:1: IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 37 OF 2002 1. Shri Baboi Babu Gauns Dessai, Major of age, married, agriculturist, r/o Voiamol, Xeldem, Taluka Quepem Goa. ( Since deceased ) now represented by his L. Rs 1(a) Balu Baboy Gauns Dessai, (son ) 1(b) Smt. Gotombu Balu Gauns Desai, ( daughter-in-law) 1(c) Shri Shivaji Baboy Gauns Dessai, ( son ) 1(d) Smt. Shubhangui Shivaji Gauns Dessai, ( daughter-in-law ) 1(e) Shri Rama Ayer, ( son-in-law ) 1(f) Smt. Kaleeka Rama Ayer, ( daughter ) 1(g) Smt. Nirmal alias Sheutu Shashikant Bikrem Dessai, (daughter ) 1(h) Jeevanand Shashikant Dessai, (grandson) 1(i) Sushant alias Sandeep Dessai, ( grandson) Legal representatives 1(a) to 1(f) residents of Xeldem, Quepem, Legal representatives 1(g) to 1(i) Residents of Bekreawado, Canacona. …. Appellants V e r s u s 1. Shri Mahadev Shambu Raut Dessai, major, married, landlord, r/o P.O. Chandor, Assolda, Quepem Goa. :2: 2. Shri Datta Barkelo Gauns Dessai major, agriculturist, r/o Voiamol, Xeldem, Taluka Quepem Goa. … Respondents Shri S. D. Lotlikar, Senior Advocate with Mr. K. Surjuse, Advocate for the appellant. Shri Pulkit Bandodkar, Advocate for respondent no.1. CORAM : F. M. REIS, J DATE : 5 th SEPTEMBER, 2011 . ORAL JUDGMENT The above appeal challenges the judgment and decree dated 15.12.2001 passed by the learned Additional District Judge, South Goa, Margao, in Regular Civil Appeal No. 34/1994. 2. Briefly the facts of the case are that the respondent no.1 filed the suit on the ground that he and his brothers are the owners of half of the property known as “ Vonvem Molavoril Gorbata” situated at Xeldem Village of Qupem Taluka, and that the other half of the property belongs to the heirs of late Venku Govind Gauns Dessai and others. It is further their case that the said property is :3: described as a whole in the Land Registration Office under No. 20205 and is enrolled in Taluka Revenue Office under Matriz No. 274. It is further the case of the respondents that half portion is originally belonged to Kusta Balu Gauns and that his father had purchased the said half portion in the Court auction and that thereafter his father was in possession of the said portion of the property. It is further their case that said half portion is now surveyed under survey Nos. 259 sub- divisions 2, 7, 10, 20, 21, 24, 28 and 30. According to the respondent, his father was in possession of the said portion of the property since the time of the auction in the year 1944 up to his death in the year 1980 and upon his death the respondent and his brothers were in possession of the said portion of the property. The grievance of the respondent is that the appellants started interfering with the possession of the respondent claiming that the respondent has no right to any portion of the suit property. Apprehending that the appellants may interfere with their possession, the respondent filed the suit for permanent injunction restraining the appellants, their family members, relatives, agents and servants etc., from interfering with the cultivation and disturbing the possession of the respondent over the said portion of the property. :4: 3. The case of the appellants in short is that they disputed the right of the respondent and his brothers over the suit portion of the property. It is further their case that the appellant no.1 was in possession of the suit portion of the property since the time of his ancestors and that the portion of the property purchased by the respondent is surveyed under No. 259/2. It is further their case that the remaining sub-divisions of the said property are in exclusive ownership and possession of the appellants and as such prayed that the suit be dismissed. 4. After recording of evidence and hearing the parties, the learned Trial Judge came to the conclusion that the property purchased by the father of the respondent was a compact property and is consists of different portions as sought to be claimed by the respondent. It was further held that the property was common and this fact suggest that the respondent did not have exclusive possession of the said property. Consequently, the suit came to be dismissed by judgment and decree dated 28.04.1994. 5. Being aggrieved by the said judgment, respondent preferred an appeal before the learned District Judge being :5: Regular Civil appeal No. 34/1994. By judgment and decree dated 15.12.2001, the learned Additional District Judge after hearing the parties and considering the material on record allowed the appeal preferred by the respondent and set aside the judgment passed by the learned Trial Judge and granted the injunction as prayed for by the respondent. 6. Being aggrieved by the said judgment, the appellants have preferred the present appeal. The above appeal came to be admitted on the following substantial questions of law :- 1. Whether in the absence of any indication in the title documents about the extent and the location of the property, being half of the property known as 'Vonvem Molavoril Garbhat' bearing land registration No. 20205; and in the absence of any evidence to establish that the sub- divisions lying in between, the learned appellate Court was justified in concluding that the respondent no.1 had established himself to be the owner of survey No. 259/2, 7, 10, 20, 21, 24, 28 and 30 which :6: were admittedly in contiguous to each other ? 2. Whether the impugned judgment and decree is vitiated as it proceeds on a wrong assumption viz. that the appellants have not disputed that the property purchased by the respondent no.1's father was surveyed under No. 259/2, 7, 10, 20, 21, 24, 28 and 30 and that, therefore, there was no dispute regarding identity of the suit property ? 3. Whether in the absence of any documents certifying that pursuant to the purchase in Court auction, the Respondent No.1's father was put in possession of various portions of land which the respondent no.1 now claims to be surveyed under No. 259/2, 7, 10, 20, 24, 28 and 30, the respondent no.1 could claim either to be owner or to be in possession of the said portion of land by virtue of the Court auction ? :7: 7. Shri S. D. Lotlikar, learned Senior Counsel appearing for the appellants has assailed the impugned judgment and pointed out that there is no evidence on record adduced by the respondents to the effect that the suit portions claimed by the respondents were in exclusive possession of the said respondents. As such the question of granting injunction as prayed for by the respondents would not arise. The learned Counsel further pointed out that there is no evidence adduced by the respondents to establish that the sub-divisions of the suit property claimed by the respondents were referable to the portion of the property purchased by the father of the respondents. The learned Counsel further submitted that there is ample evidence on record to substantiate the claim of the appellants that besides some of the sub-divisions claimed by the respondents were in possession of the appellants. The learned Counsel further submitted that there is no evidence on record to substantiate the claim of the respondents that half portion of the property was clearly determined and as such the question of granting any injunction would not arise at all. 8. On the other hand, Shri P. Bandodkar, learned Counsel appearing for the respondents has supported the :8: impugned judgment. The learned Counsel for the respondents has pointed out that the learned Appellate Court has rightly appreciated the evidence on record and has come to the conclusion that the portion of the property purchased by the father of the respondent has been clearly identified. The learned Counsel further submitted that there is ample evidence on record to establish by way of evidence adduced by the respondents that the suit portion of the property was in their possession. The learned Counsel further submitted that there is no perversity of any kind pointed out by the appellants to show that such findings can be interfered in a Second Appeal. The learned Counsel further submitted that considering the findings of the Appellate Court, the substantial question of law framed by this Court cannot be looked into as it would imply reappreciating the evidence adduced by the parties which is not permissible in Second Appeal. 9. Whilst passing the impugned judgment, the learned First Appellate Court has found that there is no dispute that the property “Vonvem Molavoril Gorbata” was originally owned by late Kusta Balu Gauns and the father of the appellant no.1. The auction certificate which has been produced at Exhibit PW1/A indicates that the father of the :9: respondent had purchased the said property in the Court auction in the year 1944. Apart from that, there is no dispute that half portion of the said property was purchased by the father of said respondent. The other half was stated to be belonged to Venku Govind Gauns Dessai. The learned Judge has further noted that the case of the respondent was that two portions are distinct and enjoyed separately by the said Venku Govind Gauns Dessai and Kusta Balu Gauns and that on account of their respective shares they were enjoying the specific portion of the said property. The case of the respondent was that the father of the respondent stepped into the shoes of the father of appellant no.1 in view of the purchase in the said Court auction. The learned Judge has also noted that as far as identity of the property is concerned, on perusal of the written statement there was no substantial dispute with regard to such identity to the effect that the said half portion did not correspondence to the said survey number namely survey No.259 sub-divisions 2, 7, 10, 20, 21, 24 and 30. The claim of the appellant no.1 to the effect that the respondent was in possession of only the portion of survey no.259/2 and not remaining survey numbers which has been rejected. The learned Judge has also found that in the survey records, the name of father of the respondent figures in the :10: occupant column. The learned Judge on appreciating the evidence on record has also come to the conclusion that the respondent was in possession of the suit portion of the property. 10. Considering the said findings of the Lower Appellate Court and on perusal of the material on record especially the purchase carried out in the Court auction, the findings of the learned Judge that half portion of the property was purchased by the father of the respondent no.1, cannot be faulted. The other half of the said property belonged to Venku Govind Gauns Dessai. The property was also partitioned in distinct portions namely the half which originally belonged to late Custam Balu Gaunco and the other half belonged to the heirs of Venku Govind Gaunco and others. On perusal of the plaint filed by the respondents at para 4 thereof, there is a specific averment that half of the property purchased corresponds to the property surveyed under no. 259 sub-divisions 2, 7, 10, 20, 21, 24, 28 and 30. Whilst dealing with the said contents in the written statement, the appellants did not dispute the identity of the said half of the property as corresponding to the said survey numbers but only restricted their defence to contend that pursuant to the :11: auction, the respondents had come in possession of only half portion of the property surveyed under no. 259/2 and that the remaining sub-divisions were in possession of the original defendant no.1. Hence, the Lower Appellate Court was justified to hold that there was no dispute raised by the appellants with regard to the identity of the property. The contention of the appellants that they were in possession of the remaining sub-divisions of the said property, has been rightly rejected by the Lower Appellate Court on the basis of the appreciation of the evidence on record. Apart from that, the Survey Records in respect of all the Survey numbers stand in the name of the respondents and, consequently, a presumption is drawn in their favour with regard to their possession. This presumption has not been rebutted by the appellants by any material on record. Hence, the Lower Appellate Court was justified to come to the conclusion that the appellants have failed to establish their right of ownership and possession over the suit property. On the basis of appreciating the evidence on record, the Lower Appellate Court came to the conclusion that the respondents have established their ownership and possession over the suit property. :12: 11. Shri Lotlikar, learned Senior Counsel appearing for the appellants was unable to point out any piece of evidence which has not been considered by the Lower Appellate Court whilst arriving at such conclusions. In fact, the learned Trial Judge whilst disposing of the suit had erroneously come to the conclusion that the Appellants were co-owners of the suit property. This finding was totally contrary to the evidence as well as the pleadings of the appellants on record. Hence, I find that the Lower Appellate Court was justified to come to the conclusion that as the father of the respondents had already purchased the property registered in the Land Registration Office under no. 20205, the question of alleging that some of the survey numbers which correspond to the property as described in the Land Registration Office, would continue to belong to the appellants herein would not arise at all. The Lower Appellate Court has also noted the admission of DW.1 in his cross examination that the father of the respondent no.1 had purchased the property “Vonvem Molavoril Gorbata” and that he was in possession thereof which itself would disclose that there was no question of the appellants enjoying or owning any such portion of the said property. :13: 12. Considering the material on record, I find that though the extent of property is not mentioned in the title documents, nevertheless, on the basis of the oral and documentary evidence on record and considering the pleadings of the parties, the Lower Appellate Court was justified to come to the conclusion that the respondent no.1 had established that he was the owner of the property of survey nos. 259/2, 7, 10, 20, 21, 24, 28 and 30. The Lower Appellate Court did not proceed in the wrong assumption with regard to the identity of the property as the admission of the witnesses of the appellants recorded by the Lower Appellate Court as well as the pleadings and the documents on record establish that the property purchased by the father of the respondent no. 1 in the Court auction corresponds to all the aforesaid survey numbers. The fact that the father of the respondent no.1 was put in possession pursuant to the Court auction, has not been disputed by the appellants in their written statement but, however, the only dispute raised by the appellants was that the father of the respondent no.1 was handed over possession of only the portion of the property surveyed under no. 259/2 and not the remaining sub- divisions. But, however, for the reasons stated herein above, there is no infirmity committed by the Lower Appellate Court :14: to come to the conclusion that pursuant to the Court auction, the father of the respondent no.1 was in possession of not only of the portion surveyed under no. 259/2 but all the remaining sub-divisions. In fact, the Lower Appellate Court on appreciation of evidence has come to the conclusion that the respondents were in possession of all the sub-divisions which questions of facts cannot be interfered with the present Second Appeal. All the substantial questions of law are answered accordingly. 13. In view of the above, I find no merit in the above Second Appeal and the same stands accordingly dismissed. F. M. REIS, J at*