-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.19 OF 2007 WITH SECOND APPEAL NO.20 OF 2007 AND SECOND APPEAL NO.68 OF 2007 SECOND APPEAL NO.19 OF 2007 1. Shri Conceicao Quadros alias Conceicao Dias age about 50 years of age, occupation agriculturist. (since deceased): 1a) Shri Issac Quadros son of late Conceicao Quadros aged 39 years. 1b) Smt. Flavia Vales wife of Shri Issac Quadros aged 31 years. Both residing at H. Ho.334, Manora Raia, Salcete, Goa. 1c) Shri Raul Quadros, son of late Conceicao Quadros aged 34 years. 1d) Smt Agnes Fernandes, wife of Raul Quadros aged 26 years. Both residing at H. Ho.334, Manora Raia, Salcete, Goa. 1e) Smt. Maria Magdalina Borges, daughter of late Conceicao Quadros, aged 42 years. 1f) Shri Antonio Rosario Quadros husband of Maria Magdalina Borges aged 51 years Both residing at H. No.119, Second Appeals No. 19, 20 & 68/2007 -2- Near Carmal College, Nuvem, Covalem, Salcete, Goa. 2. Smt. Roza Souza wife of Appellant No.1, age about 42 years, occupation agriculturist Both residents of H. No. Manora, Raia, Salcete, Goa. …... Appellants/ Original Defendants V e r s u s Shri Salvador Quadros, major of age, occupation retired Government Servant, residing at 90-A, Govind Nagar, Malad, Mumbai - 64 …... Respondent/ Original Plaintiff WITH SECOND APPEAL NO.20 OF 2007 1. Shri Conceicao Quadros alias Conceicao Dias age about 50 years of age, occupation agriculturist. (since deceased): 1a) Shri Issac Quadros son of late Conceicao Quadros aged 39 years. 1b) Smt. Flavia Vales wife of Shri Issac Quadros aged 31 years. Both residing at H. Ho.334, Manora Raia, Salcete, Goa. 1c) Shri Raul Quadros, son of late Conceicao Quadros aged 34 years. 1d) Smt Agnes Fernandes, wife of Raul Quadros Second Appeals No. 19, 20 & 68/2007 -3- aged 26 years. Both residing at H. Ho.334, Manora Raia, Salcete, Goa. 1e) Smt. Maria Magdalina Borges, daughter of late Conceicao Quadros, aged 42 years. 1f) Shri Antonio Rosario Quadros husband of Maria Magdalina Borges aged 51 years Both residing at H. No.119, Near Carmal College, Nuvem, Covalem, Salcete, Goa. 2. Smt. Roza Souza wife of Appellant No.1, age about 42 years, occupation agriculturist Both residents of H. No. Manora, Raia, Salcete, Goa. …... Appellants/ Original Defendants V e r s u s Shri Salvador Quadros, major of age, occupation retired Government Servant, residing at 90-A, Govind Nagar, Malad, Mumbai - 64 …... Respondent/ Original Plaintiff AND SECOND APPEAL NO.68 OF 2007 1. Shri Conceicao Quadros alias Conceicao Dias age about 50 years of age, occupation agriculturist. (since deceased): 1a) Shri Issac Quadros son of late Conceicao Quadros aged 39 years. Second Appeals No. 19, 20 & 68/2007 -4- 1b) Smt. Flavia Vales wife of Shri Issac Quadros aged 31 years. Both residing at H. Ho.334, Manora Raia, Salcete, Goa. 1c) Shri Raul Quadros, son of late Conceicao Quadros aged 34 years. 1d) Smt Agnes Fernandes, wife of Raul Quadros aged 26 years. Both residing at H. Ho.334, Manora Raia, Salcete, Goa. 1e) Smt. Maria Magdalina Borges, daughter of late Conceicao Quadros, aged 42 years. 1f) Shri Antonio Rosario Quadros husband of Maria Magdalina Borges aged 51 years Both residing at H. No.119, Near Carmal College, Nuvem, Covalem, Salcete, Goa. 2. Smt. Roza Souza wife of Appellant No.1, age about 42 years, occupation agriculturist Both residents of H. No. Manora, Raia, Salcete, Goa. …... Appellants/ Original Defendants V e r s u s Shri Salvador Quadros, major of age, occupation retired Government Servant, residing at 90-A, Govind Nagar, Malad, Mumbai - 64 …... Respondent/ Original Plaintiff Second Appeals No. 19, 20 & 68/2007 -5- Mr. Sudesh Usgaonkar, Advocate for the Appellants. Mr. C. A Coutinho, Advocate for the Respondent. Coram :- F. M. REIS, J Date : 26 th September, 2011. ORAL JUDGMENT All the above Second Appeals are taken up together for consideration as they were ordered to be taken up as such. FACTS IN SECOND APPEAL NO. 19 OF 2007 2. The Respondent filed the suit for declaration and restoration of possession. It was the case of the Respondent that he is lawful owner of a landed property known as “Dhansalichem Bata” of nachini cultivation with dwelling house therein situated at Manora, Raia, described in Land Registration No. 32861 and is bounded towards the east by the property heirs of Jose Filipe Menezes, towards the west by that of Arnaldo M. de Menezes and brothers, towards the north by the road and towards the south by the property of same name of Apolinario Abundancio de Quadros . The said property is inscribed in the name of Filipe Mariano Quadros in the Land Registration Officer and is surveyed in the Record of Rights under no. 349/1 having an area of 6675 square metres besides 125 square metres of the house and 25 square metres of the well. It was further the case of the Respondent that said Filipe constructed the well and the house out of the money he received from a lottery having got the first prize. The said Filipe expired on 03.10.1935 leaving behind his widow Antonia Colaco and parents as his legal heirs. The parents decided to keep themselves all the moveables against their half share in Second Appeals No. 19, 20 & 68/2007 -6- the property and left the suit property and the house for his widow and, accordingly, a Deed was executed before the Notary on 04.11.1936. It is further the case that upon the death of said Filipe, his parents came to the property with their children and sister of Appellant no.1 was also residing with them as she was young of 16 to 18 years old and the Respondent was five to six years old. It is further their case that in the year 1940, the Appellant was born as a illegitimate son of the said sister followed by illegitimate daughter who lived with her husband at Manora. It is further their case that the Respondent had left for Mumbai for getting a job in the Railways and after sometime he took the widow of late Filipe Mariano Quadros to Bombay due to her love and affection. It is further their case that his sister alongwith the parents and the Appellant no.1 had gone for work on the mines and the Respondent used to come to Goa and reside in the suit house. After the liberation of Goa, the Respondent came to Goa with his family and stayed in the house as often they wished without any objection from said Ana. The Respondent were always welcomed by the said Ana and the relationship between Respondent and his sister Ana were actually cordial and good. The reception of the daughter of the Respondent was also held in the suit house in the year 1971. It is further their case that the widow of the said Filipe had gifted a property to the Respondent on 07.05.1985. This act excited the Appellant no.2 who raised claims over the suit property and also claimed that it was his mother's house. But, however, the Appellant no.1 filed a suit bearing no. R.C.S. No. 202/1986 and obtained Order to restrain the Appellants and also the widow of Filipe from interfering in suit property and the suit house with the exception of entrance room and verandah. Accordingly, they prayed for other reliefs as mentioned in the plaint. Second Appeals No. 19, 20 & 68/2007 -7- 3. The Appellants filed their written statement raising their preliminary objections on the ground that the suit deserves to be dismissed on account of inordinate delay. According to the Appellants, the mother of said Appellant no.1 said late Ana Quadros had been in actual possession and enjoyment of the suit property till her death in 1982 without any obstruction and interference from anybody. It is further their case that the cultivation in the suit property was carried out by the Appellants since he attained majority and also from 1935 onwards along with the said mother. According to him, the said house was constructed by his mother Ana and that the Respondent no.1 had left Goa and that the occupation of the room of the Respondent was with the permission of the Court. According to the Appellants, the Gift Deed is malafide and incompetent and has no title to the suit property and, as such, the Gift Deed deserves to be declared null and void. Alongwith the written statement, a counter claim was also filed by the Appellants claiming that the Gift Deed is null and void. It is further the case that the late Filipe had entrusted the property to Ana Quadros, mother of the Respondent as she paid off his debts and she was in actual possession of the suit house after the death of late Ana in 1982. The Appellants no.1 as such came in possession and enjoyment of the suit property and the Appellants claim to be owners by adverse possession of the suit property. 4. The learned Judge after framing the issues and recording of evidence by Judgment and Decree dated 18.04.2001, partly decreed the suit and declared that the Appellants to be the owners in possession of the suit property and the suit Second Appeals No. 19, 20 & 68/2007 -8- house and the well along with the Respondent herein. The remaining reliefs came to be rejected. 5. Being aggrieved by the said Judgment and Decree, the Appellants preferred an Appeal before the learned Addl. District Judge, South Goa, at Margao, being Regular Civil Appeal no. 76/2001. By Judgment and Decree dated 27.10.2006, the Appeal preferred by the Appellants came to be dismissed. Being aggrieved by the said Judgment, the Appellants have preferred the present Appeal. FACTS IN SECOND APPEAL NO. 20 OF 2007 6. The suit came to be filed by the Appellants against the Respondent on the ground that the Appellants are the owners in actual possession of the same property referred to herein above. It is the case of the Appellants that the mother of the Appellant no.1 late Ana Quadros was in quite absolute and uninterrupted possession of the said land and that the Appellant no.1 after attaining majority was helping his said mother in cultivating the land for the last 34 years and that the Appellant no.2 who is his wife also cultivated the said land alongwith the Appellant no.1 from the year May 1965. It is further their case that the said property was purchased by the maternal uncle of the Appellants late Filipe Mariano Quadros in the year 1932 and who had expired without any children entrusting the land to his sister said Ana Quadros as she paid debts of the said Filipe. It is further their case that the Respondent no.1 is his maternal uncle being the brother of the said late Ana Quadros permanently residing in Bombay and working in the Indian Railways for a period of 35 years. It is further their case that the Respondent no.2 was the Second Appeals No. 19, 20 & 68/2007 -9- widow of the said Filipe and that the Respondent stayed for a few days in the suit house and went to live with some relations in Nuvem Village. The Respondent also filed criminal complaints against the Appellants in July, 1986 and ultimately they attacked the Appellant and their daughter. It is further their case that the Respondent no.1 has no right at all to the suit property as late Filipe entrusted the property to the mother of Appellant no.1 who attended on him in his last days until his death. The Appellants further stated that they filed Regular Civil Suit No. 327/1989 for the declaration that the Respondent no.1 was not entitled to obstruct, interfere or disturb with the possession and enjoyment of the suit property and the suit house and also for a permanent injunction. Temporary injunction was granted in the said suit. The Respondent also filed a suit bearing no. 321/1987, seeking declaration and possession of the suit property. It is further their case that they were not aware about getting their names mutated in the Survey Records and as such during the survey proceedings, the name of late Filipe was maintained although he was dead. It is further their case that the Gift Deed executed in favour of the Respondent no.1 is null and void and liable to be set aside. 7. The Respondent filed their written statement disputing the claim of the Appellants. It is further their case that the Regular Civil Suit no. 321/1987 was filed by them on 30.10.1987 disclosing about the Deed of Gift executed in the year 1985 and, as such, the Appellants had knowledge about the said Gift. The contentions of the Appellants in the suit were disputed in the written statement by the Respondent. 8. The learned Judge by Judgment and Decree dated 18.04.2001, partly Second Appeals No. 19, 20 & 68/2007 -10- decreed the suit and, inter alia, declared that the Appellants are the co-owners in possession and enjoyment of the suit property surveyed under no. 334 of Manora Village with the dwelling house and the well. The remaining prayers came to be rejected. 9. The Appeal was preferred against the said Judgment and Decree before the learned District Judge being Regular Civil Appeal no. 78/2001 which Judgment and Decree dated 27.10.2006 came to be dismissed. Being aggrieved by the said Judgment, the present Second Appeal has been preferred by the Appellants. FACTS IN SECOND APPEAL NO. 20 OF 2007 10. The suit came to be filed by the Appellants in respect of the same property referred to herein above praying for a declaration that the Respondent is not entitled to obstruct, interfere or disturb with the possession and enjoyment of the suit property i.e. the land and the house bearing no. 334 of Manora Village and also for a permanent injunction, inter alia, restraining the Respondent, their servants and agents from interfering, obstructing and disturbing with the possession of the said land and the said house. The suit was resisted by the Respondent and he filed his written statements raising similar defences as referred to in the pleadings in respect of the proceedings referred to herein above. By Judgment and Decree dated 18.04.2001, the suit was dismissed with costs. An Appeal was preferred before the learned Addl. District Judge, South Goa, Margao, being Regular Civil Suit no. 77/2001 which by Judgment and Decree dated Second Appeals No. 19, 20 & 68/2007 -11- 27.10.2006, came to be dismissed. Being aggrieved by the said Judgments, the Appellants have preferred the present Second Appeal. SUBMISSIONS AND THEIR CONSIDERATIONS IN ALL ABOVE APPEALS 11. I have heard Shri Sudesh Usgaonkar, learned Counsel appearing for the Appellants and Shri C. A. Coutinho, learned Counsel appearing for the Respondent. 12. Shri Sudesh Usgaonkar, learned Counsel appearing for the appellants has assailed the impugned judgments and pointed out that the Courts below have erroneously come to the conclusion that the Appellants have failed to establish that they became owners of the suit property and the house by prescription. Learned Counsel further points out that the possession of the mother of the Appellant no.1 dates back from the time when the said Filipe was living prior to the year 1935 when he had entrusted the suit property and the house to the mother of Appellant no.1 namely said Ana. Learned Counsel further points out that from the time of the said entrustment, late Ana and thereafter the Appellants were in continuous unobstructed possession of the suit property and the suit house and as such they have acquired rights to the suit property and the house by prescription. The learned Counsel has further taken me through the provisions of the Portuguese Civil Code and pointed out that the possession established from the evidence on record is itself sufficient to come to the conclusion that the Respondent has lost right, title and interest to the property. The learned Counsel further points out that the Respondent failed to establish that he ever possessed any portion of the suit Second Appeals No. 19, 20 & 68/2007 -12- property and, as such, having failed to do so, the Respondent has lost his right to the suit property by prescription. The learned Counsel has taken me through the impugned Judgments passed in all the aforesaid Appeals by the Courts below and pointed out that the Courts below have erroneously appreciated the evidence on record and have come to an erroneous conclusion that the Appellants have failed to establish their claim and that they have become co-owners in possession of the suit house. The learned Counsel further pointed out that as the possession of the property was not sought for a period of 30 years in view of the provisions of the Portuguese Civil Code, the Respondent has lost his right of ownership over the suit property. 13. On the other hand, Shri C.A. Coutinho, learned Counsel appearing for the respondent has supported the impugned judgment. Learned Counsel has pointed out that it is not disputed that the said Ana and the Respondent no.1 herein are brother and sister and further that the said Filipe was one of the brothers. It is further his case that upon the death of the said Filipe, half of the property belonged to his widow the said Respondent no.2 and the other half had devolved upon the brothers and sisters after the death of the parents as the said Filipe had no issues. Learned Counsel further points out that as the said Ana was a co-heir entitled to the estate of the said Filipe which devolved upon her as well as the other heirs including the Respondent no.1, the question to claim any right of prescription to the suit property to the execution of the other co-heirs without any adverse possession, does not arise at all. The learned Counsel further pointed out that the alleged claim of prescription is totally far fetched and cannot be borne out from the records as on Second Appeals No. 19, 20 & 68/2007 -13- the basis of the pleadings of the Appellants themselves, the possession of the Appellants over the suit property was permissive. The learned Counsel further submitted that there is no infirmity committed by the Courts below whilst disposing the proceedings and as such there is no substantial question of law which arises in the present Appeal which requires consideration by this Court. 14. Before going into the rival contentions advanced by the learned Counsel appearing in the above Appeals, it would be appropriate to state that the facts which pervades from the pleadings as well as the evidence on record : I It is not in dispute that there is a property known as “Dhansalichem Bata” which is surveyed under no. 349/1 and situated at Manora, Raia, Salcete, Taluka. II The said property was purchased by Filipe Mariano Quadros in the year 1932 who was married to Antonia Colaco e Quadros. III The said Antonia was the original Defendant no.2 in Regular Civil Suit No.212 /1991 and 202 /1986 and has been deleted upon her death. IV It is also not disputed that the sister of the said Filipe Mariano Quadros is Ana Quadros whose son is Conceicao Quadros, who is the Appellant no.1 in the above Appeal. V The Respondent no.1 Salvador Quadros is the Second Appeals No. 19, 20 & 68/2007 -14- brother of the said Filipe Mariano Quadros and that said Filipe Mariano Quadros expired in the year 1935 leaving behind his widow the said Antonia Quadros as a moiety sharer and his parents as his legal heirs namely Novidade Quadros and Catarina Miranda. VI The said Novidade Quadros expired somewhere in the year 1957. VII On 05.05.1985, the said Antonia Colaco e Quadros, the widow of said Filipe Quadros gifted the property to Salvador Quadros on account of her disposable quota. The Survey Records in respect of the said property stand in the name of said Filipe Quadros and his name has been deleted and the name of the Respondent no.1 Salvador Quadros was inserted therein. VIII The Appellants Conceicao Quadros and his wife filed proceedings against the Respondent for a declaration that they are not entitled to obstruct or interfere or disturb with the possession of the suit property. The said property consists of open land as well as residential house. IX The claim of the Appellants in the plaint is that the suit property and the house was entrusted by said Filipe Quadros to Ana Quadros mother of said Appellant no.1 and that they are in absolute and peaceful possession of the property and the house existing therein and, as such, sought for the reliefs as referred to hereinabove. The suit filed by the Second Appeals No. 19, 20 & 68/2007 -15- Appellants was resisted by the Respondent disputing the claims put forward by the Appellants, besides on other counts that the widow Antonia Quadros was residing in the house after the death of Filipe Quadros and, as such, disputed the claim of the Appellants that they were in peaceful possession of the suit property. X The suits filed by the Appellants came to be dismissed by Judgment dated 18.04.2001 on the ground that the Appellants were the co-owners in possession of the suit property alongwith the Respondent and further held that as the said Filipe Quadros was residing in Bombay due to his services, the said widow was residing alongwith him. 15. The learned Judge while passing the impugned Judgment, came to the conclusion that there was no evidence on record to establish that the Appellants were in exclusive possession of the suit property. The Respondent also filed the suit being Regular Civil Suit no.321/1987 on the basis of the Deed of Gift praying, inter alia, for a declaration that the suit property belonged to him. The said suit was partly decreed holding that the Appellants and the Respondent no.1 were the co- owners in possession of the suit property. 16. The submission of Shri Sudesh Usgaonkar, the learned Counsel appearing for the Appellants to the effect that the suit property was not mentioned in the Deed of Succession executed upon the death of the said Filipe Quadros and, Second Appeals No. 19, 20 & 68/2007 -16- as such, this infers that the suit property was not part of the inheritance of the said Filipe Quadros, the said contention deserves to be rejected. On perusal of the said Deed of Succession, only the moveable properties of the said deceased Filipe were mentioned therein. This itself shows that the immoveable properties were left out from the said Deed of Declaration and qualifications of heirs executed between the parties upon the death of Filipe Quadros. It is also well known that normally in such Deeds of Succession, the immoveable properties are not mentioned. In any, event merely because the immoveable properties are not mentioned in such Deed by itself does not mean that they have been excluded from the inheritance of the said deceased and as such belongs to the mother of the Appellant no.1, namely Ana. 17. In order to consider the contention of the Appellants that they have acquired the right over the suit property by prescription, it would be appropriate to consider the pleadings of the Appellants to ascertain as to whether on the basis of such pleadings any such right of prescription can be acquired by the Appellants. The pleadings of the Appellants disclosed that in the year 1935, the suit property along with the house was entrusted in favour of the mother of the Appellant no.1, said Ana. The word “entrust” in Oxford Law Dictionary, means to assign responsibility put into someone's care. Black's Legal Dictionary gives the meaning to the word “entrust” as to give the person responsibility of something usual after appreciating the confidential relationship. On plain reading of the meaning of the word “entrustment” itself discloses that the suit property which is alleged to have been given to