1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 291 OF 2002 1) Shri Balkrishna Shivram Naik Gaonkar, aged 44 years, landlord, married, and his wife, 2) Smt. Vijayabai B. Naik Gaonkar, Government Servant, aged 38 years, Both of them are the residents of Chaudi, Canacona – Goa. 3) Mr. Govind Mahableshwar Sinai Nagarsekar, P.W.D. Employee, aged 40 years, married, and his wife; 4) Mrs. Suchita Govind Sinai Nagarsekar, aged 31 years, housewife, Both of them are the residents of Chaudi, Canacona, Goa. …..... Appellants. V/s. 1) State of of Goa, represented by its Chief Secretary, Government of Goa, Secretariat, Panaji, Goa. 2) The State Director of Craftsman Training, Junta House, 1st Floor, Panaji, Goa. 3) Mr. Pramod Rama Naik Dessai, teacher, adult, resident of Ponsulem, Canacona, Goa. 2 4) Mrs. Sitabai Ram Naik Dessai, housewife, aged 55 years, resident of Ponsulem, Canacona – Goa. …...... Respondents. Mr. V. Parsekar, Advocate for the appellants. Mr. G. Shirodkar, Government Advocate for respondents No.1 and 2. None for respondents No.3 and 4. CORAM :- A.P. LAVANDE, J. Date :- 25th November, 2011 ORAL JUDGMENT : By this appeal, the appellants take exception to the judgment and decree dated 29th June, 2002, passed by the Civil Judge, Sr. Division, at Margao in Special Civil Suit No.39/1990/A, by which the suit filed by the appellants and respondents No.3 and 4 against the respondents No.1 and 2 has been dismissed. 2. The parties shall, hereinafter, be referred to as per their status before the trial Court. 3 3. The plaintiffs filed the above suit, seeking recovery of possession of land admeasuring 16,000 sq. metres forming part of survey No.287/2 of Nagorcem village of Canacona Taluka. The plaintiffs claimed ownership of the property “Sodentil” or “Ambeafondi” with boundaries mentioned in para 1 of the plaint. It was the case of the plaintiffs that the said property was surveyed under Survey Nos. 272/3, 273/1, 285/3, 287/1 and 287/2 of Nagorcem Village. It was further the case of the plaintiffs that a notice was served upon the defendants under Section 80 of C.P.C. and thereafter, the suit was filed. 4. The suit was contested by the defendants. It was the case of the defendants that the plaintiffs were not owners of the land and the property bearing Survey No.287/2 was belonging to the Communidade of Nagorcem-Palolem. 5. On the basis of the pleadings of the parties, the trial Court framed the following issues : “1. Whether the plaintiffs prove that they are the owners in possession of the land in question under Survey 4 No.287/2 ? 2. Whether the Defendants prove that the Communidade of Nagorcem, Palolem, are the owners in possession of the land in question ? 3. Whether the defendants prove that the plaintiffs have no locus standi to file the present suit and there is no cause of action for filing the present suit ? 6. In the suit, the plaintiffs examined three witnesses, namely Balkrishna Naik Gaonkar PW.1, Sakharam Bhende PW.2 (Government Registered Valuer) and Victor Gaonkar PW.3. No evidence was led on behalf of the defendants. The trial Court, upon appreciation of evidence led by the parties, answered issue No.1 in the negative and issues Nos. 2 and 3 also in the negative since the same were not pressed by the defendants. 7. The trial Court, upon appreciation of evidence held that the plaintiffs had failed to prove that survey No.287/2 in which construction of ITI building was carried out by the defendants, was part of the plaintiffs' property. The trial Court also considered the documents produced by the plaintiffs and held that the plaintiffs had not led cogent evidence to prove that property “Sodentil” or 5 “Ambeafondi” was surveyed under survey No. 287/2 and, as such, the plaintiffs had failed to prove that they are the owners in possession of survey No.287/2, on the basis of the documents produced on behalf of the plaintiffs. 8. Mr. Parsekar, learned Counsel for the plaintiffs submits that the plaintiffs had proved their title and the fact that they were in possession of the property bearing Survey No.287/2 which was part of the bigger property “Sodentil” or “Ambeafondi”. The learned Counsel further submitted that the defendants had not specifically denied the case set up by the plaintiffs in the plaint that the said property was surveyed under survey Nos. 272/3, 273/1, 285/3, 287/1, including survey No. 287/2 and, therefore, the trial Court has erred in dismissing the suit. The learned Counsel further submitted that the defendants had not proved that the land in which the construction was carried out of the ITI building was belonging to the Communidade and, as such, the trial Court ought to have decreed the suit. The learned Counsel further submitted that the trial Court ought not to have relied upon the judgment and decree passed by the trial Court in Civil Suit No. 23/87 filed by the plaintiffs against the Union of India and others, since the 6 judgment was not relevant under Sections 41 to 43 of the Evidence Act. Therefore, reliance upon the said judgment, holding that the plaintiffs are not owners of survey No.287/2 is patently unsustainable in law. According to the learned Counsel, the plaintiffs having proved their title to property bearing Survey No.287/2, the trial Court ought to have decreed the suit and, therefore, the appeal deserves to be allowed. In support of his contentions, Mr. Parsekar relied upon the following decisions : (1) Badat and Co. vs. East India Trading Co. (AIR 1964 SC 538); (2) S. Nagaraj vs. Kalluramma, (AIR 1996 Karnataka 125); (3) Pratibha Singh and another vs. Shanti Devi Prasad and another (2003) 2 SCC 330; (4) Ramesh Chand Ardawatiya vs. Anil Panjwani, (2003) 7 SCC 350; and (5) Niyamat Ali Molla vs. Sonargon Housing Cooperative Society Ltd., and ors., (2007) 13 SCC 421; 9. Per contra, Mr. Shirodkar, learned Government Advocate appearing for respondents No.1 and 2, supported the impugned 7 judgment and decree. 10. I have carefully considered the rival submissions, perused the record and the judgments relied upon. In view of the rival submissions, the following point arises for determination in the appeal : “Whether the trial Court has erred in dismissing the suit for recovery of possession filed by the plaintiffs/appellants against the defendants on the ground that the plaintiffs have not proved their title to the property bearing Survey No.287/2 ?” 11. As stated above, the case of the plaintiffs is that the property “Sodentil” or “Ambeafondi” is surveyed under survey Nos. 272/3, 273/1, 285/3, 287/1, and 287/2 and the defendants, without authority, trespassed into an area of 16,000 sq. metres of survey No.287/2 in the year 1986 and carried out construction of a building for I.T.I.. The plaintiffs have also relied upon notice dated 10.2.1987 issued, inter alia, to the Government of Goa, in which the plaintiffs had claimed that the defendants had encroached upon the suit property. In the said notice, the plaintiffs claimed mandatory injunction of demolition of the structure constructed in the property and in the alternative, claimed compensation in respect of the encroached land. 8 The suit came to be filed on 23rd January, 1990, seeking only recovery of possession of an area of 16,000 sq. metres. 12. The plaintiffs relied upon several documents to prove their title to the suit property and also placed reliance upon valuation report of Shri Sakharam Bhende who was also examined as a witness PW.2. The trial Court held that the plaintiffs had not proved that the property bearing Survey No.287/2 was part and parcel of the property “Sodentil” or “Ambeafondi” and consequently, had failed to prove that the defendants had carried out construction in their property. 13. Perusal of the judgment of the trial Court discloses that the trial Court has analysed critically the evidence led by the plaintiffs and has come to the conclusion that the plaintiffs had not proved that survey No.287/2 was part of bigger property “Sodentil” or “Ambeafondi”. Perusal of the evidence of PW.1 and that of PW.2 discloses that in their entire evidence nowhere they have stated the basis on which they claimed that the property bearing Survey No.287/2 forms part and parcel of the bigger property “Sodentil” or “Ambefondi”. Moreover, Sakharam Bhende, PW.2, in his cross 9 examination has clearly admitted that he had mentioned that the plaintiffs were owners of the property based on promulgated survey records and not on the basis of any other document. Since the defendants had taken a stand that the property in which the construction was carried out by them was belonging to the Communidade and they had carried out the construction pursuant to the no objection given by the Communidade, it was for the plaintiffs to prove their title to the property bearing Survey No.287/2 by leading cogent evidence. Merely stating that the plaintiffs have title to the property “Sodentil” or “Ambeafondi” would not be sufficient to get a decree against the defendants since, admittedly, the title documents did not mention survey numbers and obviously could not mention the same because the survey was effected somewhere in the year 1971 and the title documents were referable to period prior to that. It was for the plaintiffs to establish correlation between the title documents of the property “Sodentil” vis-a-vis property bearing Survey No.287/2. A bare statement by the plaintiffs that the property bearing Survey No.287/2 was part of bigger property “Sodentil” or “Ambeafondi” would not be sufficient to hold that the said property is part of the bigger property “Sodentil” or “Ambeafondi” more particularly having regard to the 10 defence taken by the defendants that the property bearing Survey No.287/2 was belonging to the Communidade and the defendants had carried out the construction pursuant to the no objection given by the Communidade. 14. There is one more aspect which disentitles the plaintiffs from getting the relief of recovery of possession. It is the case of the plaintiffs themselves that the defendants encroached in their property in the year 1986 and admittedly, the plaintiffs gave notice dated 10th February, 1987 to the defendants under Section 80 C.P.C. in which the plaintiffs claimed mandatory injunction for demolition of the structure and in the alternative claimed compensation. It was, therefore, necessary for the plaintiffs to approach the Court at the earliest and seek an appropriate relief. In so far as both the reliefs claimed in the notice are concerned, the period of limitation was 3 years and, as such, the cause of action, in respect of the reliefs having arisen in the year 1986, the suit filed in respect of these reliefs in the year 1999 would have been barred by limitation. Perhaps, that is the reason why instead of seeking these reliefs, the plaintiffs chose to seek recovery of possession for which the period of limitation in terms of 11 the Schedule to the Limitation Act is 12 years. The plaintiffs having permitted the defendants to construct the multistoreyed building in the property bearing Survey No.287/2, are not entitled to seek relief simpliciter of recovery of possession, without asking for demolition of the structure constructed therein, of which the plaintiffs had a notice. No doubt that Mr. Parsekar is justified in placing reliance upon Sections 41 to 43 of the Evidence Act and contending that the trial Court could not have placed reliance upon the judgment and decree in Civil Suit No. 23/87 filed by the plaintiffs in which the Civil Court had held that the plaintiffs had not proved their title in respect of the property bearing Survey No.287/2. Be that as it may, the plaintiffs, at this stage, in any case, are not entitled to the recovery of possession. The plaintiffs, for the reasons best known to them, have chosen not to ask for compensation. 15. In so far as the authorities cited by the Mr. Parsekar are concerned, in my considered opinion, none of these authorities advances the case of the plaintiffs. In the case of Badat and Co. (supra), the Apex Court has held that the denial must be specific and not vague or evasive. The proposition cannot be disputed. However, 12 in the present case, the issues have been framed on the basis of the pleadings and the plaintiffs were put to notice that the defendants were contesting the title of the plaintiffs in respect of survey No. 287/2. In Pratibha Singh and another (supra), the Apex Court has held that in case a map of the property is not filed and the defendant does not raise any objection, the trial Court must insist upon the plaintiff to file it. The authority obviously is not attracted to the present case inasmuch as in the present case the issue is as to whether the plaintiffs have title to survey No.287/2 and not regarding identification of the encroached portion of the land. In Niyamat Ali Molla (supra), it has been held by the Apex Court that the pleadings of the parties are to be read in their entirety and they must be construed liberally and not in a pedantic manner. The Apex Court further held that only because the JL numbers in the schedule were missing, the same could not be a ground to interfere with the impugned order. Obviously, the ratio of the said authority does not help the plaintiff. In the case of S. Nagaraj (supra), the Karnataka High Court held that if no issue is framed regarding identity of the suit land, no prejudice can be said to have been caused by misdescription 13 and as such, the decree cannot be said to be invalid. For the very same reason, the judgment does not advance the case of the plaintiffs. In the case of Ramesh Chand Ardawatiya (supra), in para 36 the Apex Court has held that a person in possession may not have title to the property yet, if he has been inducted into possession by the rightful owner and is in peaceful and settled possession of such property, he is entitled in law to protect the possession until dispossessed by due process of law by a person having a title better than what he has; a person in possession of the property cannot be forcibly dispossessed by another rank trespasser and even if the latter does so, the former may be entitled to restoration of possession because the law respects peaceful possession and frowns upon the person who takes the law in his own hands. In the present case, the plaintiffs have been non-suited for not establishing their title to survey No.287/2. The ratio of this judgment, therefore, is not attracted in the present case. 16. Upon reappreciation of the entire evidence, I am of the considered opinion that no fault can be found with the trial Court for dismissing the suit for recovery of possession filed by the plaintiffs. 14 17. In the result, therefore, the appeal stands dismissed, with no order as to costs. A.P. LAVANDE, J. ssm.