Vinayak Xete Lotlikar (Since deceased) represented by his Lrs. and Prabhavati V. Lotlikar, widow (Ananta V. Lotlikar and his wife and Others) vs Emericiano Da Costa and his wife and Others

U.V. Bakre, J.—Heard. The appellants are the plaintiffs who had filed a Regular Civil Suit No. 266/1974/E praying as follows :

(a)For declaration that the suit property belongs to the original plaintiffs; (b)For possession of the portion where the defendants have wrongfully trespassed;

(c)For permanent injunction restraining the defendants from interfering with the possession of the plaintiffs; and

(d)For mesne profit at the rate of Rs. 30/-per year being the approximate value of the paddy produce in the portion usurped, from the date of suit till final eviction.

The case of the plaintiffs was that they are owners in possession of the property "SARVILEA MORODA", situated at Guirdolim, registered in the Land Registration Office of Salcete, under no. 16611 and in the Taluka Revenue office under Matriz no. 375. The boundaries of the said property as per the Land Registration Certificate as also the present boundaries were stated in paragraphs (1) and (2) of the plaint and it was further pleaded that the said property is as depicted in the croqui annexed to the plaint and marked as "X". The original plaintiff purchased the said property from the father of the defendant no. 1, by sale Deed dated 16/06/1950. He sold the same to his father-in-law who in turn gifted the same to the son of original plaintiff, who gifted it back to the original plaintiff. The original plaintiff further claimed that he built an agricultural house in the said property and carried out agricultural operations therein and enjoyed the fruit trees and paddy land. According to the plaintiffs, by misguiding the Mamlatdar of Salcete, the defendant no. 2 secured orders dated 30/9/74, u/s 145 of the Code of Criminal Procedure (Cr.P.C.), and harvested and took away the paddy from the portion of the land and uprooted six coconut saplings. The defendant no. 2 also filed a case under the Mamlatdar''s Court Act, against the original plaintiff, to reopen the drain in the property. The plaintiffs contended that the alleged drain did not exist in the past and it was recent excavation done by the original defendants taking advantage of the absence of the original plaintiff who was in Bombay. By way of amendment carried out to the plaint on 13/11/1992, it was pleaded that the said property bears survey holdings no. 75/1, 76/1 and 104 (western portion, not being the paddy field).

The case of the defendants was as follows :

The croqui annexed to the plaint includes considerable part of the property of the original defendants which is known as "Cutumbana Fatista" or Fourth Part of the paddy field and mixed garden Corbolios, situated at Guirdolim, in Salcete Taluka. The small agricultural house was built by the original plaintiff in the defendants'' property with the permission of the father of the defendant no.1 on the ground that he had no space for building anything in the narrow strip of land which was purchased by him. The order passed by the Mamlatdar u/s 145 of Criminal Procedure Code is fully justified and it only confirms the age old possession of the defendants, which the plaintiff tried to disturb. The drain has been in existence for more than 50 years within the property of the original defendants.

Upon appreciation of the evidence led by both the parties, both the Courts below came to the conclusion that the plaintiffs have failed to prove that the property purchased by the original plaintiff, vide Deed of Sale dated 16/6/1950 corresponds to the property shown in the croqui and bearing survey no. 75/1, 76/1 and 104 (western portion). It is mainly on this ground that the suit came to be dismissed.

It is the contention of Shri Sudin Usgaonkar, the learned counsel for the plaintiff, that the Courts below have committed an error by overlooking the public documents which were taken on record along with the sale deed as Exhibit P-1. The said documents are the land registration description document, the gift deeds and the order of the Executive Magistrate u/s 145 of Cr.P.C. In fact, as has been rightly contended by Shri Rao, the learned counsel for the defendants no. 3 to 5, there is nothing on record to show that these documents were also taken on record, exhibited and proved. Be that as it may, It is an admitted fact that the plaintiff is the owner of the property bearing land registration no. 16611, with boundaries stated in paragraph 1 of the plaint. Therefore, the documents of land registration and the gift deeds do not make any difference. The order u/s 145 of Cr.P.C. passed by the Executive Magistrate is admittedly in favour of the defendant No. 2. Hence, that order also will not assist the plaintiff.

It is another contention of Shri Usgaonkar, the learned counsel for the plaintiff, that the Courts below have misread the pleadings relating to the admission of construction of farm house and therefore overlooked that onus to prove that the plaintiff is not the owner shifted to the defendants in view of section 110 of the Evidence Act. According to Shri Rao, there is no such admission in the written statement. He is right. In this regard, the plaintiff has averred in paragraph 6 of the plaint that he built an agricultural house in the said property. In reply to the same, the defendants, in paragraph 3 of their written statement, have denied the contents of paragraph 6 of the plaint and have stated that the plaintiff has constructed a small agricultural house in the defendants'' property, with the permission of the father of the defendant no. 1, on the ground that they have no space for building anything in the narrow strip of land that has been purchased by him. Thus, there is no admission by the defendants that the said agricultural house (farm house) was constructed in the property purchased by the plaintiff from the father of the defendant no. 1. In fact, the pleadings of the defendants clearly reveal that the said agricultural house lies outside the property purchased by the original plaintiff. There is no specific pleading in the plaint that the said agricultural house lies in the said western portion of survey holding no. 104/0, not being paddy field. There is no pleading as well as evidence with regard to the extent of the property of the plaintiff and more particularly, with regard to that which falls in survey no. 104/0 which is the disputed portion. The defendants no. 3, 4 and 5 have purchased the property under survey nos. 104/0, 105/1 and 76/3 from the defendants no. 1 and 2 by sale deed dated 7/8/1987. There is no dispute regarding survey holdings no. 75/1 and 76/1. In his cross-examination, PW 1, the plaintiff has admitted that in the recent survey, the property in dispute has been shown in survey no. 75/1 of Guirdolim village. He has further admitted that the property which he had purchased from Silvestre D''Costa was shown in the recent survey no. 76/1. PW 1, in his entire deposition, does not speak about any portion of survey no. 104/0. PW 7, who is son of the plaintiff, has stated, in his cross examination, that he does not know the area of the land purchased by his father, even by approximation. Therefore his statement to the effect that about 8000-10000 square metres of the western portion of survey no. 104/0 and part of the survey no. 75/1 belonging to him have been wrongly shown in the survey record, has no substance. PW7 had marked the disputed portion during his testimony on the two plans which are at Exhibits PW7/B and D-1. There is no house or structure seen in the said portion marked with letters A, B, C and D by PW7. As argued by the learned counsel for the defendants, unless the plaintiff proves that his property bearing land registration no. 16611 has particular area and the same corresponds to survey no. 75/1, 76/1 and 104/0 (western portion, not being paddy field), the question of saying that there is farm house constructed by the plaintiff in this land and claiming benefit of section 110 of Evidence Act does not arise. There no dispute about the fact that the plaintiff is the owner of the property bearing land registration no. 16611 but there is no evidence that the same corresponds to the survey nos. 75/1, 76/1 and western portion of survey no. 104/0.

The croqui, marked "X" which has been referred to in the plaint has not been produced and proved. The deposition of the PW 1 reveals that the said croqui was drawn by one Vicente Correira Afonso. But said Vicente Correira(PW-3) has deposed that he has not drawn the said croqui. As per PW-1, what is sold to him by defendant''s father was only paddy field. However, the plaintiff claims the western portion of survey no. 104/0 which is not a paddy field. Admittedly, in the Form No. I & XIV of the survey no. 104/0, name of the plaintiff does not figure whereas his name figures in the survey record of survey no. 75/1 and 76/1.

The lower appellate Court has recorded the findings upon correct appreciation of the evidence on record, oral as well as documentary. There being no identification of the said property, no substantial questions arise for determination in the present appeal. I do not deem it necessary to deal with various authorities relied upon by both the parties. The findings of the lower appellate Court, in my opinion, cannot be termed as perverse warranting interference in second appeal. Hence, the appeal is dismissed, however, with no order as to costs.