IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 75 OF 2007 SHRI. BHIKU BARKELO NAIK AND ANR., ... Appellants Versus SHRI. MANGUESHI JIVA SHET AND 3 ORS., ... Respondents Mr. Sudin M. S. Usgaonkar,Advocate for the Appellants. Mr. R.G.Ramani, Advocate for the Rspondents no.1, 2b to 2l and 3. Coram:- N. A. BRITTO, J. Date:- 30th July, 2008 P.C. This is defendants' Second Appeal arising from Regular Civil Suit No.41/1997. 2. Heard learned Counsels on behalf of both parties. Apparently survey No.12/2 of village Kalwado in Canacona Taluka is recorded in Form No.3 in the names of the defendants in the Survey Records. The plaintiffs filed the suit claiming to be the co-owners of the southern portion of the said survey number, identified by the plaintiffs, with boundaries mentioned in para 3 of the plaint and the suit came to be decreed against the defendants by the learned Trial Court by judgment/decree dated 27.2.2006. The defendants having filed an appeal to the District Court, the same came to be dismissed by Judgment dated 22.3.2007. The plaintiffs had claimed the said southern portion of Survey no.12/2 as a seperate property known as "Sordapal or Sodpod" having Land Registration No.5083 and Matriz nos.238 and 251. The defendants did not dispute the existence of the said property claimed by the plaintiffs and in fact the learned Trial Court after placing reliance on Jahuri Sah V/s D.P. jhunjhunwala (AIR 1967 SC 109) has come to the conclusion that the defendants had by implication admitted the existence of the said property claimed by the plaintiffs. 3. Shri Usgaonkar, the learned Counsel on behalf of the defendants/appellants submits that the entire property under Survey no.12/2 has been recorded in the Survey Records in the name of the defendants and in the absence of the identification of the property claimed by the plaintiffs, no injunction could have been granted against the defendants. Learned Counsel, further submits that it was for the plaintiff to have identified, the property claimed by them and the description and boundaries given in para 2 of the plaint was not sufficient for the Courts to have decreed the suit against the defendants. 4. A similar submission was made before the learned Trial Court and the same had been dealt by the learned Trial Court in paras 18 and 19 of the Judgment which read as follows: "Para 18: Plain reading of rule 3 of Order VII quoted on top one can gather that when subject matter of the suit is immovable property. Plaint shall contain description of the property sufficient to identify it by giving its boundaries or by giving its survey numbers in record of settlement of survey. In case in hand as rightly argued by learned Advocate Shri K.P. Dessai that plaintiff has given distinct boundaries of the suit property as well as its survey numbers. Not only that plaintiffs have even mentioned matriz and Land Registration number of the suit property in the plaint. This description, I am convinced is sufficient compliance of Rule 3 of order VII of Civil Procedure Code. Rule of pleadings contained in Civil Procedure Code nowhere mandate pleading of area to identify property. Hence, non-mention of area in plan or plaint is of no consequence. Moreover, though it is true as submitted by learned Advocate Shri Kamat that Pw 3 in his cross stated that he did not mention area of the suit property on plan however, he in his affidavit in evidence at Exhibit 44 clearly averred that the area of the suit property will be around 43162 sq. mtrs. Hence, Contention of learned Advocate that as expert failed to mention area of the suit property, there is no clear identify of the suit property and therefore suit deserves dismissal cannot be upheld. Para 19: I have perused evidence on record on identification. Pw 3 is expert witness. He had drawn plan showing the suit property same is at Exhibit 45. Besides, he also filed his affidavit in evidence at Exhibit 44. In para 3 of his affidavit in evidence testified that he had gone through the Land Registration survey No.5083, matriz survey Nos.238 and 251 of property SORDAPAL and found that the said property is included in survey 12/2 of village Canacona. He further testified that the portion incldued in survey No.12/2 has been demarcated by him on the plan and the same is admeasuring 431621462 sq. mtrs. Still further he specified distinct boundaries of the suit property incldued in survey No.12/2 as on east by property of Government, west by rubble stone addo beyond which is paddy field, north remaining portion of survey No.12/2 and south by national highway." 5. The plaintiffs having given the identity of their property claimed by them as a separate property in terms of boundaries in para 3 of the plaint and subsequently having confirmed the same through the evidence of Surveyor, Pw 3 who drew a Plan of the said property and stated that its area was about 43162 sq. mtrs., in terms of the boundaries mentioned by the plaintiffs, it could not lie now in the mouth of the defendants to say that the property claimed by the plaintiffs was not sufficiently identified or no injunction could be granted against the defendants. Both the Courts below have accepted the claim of the plaintiffs, on evidence led by both the parties, and have come to the conclusion that the plaintiffs were the co-owners in possession of the suit property claimed by the plaintiffs and forming part of the southern portion of Survey No.12/2 having boundaries as mentioned in para 3 of the plaint. These are concurrent findings of fact given by both the Courts below. Therefore there is no substantial question of law either as framed or otherwise involved in this second appeal which is hereby dismissed with costs by the defendants in favour of the plaintiffs, throughout. N. A. BRITTO, J. cg