1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 59 OF 2008 1. Smt. Santana D'Silva, 64 years of age, widow of Shri Jose Francisco Espirito Santo Travasso, Agriculturist. 2. Shri Mileno George Travasso, 40 years of age, son of Shri Jose Francisco Espirito Santo Travasso, Agriculturist. 3. Smt. Natty Travasso, 29 years of age, wife of Shri Mileno George Travasso, Agriculturist. 4. Shri Issac Travasso,. 35 years of age, son of Shri Jose Francisco Espirito Santo Travasso, Agriculturist, and his wife. 5. Smt. Sampada Travasso, 32 years of age wife of Shri Issac Travasso, Agriculturist. All residents of House No.723/1 San Jose de Areal, Salcete, Goa. ... Appellants versus 1. Shri Eduardo Travasso about 69 years of age and his wife. 2 2. Smt. Santana Carvalho e Travasso, wife of Shri Eduardo Travasso about 59 years of age. 3. Shri Jose Travasso, s/o of Shri Eduardo Travasso about 40 years of age. 4. Smt. Luciana Travasso, wife of Shri Jose Travasso about 34 years of age. 5. Shri Raymond Travasso, s/o Shri Eduardo Travasso, about 36 years of age. 6. Shri John Travasso, s/o Shri Eduardo Travasso, About 38 years of age. 7. Shri Carlos Travasso, s/o Shri Eduardo Travasso, about 35 years of age. 8. Smt. Clara TrAvasso, d/o Shri Eduardo Travasso about 39 years of age, housewife. All residing at H.No. 723/2, San Jose de Areal, Salcete, Goa. ... Respondents Shri V. Menezes, Advocate for the Appellants. Shri Sudin Usgaonkar, Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 24TH JUNE, 2009. 3 ORAL ORDER This is plaintiffs second appeal arising from R.C.S. No. 69/2003. 2. The suit property surveyed under No.57/1 admeasuring 17,400 sq. meters belonged to Joaquim Godinho. Jose Francisco Espirito Santo Travasso and Edward Travasso are brothers. Plaintiff No.1 is the widow of the said Jose Francisco Travasso and the other plaintiffs belong to his immediate family. 3. The Plaintiffs filed the suit for injunction, pleading that the suit property was in their cultivatory possession. The suit was filed without disclosing that the defendants were related to the plaintiffs and/or were residing in the same house and even without disclosing that certain proceedings were filed before the Mamlatdar. 4. The defendants claimed that Defendant No.1 was a tenant of an area admeasuring 7540 sq. meters being the southern part of the said property. The defendants further pleaded that the suit property was divided into two halves, the northern half and the southern half and was separated by a stone “addo”. The defendants further pleaded that in the southern part they had constructed a well with laterite stones, without a parapet wall. They also pleaded that there was a water tank in the southern part which was provided with water supply line taken from the residence of defendant no.1 with PVC pipeline for drinking purpose 4 during the work of cultivation. The defendants further stated that defendant no.1 is the younger brother of the late husband of plaintiff no.1 and the father of plaintiff nos.2 and 4. The defendants had also pleaded that the deceased husband of plaintiff no.1 and defendant no.1 along with his family were residing under a common roof in the house bearing no.723 in Village Panchayat of St. Jose de Areal. The defendants also pleaded that after the death of the husband of Respondent No.1 in the year 1989 the suit property was mutually divided between the family of defendant no.1 and the family of the deceased brother i.e. the husband of plaintiff no.1 and father of plaintiff nos.2 to 4, and as such the southern part of the suit property admeasuring 7540 sq. meters was in possession of the defendants. 5. Both the parties led their evidence and after considering the same the learned trial Court by Judgment dated 30-6-2007 dismissed the suit of the plaintiffs entirely, though, after coming to the conclusion that the plaintiffs were enjoying the northern portion while the defendants were enjoying the southern portion. 6. The plaintiffs having filed an appeal the same came to be dismissed by the learned first appellate Court by Judgment dated 14-3-2008. The learned first appellate Court upheld the possession of the plaintiffs of the northern part of the suit property and the defendants to be in possession of the southern part, as 5 shown by the defendants Engineer Shri Krishna Prabhudessai, but granted no relief to the plaintiffs by way of injunction. 7. There is no dispute that the said Jose Francisco Espirito Travasso died in the year 1989. It appears that after his death some of the present plaintiffs filed an application against Jose Dias, the deceased son of Joaquim Godinho. 8. A statement is made that the said Joaquim Godinho had gifted the property to the said Jose Dias. The names in the cause title in the application filed before the Court of Mamlatdar itself shows that it was filed against a person who was dead. Nevertheless the Mamlatdar granted the application of plaintiff nos.1 and two others. An appeal having been filed before the Deputy Collector, the Deputy Collector by Order dated 19-6-2008 upheld the order of the Mamlatdar. Learned Counsel on behalf of the Respondents submits that a revision challenging the said Order dated 19-6-2008 of the Deputy Collector is pending before the Administrative Tribunal. 9. There is no dispute that defendant no.1 had filed a case before the A. K. Mamlatdar on or about 18-7-1974 to enter his name along with that of his said brother, in survey record in respect of the suit property. That application came to be rejected by Order dated 30-12-1976 for want of jurisdiction though the learned A. K. also made an observation that the defendant no.1 could not prove his possession. It appears that at that time the said Jose Nolasco Dias was present 6 before the A. K. Thereafter, the defendant no.1 made another effort by making an application on or about 22-5-1981 with the same relief and at this time defendant no.1's brother the said Jose Francisco was present before the A.K. but this application came to be rejected as res judicata. Prima facie, the order of the Mamlatdar dated 12-8-2002 in tenancy case filed by plaintiff no.1 and two others appears to be a nullity as it was filed against a dead person. Learned Counsel on behalf of the plaintiffs submits that the Courts below did not take into consideration the findings given by the Orders of the A.K. dated 30-12-1976 and 4-1-1983, first of which was passed for want of jurisdiction and the second, the issue having been become res judicata. 10. Plaintiffs suit was for injunction alone and the plaintiff was required to prove that he was in possession of the entire property as on the date of filing of the suit. The Order dated 30-12-1976 was an order given by a Court without jurisdiction and therefore the finding that Defendant No.1 could not prove his possession was of no significance. Moreover, that was before both the brothers made a division. The fact that both the brothers went together before the A.K. to get the name of Defendant No.1 included would show that they had made a division, and names of both therefore were required to be entered in the survey records. 11. The defendants had produced persons as their witnesses who were engaged in the construction of the water tank in the year 1994, the labourers who 7 had cultivated southern part of paddy field and these had clearly supported the case of the defendants that after the division the defendants were in possession of the said area of the southern side of the property. That is a conclusion which has been arrived at by both the Courts below on assessment of evidence. The plaintiff therefore could not have succeeded in obtaining any order of injunction against the defendants in respect of the southern area proved by them to be in their possession. 12. Learned Counsel on behalf of the defendants makes a statement that he has no intention of disturbing the possession of the plaintiffs as regards the northern part of survey number. In view of the said statement, which is accepted, nothing survives in this appeal. 13. Since both the Courts have rendered a finding that the southern portion is in possession of the defendants the plaintiffs could not have succeeded in the suit to obtain an injunction as regards the whole property. 14. Learned Counsel on behalf of the plaintiffs submits that as on today there would be contrary findings given by the Revenue Authorities as regards the possession of defendants. It may be so. However, the same will be taken care of by the learned Administrative Tribunal before whom a revision is pending. 15. In view of the above, there is no substantial question of law which 8 arises in this appeal. Hence the appeal is hereby dismissed. N. A. BRITTO, J. RD