... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. SECOND APPEAL NO.67 of 2008 Mr. Cipriano Pereira, aged 98 years old, widower, r/o Ponderosa building, Patto, Panaji, Goa. … Appellant v e r s u s 1. Mr. Narciso Antonio Mesquita, House no.212/D, Vasutha Housing Colony, Alto Santa Cruz, Bambolim, Goa. 2. Mr. Ankush Rajaram Naik, M/s Vishal Constructions, E-655, St. Inez, Panaji, Goa. … Respondents Mr. M. B. D'costa, Senior Advocate with Mr. Joseph Vaz, Advocate for the appellant. Mr. Coelho Pereira, Senior Advocate with Mr. J. Godinho, Advocate for the respondents. ... 2 ... CORAM: C. L. PANGARKAR, J. DATE : 31st March, 2009. ORAL ORDER: This is second appeal by the Objector. A few facts may be narrated as follows: 2. A plot admeasuring 1221 sq.mtrs. originally belonging to Custodio Caetano D'souza has left behind him some of the heirs. One of them is Antonio D'souza who is the owner of the property. Said Antonio had six sisters. Antonio, son of the original owner agreed to sell the plot to the respondent no.2/Ankush Naik. Ankush Naik had agreed to develop the said plot and erect a building thereon. He undertook to construct a building and built certain flats. This act was challenged by the sisters of Antonio by filing a suit. Injunction was granted in the suit restraining Ankush Naik from ... 3 ... making any constructions in the suit plot. Thereafter, Inventory Proceedings were filed and in those proceedings, Antonio agreed to purchase the entire property and accordingly, it is alleged that he purchased the entire property. It is further not disputed that Antonio did not pay the amount of share to Maria Gloria and Maria Aida. It was further agreed that the builder respondent no.2 would pay the amount of share to Maria Gloria and Maria Aida. In the year 1984 there was an agreement between the said builder and Maria Aida, by which the builder agreed to sell flat no. 203 to Maria Aida. It is further alleged that in pursuance to the said agreement, the amount which was required by the builder to be paid to Maria Gloria and Maria Aida was appropriated by the said builder towards consideration of flat no.203. It is contention of the objector that thereafter flat no.203 came to recorded in the name of Maria Aida in the Municipal Records. It is ... 4 ... contention of the objector further that Maria Aida was thereafter, paying Municipal taxes to the Municipal Council. Later, it is alleged that Maria Aida had shifted to foreign country and was not interested in the said flat no.203. The objector contended that in pursuance to the agreement, he paid the share payable to Maria Aida and actually paid to amount to her which was payable to her under the Inventory Proceedings. The objector contends that therefore, Maria Aida had in fact given the entire property to the present objector who happens to be the husband of Maria Gloria, who is no more. 3. Before however the agreement was executed between Maria Aida and respondent no.2/builder, the present decree holder, who is respondent no.1 had filed a Civil Suit No.162/1983 for specific performance of contract against the builder, Ankush Naik. In this proceeding, an application was made ... 5 ... for referring the dispute to the Arbitrator and the dispute was referred to the Arbitrator. The Arbitrator thereafter passed an award. The said award was converted into a decree by the Civil Court. It is not in dispute that the said decree has assumed finality. It is not in dispute, that under the said award/decree, flat no.203 was directed to be transferred to the present respondent no.1. In pursuance to this award, the respondent no.1/decree holder filed Execution proceedings before the Court. A notice of this Execution proceedings was issued whereupon, the present appellant filed an application under Order 21 Rule 97 of the Civil Procedure Code wherein the appellant/objector raised contentions as stated above. The said application was resisted by the decree holder. The decree holder contends that his agreement with the builder/respondent no.2 was prior in time, he had parted with the money and is entitled to the sale deed as well as possession. ... 6 ... 4. The learned Judge of the Trial Court rejected the application under Order 21 Rule 97 of the Civil Procedure Code finding that the application at the instance of third party was not maintainable. The objector therefore, preferred an appeal before the District Court. The said appeal was heard by the Ad-hoc District Judge, Panaji. She found that the contention of the applicant that he continues to be the owner on account of non payment of owelty dues, was not correct. Though the rights under the agreement of the year 1984 are alleged to be transferred in favour of the appellant, there was no agreement of assignment or transfer of rights executed between the appellant and his sister-in-law Maria Aida. It was also found that the claim of the respondent no.1 was prior in time and there is no agreement or deed in favour of the present objector, holding so, she dismissed the appeal. ... 7 ... 5. The learned counsel for the appellant submitted that the two substantial questions of law that arise are whether failure to pay owelty creates legal mortgage and whether Antonio had acquired title by adverse possess since the respondent no.2 had put him in possession ? As far as the second question is concerned, the learned counsel for the respondent contended that such question was not raised before the Trial Court or the Appellate Court. After going through the orders of the Trial Court and the Appellate Court, I find that there no contention of adverse possession was raised. It is not to be found in the pleadings also. It is the contention of the applicant/objector himself that the real owner, in fact was Maria Aida. If it is so, it can be raised only against her. Since such pleadings are absent, such question of law cannot arise. 6. As far as the first question is concerned, ... 8 ... it may be mentioned that the learned Judge of the First Appellate Court has rightly held that where owelty is not paid, it can be treated as debt due and can be recovered by execution or by filing suit. In any case, it is brought to my notice from the evidence of the objector, that the objector has admitted that his share and the share of his wife is deposited in the Court. In view of the fact that the amount was deposited in the Court, the said amount was made available to the objector. 7. The learned Judge of the Trial Court has rightly pointed out that the claim of the respondent no.1 was prior in time and that of the present objector was later in time. However, it may be observed that when the agreement between Maria Aida and the respondent no.1 was executed in 1984, Civil Suit No.162/1983 was already pending and therefore, Maria Aida had run the risk of having purchased the ... 9 ... property subject to the decision of the suit and she had so purchased the said property subject to the decision of the suit. Further, the learned Judge of the First Appellate Court has rightly observed that there is no agreement and transfer of rights executed between appellant and his sister-in-law Maria Aida. I find that decision of the First Appellate Court was right on facts. No substantial question of law is involved. On facts the decision of the Appellate Court is correct. In view of this, I do not find any substance in the appeal and it is dismissed. C. L. PANGARKAR, J. lh/.