-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 17 OF 2010 1. Shri Vassudeva Krisnanath Naik, (deceased) through his Legal Representatives (a) Surendranath Vassudev Naik and his wife; (b) Madhavi Surendranath Naik both residing at H. N.128, Fonvem, Ribandar, Tiswadi, Goa. (c) Malati Vassudeva A. Naik and her husband (d) Shri Vassudeva A. Naik Both residing at H. N. 128, Fonvem, Ribandar, Tiswadi, Goa. (e) Vijalaxmi Vassudeva Krisnanath Naik, residing at H. N.128, Fonvem, Ribandar, Tiswadi, Goa. 2. Mrs. Madhuri S. Kambli and her husband 3. Sachin B. Kambli, both residing at Haware's Green Park, A-4/306, 3rd Floor, Plot no. 15, Section 22, behind M. G. M. Hospital, J.N.P.T. Road, Navi Mumbai. ….... Appellants V e r s u s 1. Shri Ravindra Vassant Sinai Quencro residing at Taun waddo, Near Dhungat House, Verem, Bardez, Goa, (deceased) Through legal representatives (a) Smt Sharmila Ravindra Kenkre (b) Kum. Vansh Ravindra Kenkre, (Resp. 1(b) through guardian ad-litem Resp.(a) Both residing at Ribandar-Goa. …... Respondents SA-17-10 -2- Mr. M. B. D' Costa, Senior Advocate with Ms. K. Divgekar, Advocate for the Appellant. Mr. R. G. Ramani, Advocate for Respondent no.1. Coram :- F. M. REIS, J Date : 23 rd November, 2011. ORAL JUDGMENT Heard Shri D' Costa, learned Senior Counsel appearing for the Appellant and Shri R. G. Ramani, Advocate appearing for the Respondent no.1. 2. The above Appeal challenges the Judgment passed by the Courts below whereby the suit filed by the Appellant for declaration of title and injunction came to be dismissed. 3. Shri D' Costa, learned Senior Counsel appearing for the Appellant, has essentially assailed the findings arrived at by the Courts below on the ground that it was the case of the Appellants that they had acquired right to the suit property by prescription. Learned Senior Counsel further pointed out that the father of the Appellant had entered into an Agreement for Sale way back in the year 1984 in respect of the suit property and that the Sale Deed had not been executed until the death of the father of the Appellant and which has created a right on the Appellants by prescription. Learned Senior Counsel further pointed out that the Lower Appellate Court has not at all appreciated the evidence on record in respect SA-17-10 -3- of the claim of the Appellants and has come to an erroneous conclusion that the Appellants have failed to establish their claim of prescription. Learned Senior Counsel has taken me through the impugned judgment as well as the pleadings in the plaint and pointed out that there are sufficient pleadings in the plaint to claim the said right of prescription over the suit property. The learned Senior Counsel as such submitted that the impugned Judgment cannot be sustained and deserves to be quashed and set aside. 4. On the other hand, Shri R. G. Ramani, learned Counsel, has taken me through the Judgments passed by the Courts below and has pointed out that the Courts below on the basis of the material on record have come to the conclusion that the Appellants have failed to establish that they were in possession of the suit property. He further pointed out that merely on the basis of the Agreement of Sale, the Appellants cannot claim the right of prescription over the suit property and that the grievances raised by the Appellants are purely questions of fact which cannot be interfered by this Court in a Second Appeal. Learned Counsel further submitted that no substantial question of law arises in the present Appeal which calls for adjudication by this Court under Section 100 of the Civil Procedure Code. 5. Having heard the learned Counsel and on going through the record, I find that on perusal of the issues framed by the learned Trial Judge, no issue was framed as to whether the Appellants had acquired right to the suit property by prescription. Apart from that, the fact that no such issue was framed, was not even SA-17-10 -4- raised before the Lower Appellate Court. Though there are averments in the plaint to the effect that the Appellants were in continuous and peaceful possession of the suit property for a period of thirty years, nevertheless, the Courts below have found that no evidence has been adduced by the Appellants to substantiate their claim of possession over the suit property. On perusal of the plaint, I find that there are no particulars disclosed by the Appellants to establish their claim of prescriptive to title over the suit property. There are no pleadings to meet the requirements of Article 510 of the Portuguese Civil Code nor any evidence to meet the ingredients as contemplated therein considering that the claim of the Appellants to the suit property is on the basis of an Agreement for sale. Both the Courts below have concurrently come to the conclusion that the Appellants are not in possession of any portion of the suit property. Once such findings have been arrived at by the fact finding Court on the basis of the material on record, this Court is not in a position to consider such claim of the Appellants. Admittedly, even on the perusal of record, I find that there is no evidence on record adduced by the Appellants to substantiate their claim of possession. Learned Senior Counsel was unable to point out any piece of evidence nor considered by the Courts below whilst holding that the Appellants are not in possession of the suit property. Once the possession of the suit property has not been established, the question of claiming any right of prescription over the suit property by the Appellants cannot arise at all. Considering that the Courts below have concurrently held that the Appellants have failed to establish their claim over the suit property, I find that no substantial question of law arises in the present Appeal to be decided under Section 100 of the Civil Procedure Code. The Courts below have rightly appreciated the evidence on SA-17-10 -5- record and rejected the claim of the Appellants in the suit. Hence, there is no merit in the Appeal and the same stands dismissed accordingly. F .M. REIS, J. arp/* SA-17-10