1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.9 OF 2003 1. Shri Ankush Sadashiv Parab, 2. Shri Mohan Sadashiv Parab, 3. Shri Pandurang Sadashiv Parab, All major of age, residing at Madlo Waddo, Paliem, Pernem, Goa. …. Appellants V/s Shri Manohar Sajo Parab, major of age, residing at Madlo Waddo, Pernem, Goa. …. Respondent Shri J.P. Mulgaonkar, Advocate for the Appellants. Shri J.E. Coelho Pereira, Senior Advocate with Shri V. Korgaonkar, Advocate for the Respondent. CORAM : F.M. REIS, J. DATE : 16th SEPTEMBER, 2011 JUDGMENT: Heard Shri Mulgaonkar, the learned Counsel appearing for the appellants and Shri J.E. Coelho Pereira, the learned Senior Counsel appearing for the respondent. 2. The above appeal was admitted by this Court by order dated 18/07/2003 on the following substantial question of law: “On the facts and circumstances whether the Courts below were right in holding that the appellants had not proved their right to the property even inspite of the admission by the 2 respondent that he has1/4th right in Survey No.256/1 through his ancestor Kale Porob who is also the ancestor of the plaintiffs and the plaintiffs and defendant had ownership right in Survey No.256/2?” 3. Shri Mulgaonkar, the learned Counsel appearing for the appellants has pointed out that both the Courts below have failed to consider that DW1/respondent no.1 in the course of his cross-examination admitted that the suit property surveyed under no.256/1 was belonging to the common ancestors of the appellants and the respondent and this itself infers that the co-ownership right of the appellants has been duly established. The learned Counsel has taken me through the evidence of DW1 and pointed out that the said witness in his cross-examination had admitted that the property surveyed under no.256/1 and 256/2 belonged to common ancestor Shri Kale and, as such, considering that the appellants as well as respondent are descendants of the said common ancestor it should be inferred that the appellants also have a right to the suit property. The learned Counsel further pointed out that there is a categorical admission on the part of DW1 that the appellants have a right over the suit property. The learned Counsel further submitted that as the appellants are the co-owners of the suit property, the activity conducted by respondent by constructing a house in the 3 suit property without their consent is illegal and, as such, the suit construction deserves to be ordered to be demolished. The learned Counsel further pointed out that the consent obtained by the respondent/DW1 would not affect the rights of the appellants over the suit property as according to him no such NOC was obtained from the appellants. The learned Counsel further pointed out that the learned Judge has misappreciated the evidence on record by not considering the said aspects and came to a perverse finding of fact to the effect that the appellants have failed to establish right of co- ownership over the suit property. The learned Counsel further pointed out that considering the findings arrived at by the Courts below such findings will come in the way of the appellants in case any proceedings are initiated based on title in future against other co-owners and, as such, the impugned judgments deserve to be quashed and set aside. The learned Counsel further pointed out that as such the substantial question of law framed by this Court is to be answered in favour of the appellants. 4. Shri J.E. Coelho Pereira, the learned Senior Counsel appearing for the respondent disputed the contentions advanced by the Shri J.P. Mulgaonkar, the learned Counsel appearing for the 4 appellants. The learned Senior Counsel pointed out that it is well settled that it is for the plaintiff to establish his case and he cannot avail of any weakness in the defence to establish his claim of co- ownership or right to the suit property. The learned Counsel further pointed out that both the Courts below have appreciated the evidence on record and have come to the concurrent finding to the effect that the appellants have failed to establish any right over the suit property. The learned Senior Counsel pointed out that the contention of the appellants that there is an admission by the respondent of the right of the appellants in the property surveyed under no.256/1 is not at all correct as according to him the lower Appellate Court has considered the said aspect and has rightly come to the conclusion that it refers to the property surveyed under no.256/2 and does not refer to property under survey no.256/1. The learned Senior Counsel further pointed out that respondent has obtained an NOC from all co-holders shown in the survey records in respect of the property surveyed under no.256/1 and according to him the said property does not belong to the common ancestor as claimed by the appellants. The learned Senior Counsel further pointed out that the so called allegations by the appellants has not been established for the purpose of granting any injunction in 5 favour of the appellants. The learned Counsel further pointed out that this Court in deciding the Second Appeal under Section 100 of the Civil Procedure Code cannot reappreciate the evidence on record and in any event, the alleged admission relied upon by the respondent is sought to be curled out after reappreciating the evidence on record which is not permissible under Section 100 of the Civil Procedure Code. The learned Counsel further pointed out that there are no infirmities committed by the Courts below in deciding the matter in controversy and, as such, the above appeal deserves to be rejected. The learned Counsel appearing for the appellants submitted that any finding arrived at in a suit for injunction simpliciter would in any event not come in the way of the appellants in any proceedings initiated by the appellants based on title in case such issue of title has been decided incidently. 5. Having heard the learned Counsel and on perusal of the record, I find that the lower Appellate Court while appreciating the evidence on record as well as the so called admission relied upon by the appellants has come to the conclusion that the reference to such admission, if any, was with regard to property under survey no.256/2 and not 256/1 which is essentially the suit 6 property in the above suit. Shri Mulgaonkar, the learned Counsel appearing for the appellants wants to persuade this Court to reappreciate the evidence on record and consider the deposition of DW1 to ascertain as to whether such admission can be curled out from his deposition. It is well settled that this Court under Section 100 of the Civil Procedure Code cannot reappreciate the evidence on record unless perversity is shown in the findings of the facts. The learned Counsel appearing for the appellants was unable to point out any piece of evidence adduced by the appellants which has not been considered by the Courts below while appreciating the evidence on record. It cannot be said that the findings of fact arrived at by the Courts below are on the basis of no evidence or that any admissible evidence has not been considered by the Courts below while deciding the matter in controversy. The Courts below have categorically come to the conclusion that the appellants have failed to establish their right as well as their possession in the suit property where the disputed construction has been put up by the respondent. Apart from that there are concurrent findings of fact to the effect that the place where the construction has been put up has not been identified by the appellants in the course of their evidence before the learned trial Judge. Considering the said aspect and 7 taking note of the fact that there was an NOC granted by all the co-holders of the property surveyed under no.256/1, the Courts below have rightly come to the conclusion that the appellants have failed to establish that they are entitled for any injunction in their favour with regard to the suit construction. 6. On perusal of the deposition of DW1 which has been highlighted by the learned Counsel appearing for the appellants, I do not find any categorical admission on going through the whole deposition of DW1 that the appellants have a right in the suit property surveyed under no.256/1. Merely because DW1 admitted that they have a common ancestor by itself cannot suggest that the suit property was belonging to the common ancestor and, as such, property devolves in favour of appellants and respondent. Such exercise to establish the title would have to be done in an appropriate proceedings in case so advised by the appellants by adducing cogent evidence. 7. Considering the statement of both the learned Counsel it is well settled that merely because the suit for injunction simpliciter has been dismissed, it does not preclude the parties from initiating appropriate proceedings based on title. The 8 findings of title arrived at incidentally would not come in the way of a party to file appropriate proceedings based on title. The Apex Court in the judgment reported in 2004(1) S.C.C. 769 in the case of Rame Gowda v. M. Varadappa Naidu has held at paras 8 and 11 thus :- “8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has 9 dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. 11. In the present case the trial court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession, 10 protecting the established possession and restraining the attempted interference therewith. The trial court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.” In 2009 (10) S.C.C. 273 in the case of Ramchandra Dagdu Sonavane v/s Vithu Hira Mahar, the Apex Court has held at para 47 thus :- “47. The same view is reiterated in Gram Panchayat v. Ujagar Singh. This Court has stated that even in an earlier suit for injunction, if there is an incidental finding on title, the same will not be binding in the later suit or proceedings where title is directly in question, unless it is established that it was “necessary” in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was found or based on the bindings of title. Even the mere framing of an issue may not be sufficient as pointed out in that case.” 11 Considering the said judgments of the Apex Court, in case such proceedings are initiated by the appellants no doubt the respondent would be entitled to raise any objections to which he is entitled in accordance with law. But however it is always open to the Court to keep the issue of title open and dispose of the suit for injunction simpliciter. 8. As such keeping the issue of title of the parties open the substantial question of law framed by this Court is answered against the appellants. 9. Subject to above, I find no merit in the above appeal and the appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-