1 IN THE HIGH COURT OF BOMBAY AT GOA Second Appeal no.64 of 2010 1. Joaquim Xavier Fernandes (since deceased) Through his legal heirs 1(a) Carlos Fernandes son of Joaquim Fernandes, 2. Mariazinha Fernandes, Wife of Joaquim Xavier Fernandes, House wife, major in age, Resident of Dongrim. 3. Pedro Fernandes, Seaman, major in age, Resident of Dongrim. 4. Candida da Silva, Housewife, major in age, Resident of Dongrim, All residing at H.No.548, Dongrim, Mandur, Tiswadi – Goa. ..... Appellants V e r s u s 1. Maria Carmina Coutinho (Deceased) 2. Isidoro Luciano Fernandes (deceased through their legal heirs) 3. Maria Isabela Fernandes, 4. Smt. Joanita Ferrao, Age 63 years. 5. Smt. Francisca Fernandes, Age 24 years, Daughter of Isidore Luciano Fernandes, Age 27 years. 6. Bruno Dias, Age 26 years, Husband of Smt. Francisca Fernandes, 7. Lizette Fernandes, Daughter of Isidore Luciano Fernandes, 8. Henry Pereira, 2 Husband of Lizzette Fernandes, Age 26 years, All residing at Mansherwado, Mandur, Tiswadi, Goa. 9. Suzan Fernandes, Daughter of Shri Cosme Rodrigues, Resident of Mollar, Khorlim, Tiswadi – Goa. ..... Respondents. Shri S.D. Lotlikar, Senior Advocate with Ms. G. Xettigar, Advocate for the Appellants. Shri M.B. Da Costa, Senior Advocate with Mr. J.A. Lobo, Advocate for the Respondents nos.3 to 8. Coram: F. M. Reis, J Date: 13th August, 2010. ORAL ORDER: The appellants and respondent no.9 are the original defendants. The Respondents nos.1 to 8 are the original plaintiffs. The respondent nos. 1 to 8 filed a suit against the defendants seeking eviction of the appellants and respondent no.9 from the property registered under no.2400. It was the case of the respondents that the appellants were staying in a small house on licence basis and that they did not want the appellants to reside therein and, as such, upon failure to vacate on receipt of a notice, the suit was filed to leave the property and remove the structure. The defendants in their written statement contented that they were 3 the mundkars residing in the suit property and that they were staying in the suit house for more than sixty years and hence they could not be evicted from the suit house by the respondents. The appellants also claimed that they were in adverse possession of the suit property. The plaint was amended to include 2 more prayers, namely to delete the names of appellant no. 1 & 3 from the survey records and for an order to restrain the appellant no.3 and 4 from interfering with the said property surveyed under survey no.16/2 of village Mandur. In view of the plea of the defendants that they were the mundkars of the suit house, the issue was referred to the Mamlatdar who answered the same in favour of the appellants against which the respondents preferred an appeal before the Collector and by order dated 30.7.1984, the Collector set aside the order of the learned Mamlatdar and declared that the appellants were not the mundkars of the suit house. Thereafter, a Revision preferred before the Administrative Tribunal by the Appellants came to be dismissed. The Appellants nos. 3 and 4 after the said order dated 30/7/1984 was passed by the Collector vacated the suit house and started residing in House No.532 at Manshewada, Mandur at different location. 2. The learned Civil Judge Senior Division at Panaji after 4 framing the issues and recording of evidence decreed the suit filed by the respondents. The learned Judge held that the appellants were mere licencees of the suit house and further held that since the appellants had not vacated the suit house despite of the notice of termination of the licence their continuation in the suit house is illegal. The learned Judge further held that the names of the appellants no.1 and 3 were wrongly recorded in the Record of Rights, as they had no semblance of right to the suit property. The claim of the appellants that they were in possession of the suit property for more than 60 years by adverse possession came to be rejected. The learned Judge found that there was no material on record to substantiate the claim of adverse possession by the appellants. The learned Judge further held that after scrutinizing the testimony of the witnesses of the appellants found that there was no evidence brought on record to comply with the guidelines laid down by the Apex Court to prove the claim of adverse possession. The learned Judge, as such, found that there was no evidence brought on record by the appellants to the effect that they were residing in the suit property for more than 60 years, as claimed by them by adverse possession. Accordingly, the suit filed by the respondents no.1 to 8 came to be decreed. 5 3. An appeal came to be filed by the Appellants before the learned District Judge being Regular Civil Appeal No.58 of 2009. By judgment dated 30/10/2009, the learned District Judge-2,Panaji dismissed the appeal filed by the appellants. The learned Judge found that the issue referred to the Mamlatdar was finally decided in favour of the respondents and the claim of the appellants that they were the mundkars of th suit house came to be rejected. The said order was upheld even by this Court. 4. With regard to the claim of the appellants that they were in adverse possession of the suit house and the suit property, the learned District Judge on appreciating the evidence on record came to the conclusion that the appellants have failed to prove that they were the mundkars and that they were in adverse possession of the suit property. The learned Judge further held that the status of the appellants is that of a trespasser and, as such, they were not entitled to continue to occupy the suit house. Consequently, the appeal came to be dismissed. 5. Being aggrieved by the said Judgments, the present second appeal has been preferred by the appellants. The learned Senior Counsel appearing for the Appellants has submitted that the Courts below have erroneously come to the conclusion that the 6 appellants have failed to establish that they were in adverse possession of the suit property. He further submitted that even a trespasser can be a mundkar and consequently merely because appellants have put up a claim of mundkarship, it does not imply that the claim of adverse possession cannot be sustained. He further submitted that the appellants were in possession of the suit property for the last more than 60 years and, as such, their possession is to be protected. 6. On th other hand the learned Senior Counsel appearing for the respondents has supported the impugned judgments. He submitted that once the claim of the appellants that they are mundkars of the suit property has been rejected, they are not entitled to continue to occupy the suit house. He further submitted that once the licence to occupy the house was terminated by the respondents, any subsequent occupation of the suit house would be that of a trespasser and, as such, the appellants are liable to be evicted from the suit house/property. He further submitted that both the Courts below have concurrently held that the appellants are no in adverse possession of the suit property and, as such, no substantial question of law arises in the present appeal. 7. After hearing both the learned senior counsel for the 7 parties and on perusal of the record, I find that in the written statement filed by the appellants, there are no particulars about the claim of adverse possession, as sought to be advanced by the appellants. There is no pleading about any hostile possession which is a pre-requisite to claim adverse possession. The appellants have not adduced any evidence in that direction. The contention of the learned counsel for the appellants that even a trespasser can be a mundkar deserves to be rejected. A mundkar pre-supposes that he has occupied a dwelling house with th consent of the Bhatkar/owner. As such, it cannot be said that even a trespasser can be a mundkar of the dwelling house in any way. Both the Courts below have on the basis of concurrent findings of facts that the appellants have failed to establish that they have acquired title to the suit property by adverse possession. The learned Senior Counsel was unable to point out that there is any perversity in the said concurrent findings of fact arrived at by the Courts below. There is no material on record to substantiate the claim of the appellants of adverse possession. This Court in a second appeal under section 100 of the Civil Procedure Code cannot re-appreciate the evidence nor interfere in the said concurrent finding of fact, unless perversity is shown in the given 8 finding. In the present case there is no perversity in the findings arrived at by the courts below. Once the plea of the appellants that they were mundkars of the suit house has been rejected, the appellants are not entitled to continue in the occupation of the suit house. In view of the above, I find that there is no substantial question of law which arises in the present appeal. Hence, the appeal stands dismissed. F. M. Reis, J Ap/-