Ram Keshav Shilkar vs Prabhacar Dattaram Sirvoicar, Anand Manguesh Sinai Coissoro and Smt. Parvatibai Anand Sinai Coissoro

N.A. Britto, J.—This Second Appeal is by Defendant No.3 in R.C.S. No.146/2000/B. Heard Shri Sudin M. S. Usgaonkar, learned Counsel appearing on behalf of the Appellant/Defendant No.3.

There is no dispute that the suit property surveyed under No.41/1 was the subject matter of inventory proceedings between the Plaintiff, Defendant Nos.1 and 2 and one Balkrishna Coissoro and as per the consent terms filed therein, the Plaintiff got an undivided half right to the said property, 1/4th went in favour of Defendant Nos.1 and 2 and the remaining 1/4th to the children of the said Balkrishna Coissoro.

The Plaintiff filed the suit with the allegation that in July, 1986 he noticed that one shed was being constructed in the said property and therefore served a legal notice dated 12-7-1986 calling upon Respondent No.3 to remove the said shed. The notice was replied by Respondent No.3 by letter dated 22-7-1986. The case of Defendant No.3 in short was that he constructed the said shed after he purchased 360 sq. meters of the said property pursuant to an agreement dated 16-1-1985 and sale deed dated 26-12-1987 from Defendant Nos. 1 and 2. The case of the Plaintiff was that as the Plaintiff was the co-owner of the suit property and the said shed was put up without his consent he was entitled for demolition of the said shed and restoration of possession of the property, to all the co-owners including the Plaintiff.

The learned trial Court decreed the suit filed by the Plaintiff by Judgment dated 31-12-2004 and directed the demolition of the said shed constructed by Defendant No.3 in the said 360 sq. meters, in survey No.41/1 and restoration of the land underneath to its original condition. The learned trial Court proceeded on the basis that the Plaintiff was the co-owner of the suit property which was sold by Defendant Nos.1 and 2 to Defendant No.3 without the consent of the Plaintiff and as such the sale deed under which it was sold to Defendant No.3 was null and void ab initio. In this context, reference could be made to the Judgment of this Court in Jose Antonio Miranda and another v. John Luis((1999) 1 GLT 177) wherein this Court with reference to Article 2177 of the Civil Code, 1867, in force in this State, has held that a co-owner cannot dispose off either the entire property or any specific portion thereof until the share of such co-owner in the property is allotted, partitioned or separated in loco. In other words, Defendant Nos.1 and 2 could not have sold to defendant No.3 the specific portion admeasuring 360 sq. meters in favour of Defendant No.3 and such a sale was null and void in law. That was the heart of the controversy.

Both the Courts have also come to the conclusion that Defendant No.3 was not a purchaser in good faith. The learned trial Court has come to the conclusion that Defendant No.3 got the said sale deed executed from Defendant Nos. 1 and 2 inspite of knowing that the Plaintiff was the co-owner of the property and as such no good faith could be attributed to Defendant No.3. The learned first appellate Court has also come to the conclusion that Defendant No.3 was not a purchaser in good faith. The learned first appellate Court has also come to the conclusion that Defendant No.3 was not a bona fide purchaser because Defendant No.3 had taken no steps and did not care to verify the title documents before executing the sale deed. These are but concurrent findings of facts rendered by both the Courts below.

As regards the submission of learned Counsel appearing on behalf of the Appellant that the wife of Defendant No.3 was not joined as a party to the suit, she being a necessary party, this aspect has been dealt with by the learned first appellate Court in its Judgment. Firstly, no relief was sought by the Plaintiff as against her and no plea of her non joinder was raised by Defendant No.3 in his written statement and such a plea not having been raised the same had to be considered as waived in terms of the relevant provisions of the Code of Civil Procedure, in that regard. The learned first appellate Court therefore rightly held that Defendant No.3 had to take the plea of non joinder of his wife in the written statement and could not take the same thereafter. As regards the Plaintiff not seeking a declaration in the suit, the learned first appellate Court relying on Indumatiben v. Union of India(AIR 1969 Bom. 432) has held that an injunction as a substantive relief can be granted without a prayer for declaration. The same view has been reiterated by this Court in the case of Shri Shripad Dharma Naik v. Devalaia of Goa Betal of Fatorpa through its attorney Shri Kishore R. Kane and another(Second Appeal No.4 of 1999, decided on 6-8-2004) which reads as under:-

The first in an unreported decision of this Court dated 6th April, 2004, in First Appeal No. 89 of 1996 in the case of Shri Gopal Balcrishna Fallary and another v. State of Goa and others wherein the decision of the Supreme Court in the case of Corporation of the City of Bangalore Vs. M. Papaiah and Another, was referred to in support of the proposition that the suit could not be dismissed on the ground that the relief of declaration of title and possession was not specifically mentioned in the plaint. Reference was also made in that case to the case of Uchhab Gouda and Others Vs. Ganesh Panda, wherein it was observed that it is not in the least necessary for a Plaintiff in a suit for possession to claim a declaration. It was further observed that indeed declarations in the true sense are rarely required. The Plaintiff should only allege the facts necessary to establish his title and that the Defendant is wrongfully in possession. If, he goes on to claim, in the manner so beloved of pleaders, a declaration of title in addition to an order for possession, the Court may and should treat the case as a claim for possession, pure and simple, and ignore entirely the claim for a declaration of title.

Learned Counsel on behalf of the Appellant also submits that the Plaintiff did not seek cancellation of the sale deed. This plea was not taken before, before the Courts, below and therefore cannot be a substantial question of law. A perusal of Section 31 of the Specific Relief Act, 1963 shows that it was merely optional and on that count the suit of the Plaintiff could not have failed. Learned Counsel on behalf of the Appellant also refers to Section 41 of the Transfer of Property Act, 1882 and submits that Defendant Nos.1 and 2 had represented that they were the ostensible owners of the property and Defendant No.3 had purchased it after taking reasonable care. This submission would not stand in the light of the concurrent findings given by the Courts that Defendant No.3 was not a bona fide purchaser of the property inasmuch as Section 41 is of no application to the facts of the case and what would be relevant are the provisions of Article 1777 of the said Code. The Plaintiff was a co-owner of the property. Defendant Nos.1 and 2, who were other co-owners could not have transferred a specific portion of the property in favour of Defendant No.3 without the consent of other co-owners and such a transfer was void and Defendant No.3 could not have acquired any right under it. Both the Courts below have correctly decided the dispute between the parties. There are no substantial questions of law arising from the suit. Second Appeal with Civil Application No.186 of 2008 is therefore hereby dismissed.