1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. FIRST APPEAL NO.1196 OF 2001. APPELLANTS : 1. Mrs.Mary wd/o Wilfred D'Souza, House No.142, Villabhbai Road, Vile Parle (West), Bombay 400 056. (Deleted) 1(a) Mrs.Winnie d/o Wilfred D'Souza and Cyril Pires, Residing at Tank Pakhadi, Sahar Village, Bombay 400 099. 1(b) Mr.Alex s/o Wilfred D'Souza. 1(c) Mr.Teddy s/o Wilfred D'Souza. 1(d) Mr.Godfrey s/o Wilfred D'Souza. 1(e) Mr.Oniel s/o Wilfred D'Souza. 1(f) Ms.Twinkle d/o Wilfred D'Souza. Residing at House No.143 Vallabhbhai Road, Vile Parle (West), Bombay 400 056. ..VERSUS.. RESPONDENTS: 1. Miss Florie Agustine D'Souza House No.138, Vallabhbai Road, Ville Parle (West), Bombay – 400056. 2. Mrs.Pushpaben Ramanlal Supawala, House No.132, St.Braz Road, Vile Parle (West), Bombay 400 056. 2 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Ms E.A.Gonsalves Advocate for the appellants. Mr.M.P.Vashi, Advocate for the respondents. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM: Smt.R.P.SondurBaldota,J. DATED : 25th JANUARY, 2010. ORAL JUDGMENT: 1. The appellants are the original plaintiffs, who challenge by this appeal the judgment and decree dated 11/12/2000 passed by Bombay City Civil Court dismissing their suit for declaration of their title to the suit property and for permanent injunction to restrain the respondents from entering into the suit property. Respondent no.1 is original defendant no.1 and respondent no.2 is original defendant no.2. 2. The undisputed facts of the case are as follows - Prior to 1944 one Alex Duming Souz was the owner of the property at Survey No.162A, Hissa No.16 3 (part) situate in West Gaothan, Vile-Parle (West), admeasuring about 363 Sq.yards. Later this plot was allotted Final Plot Nos.1406 and 1406/1 to 4 and 1407 and 1407/1 to 4. In the year 1960 a portion admeasuring 64 sq. yards was held to belong to the adjoining land owner. Presently the total area of the land at CTS No.1406 and 1406/1 to 4 is 129 sq. mtr. 3 which is undisputedly owned by the appellants. The area of CTS No. 1407 and 1407/1 to 4 is 91.59 mtr. which is the subject matter of the suit herein. 3. Alex died leaving behind two sons Gustin and Dominic. Dominic also died leaving behind two sons Wilfred – the original plaintiff and George. Gustin died leaving behind four daughters out of whom respondent no.1 alone is surviving. The present appellants are the heirs of Wilfred. 4. On 14th October, 1957, a notice was served upon Wilfred under the Maharashtra Land Revenue (Inquiry into Title) Rules 1967. The final order passed thereon dated 23rd December, 1957 reads as follows - “Shri Wilfred states on S.A. this property bearing Survey No.162-A, H.No.16 (area 363 sq. yards) in his ancestral property. It was standing in the name of Alex Duming Souz (his grand-father) who is now dead. He had two sons viz (1) Shri Gustin Alex and (2) Domnic Alex. Shri Alex before his death was made Will dated 20/4/1944 (unregistered but made before the Rev. Father of St.Francis Church, Vile-Parle and some witnesses) according to which this property is given to (1) Wilfred Domnic D'Souza and (2) George Domnic D'Souza, who are 4 the sons of Shri Alex's second son viz. Domnic. Shri Alex gave some other property on the East of this house to Shri Gustin his Eldest Son. Shri Gustin has been called upon and consulted by me. He states that he or his children have no share or interest in his property and has no objection to transfer it to the names of Wilfred and George and order that S.No.162A, H.No.16 Pt. should be shown in the names of (1) Wilfred and (2) George. The Co.No.LND 4576 of 14/7/1957 stands in Alex's name and the Municipal bill stands in Wilfred's name. Sheds on the East this house bearing Ch.No. 20 to 23A should be known in the name of Gustine Alex D'Souza. Holders- Ch.No.24 to 27A ) 1. Shri Wilfred Dominic D'Souza )2. Shri George Dominic D'Souza Ch.No.20 to 23A ) Shri Gustin Alex D'Souza.” The above order has been quoted in it's entirety because the claim of title of the appellants to the suit property is mainly based upon the interpretation of the above order. 5. The appellants contended in the suit that Alex had left a Will under which he had bequeathed the property at Survey No.162A 5 Hissa No.16 upon Wilfred and George. Gustin was given some other property to the East of their house. Later Wilfred and George mutually partitioned the property with Wilfred becoming the owner and occupant of the eastern side and George of the western side. The appellants claim to have been in possession of the suit property. They alleged that sometime in March, 1988 respondent no.1 started claiming a right to the suit property. Respondent no.2 claimed to have agreed to purchase part of the suit property i.e. City Survey No. 1407 from respondent no.1 and has been attempting to visit the same. There had been complaints and cross-complaints filed between the parties. The appellants' enquiries with the City Survey office revealed that in the year 1981 respondent no.1 had got her name incorporated in the Property Register Card as the holder of the said property. The appellants alleged that this was a dishonest act on the part of respondent no.1. 6. The suit herein for declaration of title to the suit property and consequential injunction was filed originally by Wilfred. On his death, the present appellants were brought on record during pendency of the suit. 6 7. Respondent no.1 denied the claim of the appellants including the bequest under the Will. She contended that her father was the owner of the suit property and the structure standing thereon being house No.142 with Municipal assessment No.K-9009. On the death of Gustin, she became the exclusive owner of the property as her sisters relinquished their share in her favour. She continued to be the owner until she sold the suit property to respondent no.2 by registered deed of conveyance dated 18th September, 1984 and handed over possession to her. 8. Respondent no.2 contends to have entered into an agreement of sale dated 14/2/1983 after verifying the revenue and Bombay Municipal Corporation records. She claims to be bona fide purchaser for value of the suit property without notice of the dispute between the appellants and respondent no.1. 9. The appellants examined appellant no.1(d) (PW1) and George Domnic D'Souza (PW 2) in support of their case and the respondents examined themselves in support of their respective cases. 10. The trial court, on appreciation of the evidence held that the appellants had failed to prove either the title to the suit property or its possession. It further held that defendant no.2 is the bona fide 7 purchaser of the suit property without notice of the dispute between the appellants and respondent no.1. With these findings, the suit was dismissed. 11. The appellants assail the findings and the decision contending that the same are passed on the surmises and conjunctures and not supported by the evidence. They also contend that the learned trial judge has not properly interpreted the final order dated 23rd December, 1957. Ms.Gonsalves, the learned counsel for the appellants, submits that if the learned judge were to correctly interpret the said order, it could have been seen that Gustin had, in fact, given up his claim to the suit property. 12. As already mentioned herein above, the main thrust of the evidence of the appellants is the order dated 23rd December, 1957 passed by the revenue officials after conducting enquiry into occupancy of the property. The appellants also produced revenue receipts at Exh.'G' collectively. These revenue receipts do not specify the suit property. The receipts refer only to Khata No.63. The appellants did not produce Khata Pustika issued by the revenue authorities in order to establish that Khata No.63 was in respect of the suit property. Other two documents produced by the appellants 8 being notices dated 24th January, 1992 and 5th of October, 1987 are addressed neither to the appellants nor to Wilfred. They are addressed to Alex. Thus, it can be seen that the only evidence as regards title, produced by the appellants, is the final order dated 23rd December, 1957 and the deposition of the two witnesses. 13. As against above evidence of the appellants, respondent no.1 produced 7/12 extracts (Exh.3) collectively in respect of the suit property showing her occupancy. The entry in respect of her occupancy was taken as far back as the year 1980-81. She also produced Sanad granted by the State Government in respect of the suit property (Exh.4 collectively), bills for assessment and receipts for payment of property tax to Corporation in respect of the structure bearing House No.142 standing in the name of Gustin. The bills cum receipts are for the period 1/4/1957 onwards. The revenue receipts produced by respondent no.1 shows that for the suit property the Khata No. given is “63-A”. These documents establish that the suit property was owned by Gustin. 14. Coming to the main plank of argument of the appellants i.e. the order dated 23rd December, 1957. The order was passed in an inquiry, the purpose of which was to record actual occupancy. At the 9 time of the enquiry the suit property formed part of City Survey No. 163A. It is seen that on the basis of the occupancy, Chalta numbers were given at the time of the inquiry. This can be gathered from the Inquiry Register at Exh.'E'. The conclusion of occupancy recorded therein is - Chalta No.24 to 27A – 1) Wilfred Domnic D'Souza, 2) George Domnic D'Souza Chalta No.20 to 23A - Gustin Alex D'Souza. Ms Gonsalves submits that Chalta number is merely a serial number recorded in the register and no more significance can be attached to it. The learned trial judge has considered this aspect also by looking into the nexus between the Chalta number and the CTS plot numbers. His observations are as follows - “Now, the next question which poses for my consideration is what is the relevancy and nexus in between Chalata numbers recorded by the inquiry officer and the CTS plot numbers which are the subject matter of this suit, falling for my consideration. The answer to my question finds place in the document Ex.No.C itself, which is produced by the plaintiffs themselves. On the last page i.e. Page No.2 the inquiry officer has recorded as to what corresponding final plot 10 numbers were given to the aforesaid Chalta numbers, on conclusion of the inquiry. The Column No.1 describes the Chalata number. Column No.2 of the said register describes the part of Survey number to which those Chalata number falls. Column No.3 of the said Inquiry Register shows the area of corresponding Chalata number. The Column No.4 shows the date of notice given in respect of Inquiry. The Column No. 6 and 7 pertains to the person who were present at the time of inquiry and Column no.8 pertains to final CTS plot numbers given to the Chalata numbers. If we consider this document, then Chalata No.20 having area 11-6/9 is shown to be given Chalata No.1407/2 as a final CTS number. The Chalata No.21 having area of 11-6-9 is given final CTS No. 1407/1. The Chalata No.22 having area of 28-6/9 is given as final CTS No.1407/3. The Chalata No.23 having an area of 9-6/9 is given as final CTS plot No.1407/4 and Chalata No. 23A having an area of 48-3/9 is given final plot No.1407. If we consider these entries with reference to holding occupancy of these plots recorded by the Inquiry Officer on conclusion of inquiry, then the occupancy and ownership admittedly vested in favour of Gustin D'Souza. 11 The inquiry officer has specifically recorded the names of holders of Chalata No.20 to 23A as Gustin Alex D'Souza, whereas, holders of Chalata No.24 to 27A is recorded in the name of Wilfred Domnic D'Souza – (Original Plaintiff) and George Domnic D'Souza – the brother of the original plaintiff. From the above analysis of Exh.'C', it is clear that the Chalta number is not as insignificant as a serial number which may possibly change depending upon the changes in the entries made in the register as sought to be submitted by Ms Gonsalves. This number is a permanent number which is later used to describe the property. The order relied upon by the appellants describes the property at Ch.No. 20 to 23A as the property to the east of the house standing in the name of Alex. As per the appellants own case in the Will left by Alex, Gustin was given the property to the east of the house. The Will has not been produced before the court to show that the description in the order is erroneous. Besides one cannot lose sight of the fact that the inquiry conducted was for the purpose of recording the actual occupancy. 12 15. Ms Gonsalves then seeks to refer to similar order dated 20/3/1958, which is in respect of Chalta No.263 which was not produced in evidence before the trial court. The appellants have filed C.A.No.1698 of 2005 under O. 41 Rule 27 C.P.C. for production of the document along with other additional evidence in appeal court. By the separate order passed on the Civil Application, the same has been dismissed. However, since Ms.Gonsalves has extensively referred to this document during her argument, I consider it only appropriate to deal with the same. 16. The extract of Inquiry Register in respect of Chalta No.263, according to Ms Gonsalves, discloses the property that had gone to the share of Gustin under the Will of Alex. She submits that this extract would show that Wilfred and George had given up their right in respect of the same. Chalta No.263 relates to C.S.No.29 Pt. As per the register Municipal record showed the name of Duming A.D'Souza as the holder of property when as per the record of right dated 6/11/1957, the property at C.S.No.28 and 29 stood in the name of Itoor Mingu and Bavatis Duming. The properties were given Chalta Nos. 263, 263A, 263B, 263C and 263D. Though the property belonged to Itoor and Bavatis, a portion of it was found in possession 13 of Gustin. By the arrangement arrived at during the inquiry, Chalta No.263 was held to be in occupation of Gustin and the heirs of Bavatis were held to be the occupants of Ch.No.263A to 263D. Thus, this property is not seen to be the property belonging to Alex Duming which formed part of bequest under the Will. Therefore, this document even if it were to be allowed to be produced would have been of no help to the appellants. 17. In all the above circumstances, it is seen that the learned trial judge has properly appreciated the evidence led by the parties and arrived at the right decision. Hence, the appeal is dismissed. In the circumstances of the case, the parties to bear their own costs. 18. On the oral request of Ms. Gonsalves, the interim order passed in the Appeal on 30th January, 2002 directing the parties to maintain status-quo in the suit property is extended for a period of 6 weeks from today. (Smt.R.P. SondurBaldota, J.)