1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.3 OF 2009 1. Shri Manohar Ganesh Gaonkar, major of age, married, businessman. 2. Shri Eknath Manohar Gaonkar, son of Shri Manohar Ganesh Gaonkar, married, major of age, occupation-service. 3. Shri Dividas Manohar Gaonkar, son of Shri Manohar Ganesh Gaonkar, major of age, occuption-service. All Nos.(1) to (3) are residents of Bandoli, Kirlapal, Sanguem, Goa. … Appellants V/s Shri Anthony Mascarenhas, major of age, about 52 years old, son of late Minguel Mascarenhas, married, landlord, resident of House No.294, opposite Post Office Curchorem, Goa. … Respondent Mr. Sudin Usgaonkar, Advocate for the Appellants. Mr. M.S. Sonak, Advocate for the Respondent. CORAM : N.A. BRITTO J. DATE : 28th APRIL, 2010 ORDER: Heard. 2. This is defendants' Second Appeal arising from RCS No.28/2006. The dispute is regarding property surveyed under No.75/2 of Bandoli Village, Sanguem Taluka, admittedly recorded under the survey records in the name of Minguel Mascarenhas, the father of the plaintiff. The 2 plaintiff filed the suit for injunction simpliciter stating that the suit property was originally assigned by the Government in favour of Barkelo Devu Gaonkar, the ancestor of the defendants, but it was transferred on 8/12/1933 in favour of the father of the plaintiff, the said Minguel Mascarenhas and one Krishna Vithal Naik, after obtaining due permission of the Government on 28/11/1932 for the sum of Rs.100/- and that since then, the plaintiff along with the heirs of Krishna Vithal Naik were in possession of the same. The defendants, inter alia, contested the suit by pleading that the suit property which was assigned to Barkelo Devu Gaonkar by the Government could not have been transferred, and, although no provision of law was then indicated, Counsel on behalf of the defendants has referred to Section 34 of the Decree no.3602 dated 24/11/1917, which reads as follows; Section 34 – The duration of provisional assignments shall be of 10 years, during which the assignee cannot sell, mortgage or transfer by any way the property of the land that is assigned to him provisionally, which land, as a State (Government) property, cannot undergo any seizure, except that of the fruits harvested or to be plucked. 3. Shri Sudin Usgaonkar, the learned Counsel on behalf of the defendants, submits that the defendants having taken the said plea in terms of Section 34 of the Decree, that the suit property could not be transferred, the said plea, has not been answered by either of the Courts below, and this raises a substantial question of law, which is required to 3 be answered by this Court. 4. On the other hand, Shri Rao, the learned Counsel appearing on behalf of the respondent (original plaintiff) submits that the plaintiff's suit was based only on possession of the plaintiff and it was supported by an entry in the survey records which entry in terms of Section 105 of the learned Reference Court gave rise to a presumption in favour of the plaintiff. Learned Counsel further submits that the defendants had not filed any counter claim to declare them as owners of the property, the said transfer dated 18/12/1933 being ineffective. Learned Counsel further submits that there is no substantial question of law involved in this suit and therefore the appeal needs to be dismissed. Learned Counsel further submits that although the suit was initially decreed by the trial Court, the learned first appellate Court, after consideration of evidence produced, has reversed the dismissal and decreed the suit of the plaintiff. 5. As already stated, the plaintiff himself had pleaded that the plaintiff's predecessor i.e. Barkelo D. Gaokar had transferred the suit property to his father Minguel Mascarenhas and late Krishna Vithal Naik with the consent of the Government on 28/11/1922 and had also produced a record to that effect namely certificate of inscription. Thereafter, the suit property was recorded in the survey records in the 4 name of the plaintiff's father the said Minguel Mascarenhas and regarding this aspect the learned first appellate Court in para 22 of the judgment observed that the defendant no.1 had raised an objection against the entry of the names of Minguel Mascarenhas and Vithoo Krishna Naik in Form No. I & XIV and the said objection was turned down by the competent authority. The learned first appellate Court has also observed that the appeal preferred by defendant no.1 was also dismissed by Deputy Collector and these circumstances are pointer of fact that entry in the names of Minguel Mascarenhas and Vithoo Krishana Naik in survey records in respect of the suit property had attained finality. It appears that both the parties had led evidence to support their claims of possession, but the learned first appellate Court after assesssing the evidence produced and has come to the conclusion that it is the plaintiff who along with the legal representatives of Vithoo K. Naik, who were in possession of the suit property and that possession could even relate back to the days, when as per the deed dated 8/12/1933 the possession with the consent of the Government was transferred by the said Barkelo Devu Naik in favour of the plaintiff's father Minguel Mascarenhas and Vithoo K. Gaonkar. As far as Section 34 of the said Decree is concerned, in my opinion, the prohibition contained therein would be applicable only in a case where transfer is made without the consent of the Government. In the case at hand, presumably, the said Barkelo Devu Naik did not wish to continue with the lease given to him 5 by the Government and therefore he surrendered the lease which with the consent of Government was made in favour of the said Minguel and the said Naik. In such a situation, the prohibition contained in Section 34 of the Decree was clearly in applicable to Barkelo Devu Naik. In the light of that, I find that there is no merit in this appeal. Substantial question of law, if any, would stand answered. There is no merit in this appeal and consequently the same is hereby dismissed. N.A. BRITTO, J. NH/-