1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 52 OF 2009 1. Fidelis Pinto, daughter of late Mr. Frank Thomas Pinto, major in age, unmarried, resident of Malad, Bombay, for self and as attorney for the below mentioned appellants 2. Lucy Pinto alias Lucy Maureen Evet Pinto daughter of Mr. Frank Thomas Pinto, major in age, spinster, resident of Malad, Bombay. 3. Patricia Pinto alias Estelita Geneviva Pinto, daughter of late Mr. Frank Thomas Pinto, major in age, Spinster, resident of Malad, Bombay. 4. Abraham Pinto alias Abraham John Sabastiao Pinto, daughter of late Mr. Frank Thomas Pinto, major in age, Bachelor, resident of Malad, Bombay. ... Appellants versus 1. Mr. Delano Joseph Pinto son of late Mr. Wilfred Joseph Pinto, major in age, bachelor, service, residing at No.9, Belvedare Road, Mazgaon, Bombay. 2 2. Miss Maria Theodore Pinto Daughter of Wilfred Joseph Pinto, major in age, spinster, unemployed, residing at No.9, Belvedare Road, Mazgaon, Bombay. 3. Miss Corryne Pinto, daughter of late Mr.Wilfred Joseph Pinto, major in age, spinster, unemployed, residing at No.9, Belvedare Road, Mazgaon, Bombay. 4. Miss Muriel Pinto, Daughter of late Mr.Wilfred Joseph Pinto, major in age, spinster, unemployed, residing at No.9, Belvedare Road, Mazgaon, Bombay(deceased). 5. Augusto Fernandes(since deceased) through his legal representatives 5(a) Mrs. Annie Coelho Daughter of late Agusto Fernandes, Major in age, married, residing at H.No.7/24B, Cobrawaddo, Calangute, Bardez, Goa and her husband. 5(b)Mr. Edward Coelho, major in age, Residing at H.No.7/24B, Cobrawaddo, Calangute, Bardez, Goa. 6. Mrs. Augusto D'Souza, major in age, Residing at H.No.7/24B, Cobrawaddo, Calangute, Bardez, Goa. ... Respondents Shri M. B. D'Costa, Senior Advocate with Shri J. A. Lobo, Advocate for the Appellants. 3 Shri J. Godinho, Advocate for Respondent Nos.1 and 3. Shri V. A. Lawande, Advocate for Respondent No.5(a) and 5(b). CORAM : N. A. BRITTO, J. DATE : 31ST MARCH, 2010. ORAL ORDER This is a Second Appeal filed by the Plaintiffs arising from R.C.S. No.138/1993/C. 2. Heard the learned Senior Counsel on behalf of Plaintiffs and learned Counsel on behalf of the Defendants. The dispute between the Plaintiffs and the Defendants is as regards a property surveyed under No.229/33 corresponding to cadastral survey no.1292. Presently the said survey no.229/33 is recorded in the name of Ruth Fernandes who is none other than Defendant No.6, consequent to a deed of gift made in her favour on 14-3-1991 by Wilfred Pinto, the father of Defendant Nos.1, 2 and 3. 3. On the cadastral survey records the suit property stood in the name of Martinho Pinto and this has been recorded by the learned trial Court in para 30 of the Judgment and by the learned first appellate Court in para 13 4 of the Judgment, and this on the basis of an admission made by PW1/Fidelis Pinto. 4. The suit was filed claiming co-ownership of the suit property along with the Defendants contending that the same belongs to the common ancestors of the Plaintiffs and the Defendants, namely Domingos Gregorio and Micaela Pinto. Domingos Gregorio Pinto is the grandfather of the Plaintiffs. The great, grandfather of the said Domingos Gregorio Pinto also had the same name. 5. However, it may be noted that the suit property was claimed by the Plaintiffs, they being successors of Antonio Francisco Pinto married to Rita Felicidade Fernandes. 6. The Defendants claim to the suit property is based through their grandfather the said Martinho Pinto @ Floriano Martinho Pinto whose one of the sons was Wilfred and who is stated to be the father of Defendant Nos.1 to 3. 7. The learned trial Court in dealing with Issue No.1 observed, and in my view rightly, that the Plaintiffs(PW1) did not know how his grandfather Domingos G. Pinto acquired title to the suit property. If that was so, Plaintiffs 5 could not reasonably say that the property belonged to both the branches of the family i.e. the grandfather of the Plaintiffs(Domingos G. Pinto) and grandfather of Defendants(Floriano Martinho Pinto). The learned trial Court further held that on going through the documents it was seen that the grandfather of Defendant Nos.1 to 4 was not the ancestor of the Plaintiffs as the name of the grandfather of the Plaintiffs was Shri Domingos Pinto, and as such the family of the Plaintiffs and that of the Defendants came from different family branches. The learned first appellate Court in answering the first point framed by it came to the conclusion that the Plaintiffs were not entitled to the suit property as they were not co-heirs of a common ancestor. On behalf of the Defendants reliance is placed on Narendra Gopal Vidyarthi v. Rajat Vidyarthi((2009) 3 SCC 287) to contend that whether a property is joint is a question of fact and not a substantial question of law. 8. However, the learned Senior Counsel on behalf of the Appellants/Plaintiffs submitted that the Defendants had not specifically denied the averments of para 2 of the plaint where the Plaintiffs had stated that the the Plaintiffs and Defendant Nos.1 to 4 were the joint successors of their great grandparents Antonio Francisco Pinto, married to Rita Felicidade Fernandes and their parents Domingos and Micaela Pinto. Learned Senior Counsel further submits that the Defendants had accepted the compromise in the earlier suit, namely Civil Suit No.90/01/A in relation to survey no.214/12 of 6 Calangute Village that the property was a common property of their ancestors. Learned Senior Counsel has placed reliance on Badat and Co. v. East India Trading Co.(AIR 1964 SC 538) to contend that evasive or vague denials of facts in a written statement can be taken to have been admitted. Reliance is also placed on Jahuri Sah and others v. Dwarika Prasad Jhunjhuwala and others(AIR 1967 SC 109) to contend that if an allegation of fact in the plaint is not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, it shall be taken to be admitted. 9. The compromise terms in Civil Suit No.90/91/A in respect of survey no.214/12 of Calangute Village have not been placed for the perusal of the Court. Under what circumstances the said compromise was entered into has been explained by the Defendants in para 12 of the written statement. Only because common ownership was accepted in respect of Survey No.214/12 does not mean that it had to be accepted in respect of suit property surveyed under No.229/33. As regards to so-called admissions they have been dealt with by the learned first appellate Court in para 9 of the Judgment observing that the written statements of Defendant Nos.1 and 2 had to be read in its entirety and from the reading of the same it could be seen that the Defendants had denied the Plaintiffs relationship to the common ancestors. In fact, the Defendants had clearly stated that it is the said Floriano Martinho Pinto who had put Defendant No.5 in possession of the suit property and it 7 was further stated that after the death of the said Floriano Martinho Pinto or Martinho Pinto the said property was inherited by Wilfred Pinto and then by the Defendant Nos.1 to 4 till it was gifted to the wife of Defendant No.5, namely Defendant No.6. The Defendants had also clearly stated that the Plaintiffs had no right to the suit property and moreover the Plaintiffs were put to strict proof of the facts stated by the Plaintiffs in para 1 of the plaint which the Plaintiffs failed to prove, as held by both the Courts below. 10. There is absolutely no merit in this Second Appeal. Both the Courts below have given concurrent findings that the Plaintiffs have failed to establish the case pleaded by them, namely that the suit property was inherited by the Plaintiffs as well as by the Defendants through their common ancestors either through Domingos Gregorio Pinto and his wife Micaela Pinto or Antonio F. Pinto married to Rita Fernandes. 11. Consequently, the Second Appeal is hereby dismissed with costs. N. A. BRITTO, J. RD