1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 72 OF 2008 Shri Shashikant R. Borkar, son of Mr. Rauji Borkar, major in age, married, residing at H. No.36, Gomeco Housing Co-op. Society, Bambolim, Goa. ... Appellant versus 1. Ram Takhu Gaude, son of Takhu Gaude, residing at H. No. not known, Ghadig Bhag, Navelim, Bicholim, Goa. 2. Smt. Ram Takhu Gaude, wife of Ram, Gaude, residing at H. No. no known, Ghadig Bhag, Navelim, Bicholim, Goa. ... Respondents Shri M. S. Usgaonkar, Senior Advocate with Shri I. Agha, Advocate for the Appellant. Shri R. G. Ramani, Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 1ST JULY, 2009. ORAL ORDER Heard. 2 2. This is plaintiff's second appeal and is arising from R.C.S. No. 45/1999. 3. The plaintiff has a property which as per the document of title is known as “Ghorbhat” and consists of coconut trees. The defendants also have a property known as “Gadi-Goracoddil” also known as “Novem Gorbatta” of coconut trees, arecanut trees, mango trees, jack fruit trees and other trees. The plaintiff's property was surveyed under Survey Nos.81/5 with houses in ruins identified by Survey Nos. 81/6, 81/7 and 81/8. The defendants property was surveyed under No.82/1 in the name of one Ramnath Shetye and the defendants have purchased it from him by sale deed dated 2-11-1992. As common knowledge goes this survey took place in early seventies. As per the sketch/plan produced by the plaintiff at Exh.F it could be said that the plaintiff's property is more or less located to the east of the defendants property. 4. Claiming that the plaintiff's property “Ghorbhat” was also known as 'Mestache Moloi or Toloi Ghorbhat Ferreiro' and part of it was erroneously included in Survey No. 82/1 but owned and possessed by the plaintiff, the plaintiff filed a suit on or about 27-7-1999 seeking declaration that the plaintiff was the owner in possession of the said property and permanent injunction and alternatively for recovery of possession of the said part of Survey No.82/1, outlined in red on the sketch. No area was mentioned. 3 5. The defendants resisted the suit claiming that the entire Survey No.82/1 belonged to the said Ramnath Shetye and after its purchase to the defendants. It was their case that the property purchased by them from the said Shetye is 'Gadi Garbat' or 'Ghadibhat' which admeasures 26150 sq. meters and having registration no. 603 and matriz no.116, and was surveyed under No.82/1. 6. The learned trial Court after considering the evidence produced on behalf of both the parties dismissed the suit filed by the plaintiff. In dismissing the suit, the learned trial Court accepted the defendants evidence that after the purchase of the property they had applied to the Deputy Collector for demarcation and re-fixation of boundaries and accordingly necessary orders were passed by the Deputy Collector after issuing notices to all adjoining owners, his property was demarcated. The learned trial Court came to the conclusion, based on the evidence and documents produced, that the suit property was purchased by the defendants and was of their ownership and possession. 7. The plaintiff preferred an appeal against the Judgment/Decree dated 13-11-2006 of the learned trial Court and the appeal also came to be dismissed. The first appellate Court in dismissing the appeal held that it was incumbent upon the plaintiff to prove that plaintiff's property described under No.240 and registered under No.1250 and known as 'Gorbhat' was also known as 'Mestachi Toloi' or 'Gorbhat Ferreiro'. The learned first appellate Court also observed that none of the documents produced by the plaintiff showed the area of the property 4 claimed by the plaintiff inasmuch as the plaintiff had also not mentioned what was the area which was claimed by the plaintiff in the plaint. It appears that only in the evidence the plaintiff had mentioned that the area which the plaintiff was claiming from Survey No.82/1 was 6437 sq. meters. The learned first appellate Court also noted that in the cross-examination the plaintiff had admitted that he did not know what was the total area of his property. As regards the boundary wall existing between the properties of the plaintiff and the defendants, the learned first appellate Court, first observed that the same was not in plaintiff's pleadings and moreover the plaintiff had not disputed that he was served with notice or fixation of boundary marks and in case there was really a dispute the plaintiff would certainly file his objection before the authorities, to rectify the boundary marks. The learned first appellate Court then held that the plaintiff was well aware about the proceedings of demarcation and re-fixation of boundary marks carried out at the instance of the defendants in the year 1994, after purchase of the property by deed dated 2-11-1992. 8. The learned first appellate Court also noted that the plaintiff had admitted that at the time of preparation of survey the name of Ramnath Shetye was recorded in respect of the property surveyed under No.82/1. It appears that after purchase by the defendants the property surveyed under No.82/1 they got their name included against Survey No.82/1 in the record of rights. The learned first appellate Court also noted that the plaintiff, although he claimed to be in possession of part of Survey No.82/1, outlined in red, the plaintiff admitted that 5 for the last two years the defendants were in possession of Survey No.82/1 and this evidence went to show that the claim of the plaintiff that the plaintiff or his predecessor was in possession of any part of Survey No.82/1 at any point of time was a falsity. The learned trial Court therefore proceeded to dismiss the appeal. As per title document of the plaintiff, the plaintiff's property has its northern boundary the coconut grove Salecodil or Mosson Gaudo whilst that of defendants the property Mestachi Moloi. 9. Shri M. S. Usgaonkar, learned Senior Counsel on behalf of the plaintiff submits that the defendants had admitted that the northern boundary of their property was 'Mestachi Moloi' and that of the plaintiff was 'Salecodil' and both the Courts below did not at all consider this aspect of the case. Learned Senior Counsel further submits that it is DW2/Mahadev Gaude who had admitted that the property of the plaintiff was also known as 'Mestache Bhat' and therefore the plaintiff had proved that the plaintiff's property was also known as 'Mestache Moloi' or 'Mestache Bhat'. Learned Senior Counsel further submits that the same witness had also considered that he knew that the property 'Mestache bhat' belonged to the plaintiff. Learned Senior Counsel further submits that the defendants had admitted that the northern boundary of the property of the plaintiff is 'Salecodil'. 10. It was not the case of the plaintiff at any time that their property was also known as 'Mestache Bhat' and no document was produced by the plaintiff to 6 show that his property was also known by two other names claimed by him. The Defendant/DW1 might have admitted that to the north of plaintiff's property there was property 'Salecodil' but that was of no assistance to establish the western boundary of the property of plaintiff. As already stated and as can be seen from Exh. F, the portion claimed by the plaintiff lies to west or south-west of the rest of the property claimed by the plaintiff and surveyed under Survey No.81/5. What was important for the plaintiff to prove what was property on the west of their property. Admittedly, defendants' property is one of the western boundaries of plaintiff's property, but not as per plaintiff's document. The plaintiff's title document shows that the western boundary of the plaintiff's property is Ponos Waddi. It does not show that the western boundary is also the property of the defendants. According to the plaintiff the property Ponos Waddi is surveyed under No.82/2 but the plaintiff did not examine the owner of the said property to confirm that the property surveyed under No.82/2 was Ponos Waddi. Learned Senior Counsel submits that the defendants also admitted that it was Ponos Waddi. In fact, there is no such admission, the defendants having stated that he could not say anything whether the property surveyed under No.82/2 is Ponos Waddi. However, the fact remains that the very sketch produced by the plaintiff shows that the entire property of the defendants throughout its eastern boundary had a stone wall and a stone wall is seen throughout the western boundary of the portion claimed by the plaintiff, and that too without any opening which only goes to show that the plaintiff always enjoyed their property up to the said wall and not beyond. Nobody erects walls to separate cashew from coconut groves. The 7 plaintiff had not convincingly shown that their western boundary existed beyond the said portion of the wall by showing that Survey No.82/2 was Ponos Waddi. Both the Courts below have come to the conclusion that plaintiff's property could not extend beyond the said wall which was again demarcated with notice to the plaintiff after the defendants purchased their property from the said Shetye. 11. Findings of the Courts below are concurrent, and are based on appreciation of evidence produced. In the light of the above, in my view, there is no substantial question of law involved in this Second Appeal and consequently the same is hereby dismissed, with costs throughout, in favour of defendants. N. A. BRITTO, J. RD