1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 3 OF 1998. Shri Umakant R. Sawkar, resident of Borim, Ponda, Goa, since deceased, by his legal representatives : a) Smt. Manorama Umakant Sawkar. b) Miss Hema Umakant Sawkar. c) Miss Seema Umakant Sawkar. d)Miss Swamini Umakant Sawkar, all residing at Xirxirem, Borim, Ponda, Goa. .... Appellants. ( Orig. Pltff. ) Versus 1. Shri Babani Raia Gaude, alias Gaokar, since deceased, by his legal representatives: 1a) Smt. Chanar Babai Gaude, alias Gaokar. 1b) Shri Prakash Babani Gaude. 1c) Shri Vishwanath Babani Gaude. 1d) Miss Mangal Babani Gaude. All residing at Sanwarbhat, Borim, Ponda, Goa. 2. Shri Fondu Vassu Gaude alias Gaokar. Since deceased, by his legal representatives: 2a) Smt. Paru Fondu Gaude. 2b) Shri Gurudas Fondu Gaude. 2c) Shri Gajanan Fondu Gaude. 2d) Shri Narayan Fondu Gaude. 2e) Shri Gokuldas Fondu Gaude. 2f) Miss Shakuntala Fondu Gaude. 2g) Miss Namu Fondu Gaude. 2 3. Shri Deu Rupo Gaude alias Gaokar, since deceased, by his legal representatives: 3a) Shri Shantaram Deu Gaude. 3b) Shri Krishna Deu Gaude. 4. Shri Anant Govind Gaude alias Gaokar. 5. Shri Hari Shambhu Gaude alias Gaokar. 6. Shri Bhisso Dugu Gaude alias Gaokar, since deceased, by his legal representatives: 6a) Smt. Kesar Bhisso Gaude. 6b) Shri Vishnu Bhisso Gaude. 6c) Smt. Nutan Vishnu Gaude. 6d) Shri Dayanand Bhisso Gaude. 6e) Smt. Geeta Dayanand Gaude. 6f) Shri Satyawan Bhisso Gaude, all residing at Sawarbhat, Borim, Ponda, Goa. 6g) Smt. Ahilya Shrikant Gaokar. 6h) Shri Shrikant Savlo Gaokar, both residing at Wadi, Talauli, Ponda, Goa. 6i) Smt. Vijaya Shaba Gaokar. 6j) Shri Shaba Gaokar, both residing at Cuncolim, Salcete, Goa. 7. Shri Shrikant Ram Raude, alias Gaokar, residing at Sanwarbhat, Borim, Ponda, Goa. ... Respondents. ( Orig. Defts. ) Shri U.S. Kolwalkar, Advocate for the Appellants. Shri S.D. Lotlikar, Senior Advocate with Ms. S. Naik, Advocate for the Respondents. CORAM: N. A. BRITTO, J. DATE: 23 rd SEPTEMBER, 2005. 3 J U D G M E N T: This is plaintiff's Second Appeal arising from R.C.S. No.45/1977 which was filed by the plaintiff for injunction simpliciter to restrain the defendants from interfering in the plaintiff's property known as “ Borimol” having Land Registration No. 18868 of Book B 50 New situated at Borim, Ponda, Goa. The parties hereto shall be referred in the names as they appear in the cause title of the suit. 2. This appeal was admitted on three substantial questions of law, the first of which reads as follows :­ Whether the lower appellate Court arbitrarily exceeded its jurisdiction in setting aside the trial Court's judgment and decree without indicating any legal and reasonable reasons. 3. There is no dispute that the plaintiff is the owner of the property known as “Borimol” while the defendants are the owners of the property known as “Sanvorbhat”. The case of the plaintiff was that the northern boundary of their property was the boundary of the said “Sanvorbhat” and part of the property of the plaintiff during recent survey was surveyed under No.28 along with the said property Sanvorbhat. According to the plaintiff the plaintiff were in exclusive possession and enjoyment of the suit property 4 continuously, peacefully, openly and as of right and adversely as against the whole world and apart from the documentary title, a title by way of prescription was crystallized in favour of the plaintiffs in respect of the suit property. However, the case of the defendants was that the southern boundary of their property “Sanvorbhat” was not the property of the plaintiffs, but the property of the Comunidade and this Comunidade property touching the defendant's property was demarcated by nine stone marks of which of which there were only seven existing. 4. It appears that the defendants' property Sanvorbhat was surveyed under old Cadastral survey No.75 while the plaintiffs' property “Borimol” was not surveyed under the old Cadastral survey. The plaintiffs' property was surveyed under Nos.28/1, 93/1 and 2 and the dispute between the plaintiffs and the defendants was regarding new Survey No.29 which was surveyed along with the property “Sanvorbhat” as belonging to the plaintiff. 5. The defendants' property “Sanvorbhat” was surveyed under old cadastral survey No.75 while the plaintiffs' property “Borimol” was not so surveyed. By agreement, both the parties filed an application before the trial Court dated 13.4.81 with a view to cut short the litigation between them and to identify the boundaries of the defendants' land bearing the said cadastral survey No.75 and locate the same on the basis of the said plan and 5 also to locate the stone quarries in the land which was the subject matter of the suit in relation to the said boundaries. The parties also pointed a Commissioner by name Naguesh Kamat. The Commissioner with a view to facilitate the correct marking of the southern and eastern boundaries of old cadastral survey No.75 collected data from the Land Survey Department as well as from the Comunidade of Borim in relation to the properties surrounding under old Cadastral survey No.75 and demarcated the defendants' property having old Cadastral Survey No.75 by letters 'A to K' and also demarcated the stone quarries vis­a­vis the new survey plan. The Commissioner concluded that the stone quarries did not fall in the property of the defendants under old Cadastral Survey No.75, but they were falling in the old Cadastral Survey No.65 belonging to the Comunidade of Borim and some part of the old stone quarries were falling in the property of Shri Ganba R. Porob and others as per old Cadastral plan and as per new Survey plan the said stone quarries were situated within the property of the defendants and some part in survey No.28. 6. It appears from the Judgment of the learned trial Court that both the parties accepted the report of the Commissioner but the defendants had demanded the dismissal of the suit on the ground that the Commissioner had shown that the stone quarry did not exist in the property of the plaintiff; while the plaintiff demanded that the suit be decreed on 6 admission as it was clear from the plan submitted by the Commissioner that the property 'Sanvorbhat' surveyed along with the vast adjacent area under new Survey No.29 and because the stone quarries were partly situated in the land bearing survey No.28 and partly in the land bearing Survey No.29 but entirely beyond and far away from the property 'Sanvorbhat'. However, the suit was not dismissed or decreed on those basis and the parties produced their evidence as well. 7. The learned trial Court came to the conclusion that the Commissioner had emphatically asserted that the stone quarries were not falling in the property surveyed under old Cadastral Survey No.75 but he had asserted that the stone quarries fell partly in the property surveyed under old Cadastral Survey No.65 and partly in the property of Shri Ganba R. Porob and therefore it was clear that stone quarries falling in the property of the Comunidade did belong to the plaintiff through his usurpation of land of the Comunidade and it was not for the defendants to question such usurpation as for many years the Comunidade was relying relaxable (relaxed) and therefore the plea of the plaintiff that a title by way of prescription had crystallized in his favour could not brushed aside. The learned Trial Court therefore found that the plaintiff was in possession and enjoyment of the property claimed by them and decreed the suit. 7 8. The defendants having taken an appeal before the District Court, the learned Addl. District Judge rightly observed that the only point for his consideration was whether the plaintiffs were in possession of the suit property as on the date of filing of the suit as the suit was for permanent injunction simpliciter. Likewise the learned Addl. District Judge had also rightly observed in tune with the learned trial Judge that the report of the Commissioner had set at rest the entire controversy involved in the suit, but proceeded to observe that on the basis of the report of the Commissioner, it was clear that the disputed property did not belong to the plaintiff but to the Comunidade of Borim and since it was not the case of the plaintiffs that they had encroached upon the property of the Comunidade, the plaintiff's claim that they are the owners in possession of the suit property was difficult to be believed and therefore the plaintiffs were not entitled to the permanent injunction as prayed for by them. The learned Addl. District Judge also observed that the property was surveyed under No.29 in favour of the defendants and therefore by virtue of Section 105 of the Land Revenue Code, it had to be presumed that the entries made in the survey records are correct and that the plaintiffs had failed to rebut the presumption of correctness of the said survey records. 9. Shri Kolwalkar, the learned counsel of the plaintiff/s has submitted that the Commissioner was not appointed to find out as to whose property 8 was to the south of the defendants' property which was surveyed under old Cadastral survey No.75 and anything said by the Commissioner in that regard could not have been accepted. Shri Kolwalkar has further submitted that the suit of the plaintiff/s was filed at the stage of preparation of Form No.III and before promulgation and therefore no presumption as available under S.105 of Land Revenue Code could have been raised in favour of the defendants. Shri Kolwalkar has submitted that the plaintiff's possession of the disputed land was more than sufficient to maintain a suit for permanent injunction simpliciter and in this context Shri Kolwalkar has placed reliance on the case of Nair Service Ltd. v. K.C. Alexander and others (A.I.R. 1968 S.C. 1165). 10. On the other hand, Shri Lotlikar, the learned Senior Counsel on behalf of the defendants, has submitted that the plaintiff/s was required to establish his title before the plaintiff could succeed in a suit for injunction simpliciter. Shri Lotlikar has further submitted that the plaintiff had failed to prove the possessory title as well and therefore the suit could not have been decreed in favour of the plaintiff/s. In the case of Nair Service Society (supra) the Supreme Court has stated that:­ 9 “ It cannot be disputed that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title. ” 11. Admittedly, the defendants' property was surveyed and demarcated with the help of plan of old cadastral survey No.75 and the boundary marks, by the Commissioner with its southern and eastern boundaries as shown by letters 'A to K' on the plan of the Commissioner. The defendants had chosen not to cross­examine the said Commissioner and indeed had even pleaded in the written statement that the defendants had “never exercised any necessary acts to the south of the said land indicated by the said marks and shall not do so in future thereby infringing the right of the Comunidade”. In other words, it was the case of the defendants that to the south of their property was the property of the Comunidade in which the defendants had certainly no interest or right to interfere. On the other hand, it was the case of the plaintiff/s that his property “Borimol” extended on the northern side upto the property “Sanvorbhat” of the 10 defendants and this, according to the defendants, was from the time the plaintiff purchased their property from Vengtesh Pandu Porob and his wife by deed dated 6.2.1936. The plaintiff had stated that he was in possession of this property of his exclusively, continuously, openly for over 60 years. The defendants themselves had pleaded that the stone quarry which was in the land of the Comunidade was exploited by the plaintiffs and two more which were in the defendants' land beyond the said stone marks (A to G) were being exploited by the defendants. But the Commissioner had found that the stone quarries did not fall in the property of the defendants (surveyed under old cadastral survey No.75) but they fell in the property surveyed under old cadastral No.65 belonging to the Comunidade of Borim and some old stone quarries which were not under extraction were falling in the property of Ganba Porob and others as per old cadastral plan and according to the new survey plan the said stone quarries are situated within the property of the defendants (disputed part of survey No.29) and some part in survey No.28 (belonging to the plaintiffs). The defendants did not claim any right to the property having old cadastral Survey No. 65 belonging to the Comunidade. On the contrary, the Plaintiff does claim a right to the same as part of his property 'Borimol' having its northern boundary the said property “Sanvorbhat' of the defendants. If, as stated by the defendants, the stone quarry which was in the property of Comunidade (survey No.29) was exploited by the 11 plaintiffs, it only showed that the said portion was in possession of the plaintiffs as part of their property of which they came in possession by virtue of the sale deed dated 6.2.1936. The learned trial Court had rightly observed that the Comunidade itself was lying relaxed in case their property was usurped by the plaintiffs. Even assuming that the disputed portion of survey No.29 as shown by the Commissioner beyond the property of the defendants identified by letters A to K belonged to the Comunidade, the evidence on record shows that it is the plaintiffs who were in possession of the same as against the Comunidade as part of their property purchased by the plaintiffs by sale deed dated 6.2.1936 and the plaintiff being in possession of the same were certainly entitled to restrain the defendants from interfering with his possession based on the principle that the plaintiff in possession of a property on his own strength can resist interference from the defendants who had no better title than the plaintiff himself. As already stated, the suit was filed when survey proceedings were at their infant stage and the promulgation came about during the pendency of the suit and therefore the learned Addl. District Judge was wrong in drawing a presumption in terms of Section 105 of the Land Revenue Code in favour of the defendants. Consequently the substantial question of law reproduced hereinabove has got to be answered in favour of the plaintiff and as a result this Second Appeal deserves to succeed. 12 12.Consequently the Judgment/Order of the learned Addl. District Judge dated 30.8.1997 is hereby set aside and that of the learned trial Judge dated 20.3.1990 is restored and considering the facts, with no order as to costs. N. A. BRITTO, J. sl.