.

In the result, both the Second Appeals are dismissed, however, in the facts and circumstances of the case no order as to costs.