1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.65 OF 2010 Edwin Mendonca, Landlord, resident of Calvaddo, House no.208, Varca Goa. V e r s u s Maria Blandina Almeida Baracho, Widow, housewife of Varca, (since deceased represented by heirs) 1. a) Fulgencio Antonio Coracao de Jesus Baracho, son 1. b).Veordina Valua Gonslaves Baracho, (expired) both r/o Varca 1.b.a) Albertino A. Baracho, age 33 years 1.b.b Arnaldo Fulgencio A. Baracho, expired, both residing at Calvado, Varca, Salcete Taluka. 1.b.(b) i. Smt. Priya Arnaldo Barachol, major in age, 1.b.(b) ii. Neckel Arnaldo Barcho, 2. b (b)iii. Raju Arnaldo Baracho, 2 all residing at Varca, Salcete, Goa. 1. c. Antonio Francisco do Espirito Santo Baracho (son) 1. d. Maria Joana Lira Sacrementa Souza, both r/o Australia, House No. of all the parties Not known. …. Respondents. Mr. P. Kholkar, Advocate for the Appellant. Mr. Sudin Usgaonkar, Advocate for the Respondents. Coram: A. P. Lavande, J. Date: 2nd August,2011. ORDER: By this Second Appeal, the appellant takes exception to the judgment and decree dated 25th October,2007 passed by the Adhoc District Judge-I, South Goa, Margao in Regular Civil Appeal No.54/1997, dismissing the appeal against the judgment and decree dated 27/8/1997 passed by the Additional Civil Judge, Senior Division, Margao in Regular Civil Suit No.255/74/I. 3 2. The respondents are the legal representatives of Maria Blandina Almeida Baracho filed a suit for declaration and permanent injunction against the appellant/plaintiff on the ground that she was the usufructary of the property known as “Calvado” situated at Varca registered in the Land Registration Office of Salcete under No.42.945 and enrolled in the Revenue Records under No.628. It was her case that the property was sold to her son by deed of partition dated 12/1/1952 with usufruct in her favour. She claimed that she and her family members were in possession of the suit property for about 60 years. 3. The suit was contested by the appellant/defendant by filing written statement. The defendant claimed title to the suit property “Calvado” situated at Varca, registered in the Land Registration office of Salcete under no.12.386 from his ancestors and claimed 4 that their ancestral house existed in the said property in dilapidated condition at the relevant time. 4. In the course of the suit, the original plaintiff expired and her heirs were brought on record and consequently the Trial Court decreed the suit and held that the plaintiffs are the lawful owners in possession of the suit property and the original plaintiff was usufructary in peaceful, continuous and lawful possession. The defendant, was restrained by decree of permanent injunction from interfering with the suit property. 5. The appeal preferred against the said judgment was also dismissed. 6. Mr. Kholkar, learned counsel appearing for the appellant submitted that the suit for declaration was not maintainable in as much as Avertino Baracho expired 5 before 1952 and in absence of the owner of the property a declaration could not have been sought by the plaintiff. According to learned counsel, the suit for declaration of usufructnary right in favour of the plaintiff was not maintainable after the death of the original plaintiff. Learned counsel further submitted that the suit was bad for non- joinder of necessary parties. Mr. Kholkar placed reliance on the judgment of the Apex Court in the case of Smt. Rajbir Kaur and another Vs. M/s. Chokosiri and Co., AIR 1988 SC 1845, in support of his submission that if the parties knew the case and proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. 7. Mr. Usgaonkar, learned counsel for the respondents supported the impugned judgments and decrees and submitted that having regard to the written 6 statement filed by the defendant it is evident that the plaintiffs have disputed the existence of the suit property. On the contrary, the defendant claims that he was in possession of the property known as Calvado bearing registration no.12.388. According to Mr. Usgaonkar the defendant has nowhere pleaded that the suit property bears registration no.12.388 and not 429945, as claimed by the original plaintiff. On the contrary, the defendant has taken a plea that the suit property is non-existent. Learned counsel, therefore submitted that no case has been made out for interference with the concurrent findings recorded by both the Courts below. 8. Having heard the learned counsel for the parties and having perused the record, I find that no interference is warranted with the decrees passed by both the Courts below. It is pertinent to note that after the death of the original plaintiff, her legal representatives were brought on 7 record who claimed ownership of the suit property which has been upheld by the Trial Court. I find nothing wrong with the approach of both the Courts below in granting declaration in favour of the legal representatives of the original plaintiff after the death of the original plaintiff. Moreover, from the perusal of the written statement and the issues framed by the Trial Court it is evident that the defendant never claimed that the suit property and the property known as “Calvado” with registration no.12.388 was one and the same property. 9. In paragraph 11 of the written statement the defendant has taken a specific stand that he did not know the property mentioned therein (the suit property) allegedly belonged to the plaintiffs. In view of this pleading, I find it extremely difficult to accept the submission of Mr. Kholkar that both the parties understood that the dispute was in respect of the suit property. It is well settled that evidence beyond the pleadings cannot be 8 considered by any Court. In the present case, it is not a case of deficiency in pleadings, but on the contrary the defendant has taken a specific plea that he did not know the property of the plaintiffs and he claimed right in the property having a different registration number. Therefore, I am of the considered opinion that the judgment in the case of Rajbir Kaur does not advance the case of the appellant. 10. I am of the opinion that no fault can be found with the concurrent findings arrived at by both the Courts below upon appreciation of the evidence, both oral and documentary and, as such, no interference of this Court is warranted in exercise of jurisdiction under Section 100 of C.P.C. In any case, no substantial question of law is involved in the present appeal. Hence, the appeal is rejected. A. P. Lavande, J. Ap/-