-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 73 OF 2010 1. Antonio Santana Vaz, (Deceased), represented through his legal Heirs, a) John Francisco Vaz (Deleted as per Order dated 13.04.2004) b) Antonette Vaz c) Fatima Vaz d) Lucio V. Fernandes e) Florien Vaz f) Fortunato Fernandes g) Severina Vaz h) Ponciano Morais i) Jose Inacio Vaz (Deleted as per Order dt. 13.4.04) j) Veera Vaz k) Peter Santan Vaz l) Joana Vaz m) Prudencia Vaz n) Ana Maria Vaz All r/o. House no. 805, Sodoim, Verna, Salcete, Goa. …... Appellants V e r s u s 1. Shri Ernesto Caetano Lobo, (since deceased through Lrs) a) Shri Ivo Lobo s/o. Ernesto Caetano Lobo -2- aged about 21 years b) Shri Issac-E-Lobo s/o. Ernesto Caetano Lobo aged about 19 years c) Miss Swizel Lobo d/o. Ernesto Caetano Lobo aged about 17 years d) Miss Senia Lobo, d/o. Ernesto Caetano Lobo aged about 15 years 1(c) and 1(d) are duly represented by their mother the respondent no.2 hereinabove) (Amendment is carried out as per Order dated 02.05.11) 2. Smt. Maria Lobo, aged 28 years, housewife, r/o. House no. 802, Sodoim, Verna, Salcete, Goa. (Registered address) …... Respondents Mr. P. P. Singh, Advocate for the Appellants. Mr. Sudin Usgaonkar, Advocate for the Respondents. Coram :- F. M. REIS, J Date : 21 st November, 2011. ORAL JUDGMENT Heard Shri P. P. Singh, learned Counsel appearing for the Appellant and Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents. 2. The above Second Appeal challenges the Judgments passed by the Courts below whereby the suit filed by the Appellants for permanent injunction as well as for declaration came to be rejected. -3- 3. Briefly, it is the case of the Appellants that pursuant to an Agreement for Sale executed way back in the year 1977, the disputed portion admeasuring an area of 470 square metres, were agreed to be purchased by the Appellants from one Jose Furtado. It is further the case of the Petitioners that from the date of such Agreement for Sale, the Appellants were in possession of the said disputed portion of property. The Appellants have pleaded in the plaint that the said disputed portion of the property is surveyed under survey no. 189/1 and that the Appellants have purchased another property located on the southern side of survey no.189/2 from one Olivia Laura Menezes and others by Sale Deed dated 04.12.1979. It is further the case of the Appellants that in view of the interference by the Respondents in the said disputed portion, they were forced to file the suit for permanent injunction which thereafter came to be converted into also a suit for declaration of title. It is further the case of the Appellants that they are in adverse possession of the disputed portion and, as such, they have acquired right to the suit property by such adverse possession. 4. The Respondents have disputed the claim of the Appellants and pointed out that the property surveyed under no. 189/1 was purchased by the Respondents pursuant to a Sale Deed dated 25.03.1994 and in view of the said purchase, the Respondents have become the exclusive owners in possession of the property surveyed under no. 189/1. It is further their case that the rights of the Appellants are restricted to the property surveyed under no. 189/2 and that the Appellants have no right at all to any portion of the property surveyed under no. 189/1. It is further their case that the Appellants have no claims over the disputed -4- portion and, as such, the suit filed by the Appellants deserves to be rejected. 5. The learned Civil Judge, Junior Division, at Margao, by Judgment and Decree dated 21.08.2009 in Regular Civil Suit no. 239/1995, dismissed the suit filed by the Appellants. The learned Judge whilst appreciating the evidence on record has come to the conclusion that the Appellants have failed to prove that they are the exclusive owners in possession and enjoyment of the suit property since 19.07.1977. The learned Judge has further come to the conclusion that the Respondents were in possession of the disputed portion. Being aggrieved by the said Judgment and Decree, the Appellants preferred an Appeal before the learned District Judge being Regular Civil Appeal no. 109/2009, which by Judgment and Decree dated 28.04.2010, came to be dismissed. 6. Being aggrieved by the said Judgments passed by the two Courts below, the Appellants have preferred the present Second Appeal. 7. Shri P. P. Singh, the learned Counsel appearing for the Appellants has vehemently argued that the Courts below have come to a perverse finding of fact to the effect that the Appellants were not in possession of the disputed portion of the property. Learned Counsel further pointed out that the Courts below have failed to take note of the Agreement for Sale executed by Jose Furtado way back in the year 1977 which establishes that the possession of the disputed portion was handed over to the Appellants. The learned Counsel further pointed out that the Courts below have erroneously come to the conclusion that the Respondents are in possession of the disputed portion. The learned Counsel has taken me through the -5- impugned Judgments as well as the material on record and pointed out that the Courts below have arrived at a perverse finding of fact to the effect that the Appellants are not in possession of the suit property. The learned Counsel further pointed out that considering that the Appellants are in possession of the disputed portion since the year 1977, the Appellants have acquired title to the disputed portion by adverse possession. The learned Counsel as such submitted that there are substantial questions of law which arise in the present Appeal and, as such, the impugned Judgment deserves to be quashed and set aside and the suit filed by the Appellants deserves to be decreed. 8. On the other hand, Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents, has supported the impugned Judgments. The learned Counsel pointed out that since the time Sale Deed has been executed in the year 1994, the Respondents have been in possession of the suit property. It is further his contention that prior to the Sale Deed, his Predecessors in title were in possession of the suit property. The learned Counsel further submitted that though the property was purchased in the year 1994, the Respondents were enjoying the disputed portion even prior to the said Sale Deed with the consent of the original owners. The learned Counsel further pointed out that both the Courts below on the basis of the evidence on record and after appreciating the material adduced by both the parties, have concurrently held that the Respondents are in possession of the disputed portion. The learned Counsel as such submitted that such concurrent finding of fact cannot be agitated before this Court in a Second Appeal as no substantial question of law on that count arises in the present Appeal. The learned Counsel further pointed out that the alleged Agreement referred to by the -6- Appellants which they claim to have been executed in the year 1977, is not part of the exhibited document on record and, as such, the question of relying upon such documents in the Second Appeal does not arise at all. Learned Counsel further submitted that there is no substance in the Second Appeal and the same be dismissed. 9. Having heard the learned Counsel and on perusal of the record, there is no dispute that the claim of the Appellants to the disputed portion of the property is on the basis of the alleged Agreement executed in the year 1977. Admittedly, the said document has not been exhibited before the Courts below. Apart from that, no steps have been taken by the Appellants to adduce any evidence in support of their claim to establish the existence of such Agreement for Sale. Considering that the Courts below have concurrently come to the conclusion that the Appellants have failed to establish such Agreement for Sale in their favour, such findings of fact cannot be interfered in a Second Appeal under Section 100 of the Civil Procedure Code. No evidence has been adduced by the Appellant to prove the alleged agreement, nor the alleged seller or his legal representatives been made parties to the suit. Apart from that, the Appellants have also failed to establish that the said seller had any title to the disputed portion. 10. Dealing with the contention of the learned Counsel appearing for the Appellants to the effect that the Appellants are in possession of the suit property since the year 1977 and as such they have acquired title thereof by adverse possession, I find that in order to claim adverse possession, it is incumbent upon such person to admit the title of the true owner. In the present case, the Appellants -7- have not admitted the title of the Respondents nor have established that the alleged seller Jose Furtado had title to the suit portion and, as such, the question of claiming adverse possession as against the Respondents, does not arise at all. So also, the question of claiming any adverse possession against the said Jose Furtado also does not arise at all considering that he is not represented in the suit file by the Appellants nor his title to the suit portion has been established. 11. Apart from that, both the Courts below on the basis of appreciation of evidence on record, have concurrently come to the conclusion that the Appellants are not in possession of the disputed portion of the property. The findings on possession are essentially questions of fact. Such findings of fact cannot be interfered by this Court in a Second Appeal. It is well settled by the Apex Court that concurrent finding of fact cannot be interfered in a second Appeal unless perversity is found in such findings. Perversity can be assumed only in case there is misreading of evidence or any relevant document has been misconstrued or not considered whilst arriving at such findings. In the present case, the learned Counsel appearing for the Appellants, was unable to point out that there was any misreading of evidence on record nor that any admissible document has not been considered by the Courts below whilst arriving at such finding. Hence, the question of interference on such concurrent findings of fact of the Courts below, does not arise at all. Besides that, considering that the Respondents are held to be in possession of the property, the question of granting any permanent injunction or declaration as prayed for by the Appellants does not arise at all. A person who is not in possession cannot obtain a permanent injunction. -8- 12. Dealing with the contention of the learned Counsel appearing for the Appellants that the Agreement for Sale executed in the year 1977 ought to have been read in evidence by the Courts below as secondary evidence, I find that the Appellants have not even raised such contention before the Courts below. Unless and until such contentions were raised before the Courts below, the question of there being any substantial question of law on an issue which has not been raised before the Courts below does not arise at all. Considering the facts and circumstances of the case, the Appellants are not entitled to raise such contention before this Court. 13. In view of the above, I find no merit in the above Second Appeal and the same stands dismissed. F .M. REIS, J. arp/*