1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.99 OF 2003 1. Shri Evencao Fernandes ( Since deceased ) Through his legal heirs. 1-a. Iren C. Fernandes, daughter, 1-b. Joao J. A. Fernandes, son, 1-c. Flavia R. Fernandes, daughter, 1-d. Valentino A. Fernandes, son, 1-f. Sharon I. Fernandes, son, All major, r/o. Bairo Bondir, St.Cruz, Ilhas,Goa. 1-e. Felizardo M. Fernandes, son, 1-g. Luisa Fernandes, daughter, 1-h. Livio F. G. D'Souza, son-in-law, 1-i. Ambrosio Velho, son-in-law, 1-j. Adrian Pinto, son-in-law. 2. Smt. Maria Oliveira Fernandes, Major, r/o. House No.56, Bairo Bondir, St. Cruz, Ilhas, Goa. 3. Maria Augusto Fernandes, major, 4. Smt. Bruna Fernandes, Both r/o. Bairo Bondir, St. Cruz, Ilhas, Goa. ... Appellant. V e r s u s 1. Smt. Devina Fernandes, 2. Shri Jorge Fernandes, 2 3. Smt. Nina Fernandes, 4. Smt. Artimecia Fernandes, 5. Shri Milton Fernandes, 6. Smt. Ivonne Fernandes, 7. Smt. Dorottey Fernandes, 8. Shri Christopher Fernandes, alias Chris Fernandes, All residents of Bairo Bondir, St. Cruz, Ilhas,Goa. ... Respondent. Mr. S. D. Lotlikar, Senior Advocate for the Appellants. Coram :- A. H. JOSHI, J. Date :- 27 th JULY, 2009. JUDGMENT 1. Heard learned Advocate Mr. S. D. Lotlikar, for the appellants. None appeared for the respondents. 2. Plaintiff's had filed this suit for partition with prayers as follows:- “(a) For a decree for partition separating the share to the plaintiffs in the suit property from that of the defendants, so as to enable them to hold the same as exclusive owners of the separated share; (b) For a permanent injunction restraining the defendants from doing any further construction activity in the suit property either by way of extension to the house in their occupation or any new construction in the suit property”. 3. The suit was contested by the defendants, by the averments contained in 3 para Nos.7 to 9 which read as follows:- “7. With respect to the contents of paras 6 and 7, the defendants state that the property in joint possession and enjoyment of the plaintiffs and defendants is indivisible, that is, cannot be divided in metes and bounds. The defendants vehemently deny that the defendants use the property in a manner prejudicial to the plaintiffs. 8. With respect to the contents of para 8, the defendants deny that the defendants have carried out unauthorised construction or that they have any intention to do any unauthorised construction. In fact the plaintiffs have explained the houses in their occupation. The defendants therefore state that the plaintiffs have approached this Hon'ble Court with unclean hands and suppressing material facts. The plaintiffs, are, therefore, not entitled to any injunction. 9. With respect to the contents of para 9, the defendants state that the property is indivisible and no decree partitioning the suit property by metes and bounds can be passed”. 4. In the additional written statement, what is pleaded quoted as follows:- “It is, therefore, denied that the Form I and XIV of Survey NO.582/7, which shows an area of 1269 square metres, is approximately the sum total of the two areas of the suit property. The defendants state that the additional purchased area is not clearly defined both in the documents and at site. 2. The defendants deny genuineness of the documents of purported purchase of the additional area of 148.80 square metres”. 5. The learned Trial Judge dismissed the suit by Judgment and Decree dated 19th November 2003. 4 6. As to Issues No. 4 and 5 which relate to the grounds of objections of defendants had pleaded that they have acquired title by prescription, whereas the defendants have failed to support their case, as they have not led any evidence. 7. On the Issue Nos. 1, 2, and 3, the learned Trial Judge held which reads as follows:- “What portion is acquired is not spelt out by the plaintiffs either in the pleading nor in the evidence. Therefore unless and until the exact area is stated by the plaintiff, it is difficult to ordered the partition of area in 1/3 edge. In order to get the decree of partition that to preliminary, the plaintiff has to be pleaded the exact area and where such an area cannot be partitioned among the parties. Admittedly, there are four structures in the survey No. 582/7. Out of these, structure “A” is a house stated to be possessed and enjoyed by plaintiffs 1 and 2. Structure 'B' is possessed and enjoyed by plaintiff 3, 4 and defendants and structure 'C' and 'D' are used as godown by using fire woods and other house hold items by plaintiffs 3 and 4 and other defendants”. 8. This findings quoted in the forgetting para which is underlined is challenged before this Court in present appeal. 9. Appellants have pointed out that the description of the suit property contained in the plaint is specific, and it has been specifically admitted by the defendants. 10. In this background according to learned Senior advocate Shri S. D. 5 Lotlikar, the findings recorded in the Trial Court that there was no proper description of the property is in-correct. 11. This Court has perused the contents of the plaint and the written statement. It is seen that the property has been described in paras 1 and 2 of the plaint. The description of property given in the plaint is no where disputed in the written statement. What has been disputed is plaintiffs' right to the suit property. This traverse too is not supported by any material whatsoever. 12. In this background, it was a case where plaintiffs' evidence had gone unchallenged. 13. The ground on which the suit has been dismissed is totally untenable. The judgment and decree under appeal therefore deserves to be reserved and is hereby setting aside, and plaintiffs Special Civil Suit No.124/1989/A is decreed in terms of prayers ( a ) to ( c ) thereof with costs, of suit and of this appeal. A. H. JOSHI, J. ah/-