... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. SECOND APPEAL NO.60 OF 2007 1. Joao Antonio D'Silva P.O.Box 143 Eldoret, Kenya East Africa, through his Attorney Antonio Dias, resident of Nagoa, Verna, Salcete, Goa. 2. Smt. Alleluia Rosa D'Silva (now deceased) through her legal representative. 2.a. Tony D'Silva P.O. Box 143, Elderen, Kenya, East Africa. ... Appellants. v e r s u s 1. Clara Amelia Nunes e Fernandes (deceased) 1.a. Mr. Mozart Sebastian Fernandes 1.b. Mrs. Anne Fernandes 1.c.Miss Nancy Leopoldina Fernandes 2. Mr. Jerome Minguel Fernandes originally residents of Nagoa, Verna, Salcete Goa at present at Nairobi, Kenya, East Africa. ... Respondents. ... 2 ... Mr. M.B. D'Costa, Senior Advocate for the Appellants. Mr. C.Coutinho, Advocate for the Respondent no.1a to 1c and 2. CORAM: N. A. BRITTO, J. DATED: 23rd July, 2008. ORAL ORDER: This is a defendants' Second Appeal arising from Regular Civil Suit no.274/85/D. 2. The dispute between the parties, who are neighbours was essentially regarding property surveyed under no.52/10. The plaintiffs had claimed the same alongwith Survey no.52/11 (part) as their property 'Santubalem', second edition, while the defendants claimed the same as their property 'Santubalem', sixth adition. The property surveyed under no.52/11 stood in the survey records in the name of ... 3 ... the husband of the plaintiff and one Bernard Gonsalves and there is no dispute in relation to the same between the plaintiff and the said Gonsalves, and, in fact Learned Counsel appearing on behalf of the plaintiffs has submitted at the Bar the said Bernard has sold part of said survey number to the plaintiffs. 3. The plaintiffs had filed the suit for a declaration that they were the owners of the said property 'Santabollem', third adition, the same having been surveyed under nos.52/10 and 52/11 (part). Although the suit came to be dismissed by the Learned Trial Court, the suit came to be decreed by the Learned First Appellate Court by Judgment dated 17.3.2005. 4. Survey No.52/10 stands in between Survey no.52/9 and 52/11. The Learned First Appellate Court has held that the property under Survey no.52/9 is the property claimed by the defendants as ... 4 ... Santubalem, sixth adition, and the property Survey No.52/10 and Survey No.52/11(part) is the property claimed by the plaintiffs. 5. Learned Senior Counsel appearing on behalf of the defendants submits that the plaintiffs were not entitled for declaration because the plaintiffs had not identified the part of Survey no.52/11 which belonged to them. This submission cannot be accepted for the simple reason that there was never a dispute between the plaintiffs and the defendants in relation to Survey no.52/11 and there was no dispute between the plaintiffs and the said Bernardo Gonsalves as well in relation to the same. The said Bernardo, subsequently, has sold the said part of Survey no.52/11 to the plaintiffs. 6. Learned Senior Counsel on behalf of the defendants, has submitted that the suit for declaration filed by the plaintiffs on or above 21.12.1985 was clearly time barred as the defendants had a ... 5 ... dispute with the plaintiffs in regard to the property surveyed under no.52/10 in the year 1979 and therefore, the plaintiffs ought to have filed the Civil Suit within 3 years therefrom. 7. As regards this aspect, the Learned First Appellant Court has observed that Pw 1 did not depose the facts as to the cause of action having arisen in September, 1985, as pleaded. But in her cross examination a suggestion was put to her that the defendants had planted plants for fencing in the year 1979 and at that time there was a quarrel with the defendant, and Pw 1, had replied stating that she did not know about the same and at that time her husband was present. The Learned First Appellate Court observed that the evidence of alleged petty quarrel was not sufficient warning for the plaintiffs regarding the claim of ownership of the defendants. In my view this observation could not be faulted. Every neighbourly quarrel cannot give rise to cause of action to rush to the Court. The ... 6 ... Learned First Appellate Court also noted that the defendants had produced the Complaint addressed to the Police Inspector, Vasco-Da- Gama, dated 18.3.1975, but observed that there was no endorsement that the said Complaint was received at the Vasco Police Station nor any Police Officer was examined in support thereof which gave rise to an adverse interference to be drawn that no such Complaint was lodged. 8. The defendants had not at all taken the plea of limitation. The Learned Senior Counsel contends that the plea of limitation can be considered by the Court in the light of Section 3 of The Limitation Act, 1963. There can be no quarrel about the submissions. However, in the absence of a plea of limitation being set up by the defendants, the defendants having failed to prove the incident of 18.3.75, it was certainly not open to the Courts below to decide the plea of limitation only a bare statement that a quarrel had taken place in the year 1979. ... 7 ... It was not the case of the defendants that they had put a cloud on the title of the defendants in the year 1979, but it was their case that there was an interference on or about 18.3.1975, which incident the defendants had failed to prove. The plaintiffs had filed the suit pleading a cause of action having taken place after they obtained knowledge in September, 1985, that Survey no.52/10 stood recorded in the name of the defendants. The plaintiffs might have been in Goa when the Survey was conducted but from this fact it is impossible to conclude that they were aware that the Survey Records were prepared in the name of the defendants. Considering the facts of the case and in absence of any specific plea having been raised by the defendants, as regards limitation, the plea of limitation set up by them could not have been accepted. 9. The Learned First Appellate Court has considered all the aspects of the dispute between the parties and decreed the suit, and as ... 8 ... such, there is no substantial question of law which remains to be answered. 10. Consequently, I find there is no merit in this appeal and the same is hereby dismissed, with costs. N. A. BRITTO, J cg/- ... 9 ... N. A. BRITTO, J. cg/.