-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 41 OF 2000 1. Shri Vincentinho Gomes 2. Smt. Graciana Gomes, (since deceased) through their legal representatives : a) Mrs. Veronica Sita Gomes, and her husband b) Mr. Luis Colaco c) Mrs. Dinora Fernandes Nee Dinora Gomes, and her husband d) Mr. Martin Fernandes All residents of H. No. 460/1, Curilo, Majorda, Salcete, Goa. 3. Shri Benedito Fernandes (since deceased), represented by his Legal Representatives, a) Mr. Raymond Fernandes, resident of Xeldem, Quepem, Goa. b) Mr. Nelson Fernandes c) Mr. Agnelo Fernandes d) Mrs. Marina Fernandes All three residents of Margao, Goa. e) Mr. Simon Da Costa f) Mrs. Pricilla Da Costs Both residents of Margao, Goa. g) Mrs. Rosie Fernandes h) Mrs. Diana Fernandes I) Mr. Richard Fernandes, All residents of Xeldem, St. Cruz, Quepem, Goa. 4. Smt. Antonieta Pereira, All resident of Santa-Cruz, Kakoda, Quepem, Goa. …... Appellants -2- V e r s u s M/s. Shree Mahadeo Devalya of Kakoda, by its attorney, Kakoda, Quepem, Goa. …... Respondent Mr. Sudin Usgaonkar, Advocate Advocate for the Appellants. Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the Respondent. CORAM: F. M. REIS, J. DATE : 25 th June, 2010. JUDGMENT The Second Appeal has been filed challenging the Judgment and Decree dated 05.02.2000, passed in Regular Civil Appeal No. 20/87 by the learned Addl. District Judge, Margao, dismissing the appeal challenging the Judgment and Decree dated 17.03.1987 by the Court of learned Civil Judge, Senior Division at Quepem. The Respondents who were the plaintiffs filed the suit claiming that they are the owners of a vast property known as “Bogor” consisting of different pieces of land having different names which have been bifurcated into two parts by the Quepem-Curchorem public road. It is further their contention that said part of the property which is located on the eastern side is not the subject matter of the suit while the other portion which is located towards the western side of the said road is the suit property which is known as “Colarjachem Bandul”, bounded towards the east by public road, towards the west by the property “Tariyaguddi” belonging to late Vicente Joao Figueiredo, towards the south the boundary line of Village Xeldem and -3- towards the north the boundary line of the property belonging to Bhangui and Vicente Joao Figueiredo. It is further their contention that the property consists of paddy field and open plot “Mordy” and is enrolled in the Land Revenue Office under matriz nos. 10, 11, 12 and 14 and that the portion of the property surveyed under nos. 11 and 12 is the suit portion lying towards the western side of the said road. It is further their contention that in the year 1913, one Shri Jose Caotano Gonsalves, secured an aforamento of the portion of the vacant land admeasuring an area of 21450 square metres of the land belonging to the Respondents for cultivation. The said portion consisted of three different plots of different sides, one lying towards the east of Quepem-Curchorem Road and the remaining two on the west thereof. It is further their case that they are in physical possession of the entire property “Bogor” excluding the said three plots which were allotted to said Gonsalves. The Respondents contend that the Appellants, who are the original defendants, somewhere in March 1969, started illegal construction of a structure in the vacant land of the Respondents which was in their possession. It is further their case that the Appellants also started digging a well near the said construction and, consequently, called upon the Appellants to demolish the said structure which they failed to do and that the original defendant nos. 3 and 4 who are the Appellants nos. 3 and 4 herein, sold some of the land to the original Appellant no.1 to defraud the rights of the Respondents over the suit property. As such, the suit was filed by the Respondents for a declaration, permanent injunction and other reliefs as stated in the plaint. -4- 2. The Appellants filed their written statements contending that the original Appellant nos. 1 and 2 purchased the property known as “Baltabogavoril”, situated at Cacora, from the original Appellant nos. 3 and 4 by Sale Deed dated 23.12.1968 and that they are constructing their house in their own property which was purchased by them. It is further their contention that the said property was acquired by the Appellant nos. 3 and 4 in view of the Gift dated 22.07.1943, which property was purchased by the donor from the erstwhile owner Shri Pascoal Lourenco Gonsalves and Laurina Almeida by Deed dated 30.07.1929. It is further their contention that the property is described in the Land Registration Officer under no. 19538, 19539 and 19540 since the year 1936 and, as such, as the period was more than 30 years since the registration itself establishes their claim to the suit property as the claim of the Respondent was time barred. It is further their contention that the house under construction is in the property registered under no. 19539 which is 4/6 of Segunda Adicao of the property registered under no. 18,119 (Baltabogavoril). As such, it is their contention that the Respondents were not entitled for any reliefs in the suit. 3. After framing the issues and recording of evidence, the learned Civil Judge, Senior Division, at Quepem, dismissed the suit by Judgment and Decree dated 10.12.1973. An Appeal was preferred by the Respondent being Civil Appeal no. 22/1974 before the learned District Judge and by Judgment and Decree dated 30.04.1977, the Appeal was allowed and the matter was remanded for appointment of a Commissioner to locate and identify the suit -5- property and the suit construction. Accordingly, a Commissioner from the Survey Department, was appointed who filed his report and the Appellants were given an opportunity to cross examine the Commissioner. 4. By Judgment and Decree dated 17.03.1987, the suit filed by Respondent was decreed and the reliefs sought by the Respondent were granted. 5. Being aggrieved by the said Judgment and Decree, an Appeal being Regular Civil Appeal no. 20/1987 was preferred before the learned District Judge. The Appeal filed by the Appellants was allowed by the learned District Judge remanding the matter to the Trial Court for framing an issue of adverse possession. An Appeal from Order filed by the Respondents challenging the Order dated 07.12.1988 was allowed by this Court on 13.02.1991. Thereafter, the Appeal preferred by the Appellants came to be dismissed by the learned District Judge by Judgment and Decree dated 05.02.2000. 6. Being aggrieved by the Judgment and Decree passed by the Courts below, the Appellants preferred the present Second Appeal. 7. The Second Appeal has been admitted on the following substantial questions of law. -6- i) The lower Courts committed illegality in not framing and deciding the issue of adverse possession and of limitation in view of pleadings in para !!!(d) of the written Statement ? ii) Whether the Appellate Court committed illegality by mistaking the Report of the Commissioner to read alongwith the oral evidence to establish possession, when the Report of Commissioner only located the disputed structure vis-a-vis the suit property and did not in any manner show any evidence of possession ? iii) Whether the Appellate Court overlooked that on discarding the affidavitary evidence of Narayan Bhat, there was virtually no direct evidence of possession led by the Respondents who were the Plaintiffs on whom the burden lay to prove possession and in view of direct oral evidence of possession led by the Appellants balance of preponderance of probability tilted in favour of the Appellants in view of evidence of possession by public documents from the year 1929 ? 8. Dealing with the first substantial question of law, Shri S. Usgaonkar, the learned Counsel appearing for the Appellants assailed the Judgment passed by the Courts below on the ground that as no issue with regard to adverse possession claimed by the Appellants had been framed by the Courts below, the impugned Judgments stand vitiated. He further submitted that there was ample evidence on record to come to the conclusion -7- that the Appellants were in possession of the suit property and, as such, the Appellants had perfected their title over the suit property by adverse possession. The learned Counsel took me through the written statements filed by the Appellants and contended that there were enough particulars therein to frame an issue on the claim of the Appellants of adverse possession. He further submitted that the suit property where the construction was being put up by the Appellants was belonging to them and, as such, the Respondent had failed to establish that they had any right to the suit property. He further submitted that the possession of the Appellants which was for the last over 30 years, deserves to be protected and, consequently, the impugned Judgments passed by the Courts below, deserve to be set aside. 9. Dealing with the next substantial question of law, Shri Usgaonkar, the learned Counsel for the Appellants submitted that the Commissioner's report could not be read in evidence to establish the possession of the Respondents. He further submitted that the Courts below were not justified to rely upon the Commissioner's report to come to a conclusion that the Appellants had no right at all to carry out the construction in the suit property. The learned Counsel went through the Commissioner's report and tried to contend that the Commissioner's report is not in conformity with the records produced before him and, as such, the question of relying upon such Commissioner's report does not arise at all. 10. Dealing with the third substantial question of law, Shri -8- Usgaonkar, the learned Counsel submitted that after discarding the affidavit of Narayan Bhat, there was no evidence on record to come to the conclusion that the Respondents were in possession of the suit property. The learned Counsel further submitted that there is no appropriate appreciation of evidence by the Courts below and as such the findings of possession arrived at by the Courts below are perverse. The learned Counsel as such submitted that as the Appellants were in possession of the suit property for the last over 30 years, they have acquired title to the suit property by adverse possession. 11. On the contrary, Shri S. D. Lotlikar, learned Senior Counsel, appearing for the Respondent, joined issue with the contentions raised by the learned Counsel for the Appellants. He submitted that the written statement filed by the Appellants does not furnish any particulars to frame any issue of adverse possession. The learned Counsel went through the written statements and demonstrated that there were no pleadings at all for the Courts below to frame any issue in that regard. He also submitted that when no particulars of the claim of adverse possession have been furnished by the Appellants, the question of framing any issue in that regard does not arise at all. He also submitted that whilst deciding the issue as to whether the claim of the Appellants was time barred, the purported claim of adverse possession came to be decided and rejected. He further submitted that, in any event, both the Courts below have come to the conclusion that the Respondents were in possession of the suit portion and, as such the question of claiming adverse possession on the part of the Appellants does not arise at all. He -9- further submitted that both the Courts had on minute examination of evidence come to the conclusion that the Respondents were in possession of the suit property and that the Appellants have not shown any perversity in such finding and as such the question of interfering with the concurrent finding of possession in favour of the Respondent in the present Appeal, does not arise at all. He further submitted that the Courts below have come to the conclusion that the interference of the Appellants was at the time when the illegal construction was started which forced the Respondents to file the suit and, consequently, the question of claiming adverse possession for the prescribed period does not arise at all. Dealing with the contentions of learned Counsel with regard to the other substantial questions framed by this Court, the learned Senior Counsel submitted that the law is well settled that the evidence of the Commissioner is to be also read in evidence whilst appreciating the evidence adduced by the parties. There is no illegality committed by the Courts below in relying upon the evidence of the Commissioner who was appointed at the instance of the Court and the Respondents were given ample opportunity to cross examine the said Commissioner. The learned Senior Counsel further submitted that the Courts below have relied upon the Commissioner's report along with the other evidence adduced by the Respondents and after appreciating the evidence in accordance with law, findings have been given to the effect that the Respondents were the owners in possession of the suit property. Such concurrent finding of fact cannot be interfered by this Court in a Second Appeal. The learned Senior Counsel further submitted that the Courts below have not relied upon the Commissioner's report to give a finding -10- of possession while, on the contrary, such findings have been arrived at after appreciation of the oral as well as documentary evidence adduced by the Respondents. As such, the learned Counsel submitted that the Appeal deserves to be dismissed. 12. In reply to the said submissions, Shri Usgaonkar, the learned Counsel appearing for the Appellants, submitted that the Apex Court in the Judgment reported in 2007 AIR SCW 1560 in the case of Des Raj & Ors. vs. Bhagat Ram (deceased by Lrs) & Ors., has held that Muffosil pleadings must be constituted liberally. He further submitted that the written statements filed by the Appellants deserve to be construed liberally and that there was ample of material to accept the claim of adverse possession put forth by the Appellants. 13. Dealing with the first substantial question of law framed by this Court, on perusal of the written statements, I find that the Appellants in the written statements have stated that the land where the construction is being done, belongs to the Appellant nos. 1 and 2 in view of the purchase which was executed in their favour by Deed dated 23.12.1968 by Appellant nos. 3 and 4. It is further contended that the Appellant nos. 3 and 4 had acquired the said property in view of Deed of Gift by Filomena Pereira Fernandes dated 22.07.1949. The said donor Filomena Fernandes purchased the entire land from Pascoal Laurence Gonsalves by Deed dated 30.07.1939. It is further their contention that the property came to be described in the Land -11- Registration Officer under nos. 19538, 19539 and 19540 since the year 16.02.1936 for over 32 years and the period itself is sufficient to perfect her title and as such all claims are time barred. On the basis of such pleadings, the learned Counsel for the Appellants contended that there was enough material to claim title to the suit property by adverse possession. 14. Considering the written statements filed by the Appellants, I find that the Appellants were claiming title unto themselves in the suit property. The Appellants never renounced their claim of title over the suit property. The Appellants also did not admit the title of the Respondents over the suit property. In (2009) 13 S.C.C. 229 in the case of L. N. Aswathama & anr. vs. P. Prakash, the Apex Court has held at para 17 thus : “17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true -12- owner, the period for prescription will not commence. (Vide P. Periasami v. P. Periathambi, Md. Mohammad Ali v. Jagdish Kalita and P. T. Munichikkanna Reddy v. Revamma).” 15. In view of the said Judgment of the Apex Court, it is obvious that considering the pleadings in the written statements, the plea based on title by adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. The Appellants have failed to plead any animus to possess the suit property hostile to the title of the true owner and, consequently, the period of prescription will not even commence. 16. In the Judgment passed by this Court in Second Appeal no. 22/1990, dated 20.08.1996, dealing with the claim of adverse possession, it has been held at paras 8 and 9 as follows : “8. To establish prescription, it is now well settled that the onus lies on the person pleading prescription, who must nor only specifically plead the ingredients of prescription but must prove that the party exercised such possession which possession was hostile to the right of the person claiming ownership. Shri Usgaonkar naturally relies on paragraph 9 of the pleadings to show that in paragraph 9 all the essential averments have been pleaded insofar as prescription is concerned. 9. I am, however, not impressed by the submission -13- of the learned Counsel. Pleadings have to be taken in their totality. If one goes through the plaint, in paragraph 2 the specific averment is that the property in which the house stands was Government land. In paragraph 8 this has been further elaborated that the land on which the house stands belongs to the Government and that the ancestors of the plaintiffs have occupied and appropriated the same, making therein the construction of the house and possessing it as their own. In paragraph 9 thereafter it is set out that the plaintiffs acquired ownership by prescriptive title, being in possession for over 30 years. The said pleadings are merely consequential to the earlier pleadings set out in paragraphs 2 and 8. If these pleadings are read together what emerges is, that, the case of the original plaintiffs was precisely that the plaintiffs claimed adverse possession insofar as the Government is concerned qua the property on which the house stood. It is true that the plaintiffs have nowhere admitted the title and/or possession of the land on which the house stood as belonging to the original defendants. But this by itself would not however be sufficient to arrive at the conclusion that even if the plaintiffs did not prove that the land belongs to the Government, the very fact that they had proved that the house belongs to them, the conclusion must follow that they have proved adverse possession against the defendants. As already pointed out nowhere in the plaint did the plaintiffs aver hostile title vis-a-vis the defendants. If this had been pleaded, then there ought to have been a specific issue based on which parties could have led evidence -14- and the issue could have been then decided.” 17. In the present case, on perusal of the written statement, the Appellants have failed to admit the title of the Respondent over the suit property. Apart from that, there are no averments in the written statement to the effect that the Appellants were possessing the suit property hostile to the true owner. As such, the question of claiming adverse possession does not arise at all. When no particulars were pleaded by the Appellants, the question of framing any issue to that effect does not arise at all. Apart from that, both the Courts below on minute consideration of evidence, have come to the conclusion that the suit property was in possession of the Respondent. It has been further held that this possession was with the Respondent up to the time when the Appellants tried to interfere with the suit property by putting up the construction therein. The findings on possession has been arrived at on the basis of the evidence of Pw.2, Pw.3 and Pw.4, who deposed that the place where the suit construction was being put up was cultivated by Narayan Bhat being a paddy field on behalf of the Respondent. Once it has been held that the Respondent was in possession of the suit property, the question of claiming adverse possession by he Appellants cannot arise at all. 18. In the Judgment of the Apex Court reported in (2001) 8 S.C.C. 584 in the case of Mohan Lal vs. Nihal Singh, the Apex Court has held that the question of possession of the suit land is essentially a question of fact and this question of fact cannot be interfered with in the Second Appeal under the provisions of Section 100 of the C.P.C. -15- 19. The Courts below have examined the oral as well as the documentary evidence produced by the Respondent and have given a concurrent finding that the Respondent was in possession of the suit property. This concurrent finding of fact cannot be interfered with by this Court in a Second Appeal. The learned Counsel for the Appellants has failed to demonstrate any perversity in such finding. 20. Dealing with the Judgment of the Apex Court relied upon by the learned Counsel for the Appellants in the case of Des Raj & Ors (supra), the same is not at all applicable to the facts of the present case. In the said Judgment, the possession of the Respondent therein was admitted and the only aspect to be considered in such circumstances were the effects of such possession. In the present case, there is no such admission while, on the contrary, the findings of the Courts below are that the Respondent was in possession of the suit property and there is no evidence at all to the contrary. 21. Adverse possession in one sense is based on a theory that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner through the hostile acts and claim of the person in possession. 22. On perusal of the written statements, I find that the Appellants have not pleaded adverse possession vis a vis the Respondents nor admitted -16- the title of the Respondents over the suit property. There are no pleadings that the true owner had abandoned their rights in favour of the Respondents by their hostile acts. After detailed analysis of the oral and documentary evidence, both the Courts below have held that the Respondents were the true owners in possession of the suit property and, as such, the question of the Appellants now claiming adverse possession over the suit property does not arise at all. The Appellants have failed to plead and prove animus possidendi. As no such pleadings are found in the written statement, the question of framing any issue on the plea of adverse possession does not arise at all. 23. The learned District Judge on the basis of the contentions of the Appellants, has framed the point for determination (e) as to whether the Appellants have proved that the donor Smt. Filomena Fernandes had perfected her title to the above land by registration since 26.02.1936 and hence the plaintiffs' claims are time barred. The learned Judge has come to the conclusion that on the basis and pleadings of the Appellants, the issue as to whether the Appellants have acquired prescriptive title to the suit land was not warranted. The learned Judge further held that there are no specific pleas in the written statements to substantiate such claim of prescriptive title