AO.253-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 253 OF 2010 Mrs. Rosy Vaz .. Appellant Vs. Mr. Walter D’Souza & Ors. ..Respondents Mr. S. L. Prabhu, for the Appellant. Mr. A. J. Almedia, for Respondent Nos. 1 to 4. CORAM : R. C. CHAVAN, J. DATED : JULY 27, 2010. P.C. : 1. This appeal is directed against the order passed by the learned Judge, City Civil Court, Dindoshi, rejecting the Notice of Motion whereby the appellant sought an injunction to restrain the respondents/defendants from disturbing her possession. 2. It is the case of the appellant that the land originally belonged to one Alleck Comas Henriques who sold it to one Jabel Rodrigues in 1996 who in turn sold it to the appellant on 12th January, 2009, when said Rodrigues delivered possession by removing her hut AO.253-10 - 2 - over the property. It is also case of appellant that at that time i.e. at the time of delivery of possession there was obstruction by one Jeffry W. D’Souza who is defendant No.3. The plaintiff then filed a suit. 3. The defendants pointed out that Henriques could not have sold property to Rodrigues in 1996 since he had died on 24th May, 1940. The learned counsel for the respondents replies this by stating that it is for the defendant to prove said fact and it is not for him to even plead that Henriques who owned the property and transferred the property subsequently to Rodrigues, who was a person different than the one who died on 24th May, 1940, or that the person who died on 24th May, 1940 had nothing to do with the suit property. He submits that this is a matter of evidence. It is not clear as to how evidence could be tendered on a fact which is not pleaded. The defendants’ documentary title is not a negotiable instrument where title gets clearer as instrument passed from one hand to another. This is a case of transfer of immovable property, and, if at the inception, it is found that the vendor has no title, he cannot transfer anything to subsequent transferee. On the material which was before the trial Judge, he was not wrong in rejecting the Notice of Motion, since there was nothing with the appellant/plaintiff to show at AO.253-10 - 3 - that stage that Henriques who transferred the property to Rodrigues in 1996 was the owner of the property or transferor was a different person than the one who already died in 1940; and also that the person who died in 1940 had no title over the property. This goes to the root of the matter. Rejection of Notice of Motion would not preclude raising pleas and lead evidence to prove that plaintiff has title to the property. But till it is proved, she cannot restrain the defendants, who claim through defendant No.5 Cyril Henriques who claims to be one of the heirs of Henriques who died in 1940. 4. The learned counsel for the appellant pointed out that the probate of will of defendant No.5’s mother does not include the suit property. Therefore, the suit property may not have been owned by her husband. As rightly pointed out by the learned counsel for respondents, what is to be established is that defendant No.5’s father was not the one who owned the property which was transferred to the respondent. Absence of reference to the property in probate of will of defendant No. 5’s mother may be relevant but not conclusive of the issue. Appeal is therefore, dismissed. Sd/- [R. C. CHAVAN, J.]