1 IN THE HIGH COURT OF BOMBAY T GOA FIRST APPEAL NO. 286 OF 2004 1. Smt. Rukmini Pauto Voilcar, widow of Pauto Voilcar, major of age, housewife, residing at H. No. 604, Molorem, Khola, Canacona, Goa 403 703 through attorney holder & son, Shri. Rama Pauto Voilkar, r/o Molorem, Cola, Canacona – Goa. 2. Shri Janu Pauto Voilkar, major of age, residing at H. No. 604, Molorem, Khola, Canacona, Goa 403 703. … Appellants V/s 1. Shri Ratnakar Vassudev Chari, s/o Vassudev Chari, major of age, landlord, residing at H. No. 608, Molorem, Khola, Taluka, Canacona, Goa 403 703. 2. Smt. Revati Shaba Velipo nee Jayu Purso Voilkar, major of age, housewife, and her husband; 3. Shri Shaba Fondu Velipo, major of age, agriculturist, both residing at H. No. 473, 2 Ghanem, Canacona, Goa. 4. Smt. Droupadi Purso Voilkar, widow of Purso Voilkar, major of age, landlady, residing at H. No. 852, Gonvol, Khola, Canacona, Goa 403 703. 5. The Government of Goa, through the Secretary, Forest Department, Panaji – Goa 403 001. 6. The Conservator of Forests, Junta House, Panaji, Goa 403 001. 7. The Deputy Conservator of Forests, South Goa, Margao, Goa. 8. The Range Forest Officer, Paddi, Quepem, Goa. … Respondents Mr. Anthony D'Silva, Advocate for the Appellants. Mr. Sudesh Usgaonkar, Advocate for Respondent No.1. CORAM : F.M. REIS, J. DATE : 29th JANUARY, 2011 JUDGMENT : The above appeal challenges the judgment and decree dated 30/08/2004 passed by the learned Additional District Judge - I, South Goa, 3 Margao in Civil Suit No.183/2004. The appellants are the defendants nos.5 & 9, the respondent no.1 is the plaintiff. Respondents nos.2,3 & 4 are the original defendants nos.6, 7 & 8. The respondents nos.5,6,7 & 8 are the defendants nos.1,2,3 & 4 in the original suit. 2. The respondent no.1 who is the plaintiff filed a suit against the appellants and the remaining respondents praying for a permanent injunction and for damages on the ground that he is the co-owner in possession of the property known as 'Gorgina' or 'Gorbata' situated in village of Molorem, Taluka Canacona, surveyed under no.186/26 of village Khola. It is further his case that the property stands in the name of Custam Malu Ferreiro alias Custam Malu Chari and Sanvlo Mono Ferreiro alias Sanvlo Mono Chari, both brothers and in view of the death of the said Sanvlo, who was the bachelor and without successors his share devolved upon his brother Custam. Said Custam expired leaving behind Malu Custam Chari as his sole successor and said Malu also died leaving behind Pandurang Malu Chari as his sole successor and said Pandurang died leaving behind Pandhari Pandurang Chari as his sole successor. The said Pandurang had four successors who have also expired and according to the respondent no.1 he is 4 the only son of Vassudev Pandurang Chari, who was one of the successors of the said Pandhari. It is further his case that the record of rights have been promulgated and that his name as well as of the co-owners are figuring in the survey records. It is further his contention that the suit property is enrolled in the matriz records under no.282 and that somewhere in March, 2000, the appellants and the other respondents trespassed in the suit property and fell three teak wood trees standing therein which forced them to file a complaint before the respondents nos.7 & 8. It is further his case that the licence for cutting the trees obtained by the appellant no.1 is not in respect of the suit property, but is pertaining to the property surveyed under no.186/33 which is claimed by the the said appellants and the respondents nos.2,3 & 4. According to the respondent no.1, the appellants and the respondents nos.2,3 & 4 have no right to the suit property and, consequently, after receiving a reply from the respondent no.7 to the effect that no licence has been issued to the appellant no.1 for felling trees of the property surveyed under no.186/26 i.e. the suit property, the suit came to be filed, inter alia, from restraining them from interfering in any manner with the suit property and to pay damages of Rs.30,000/- for the illegal felling of he trees. 5 3. The appellants and respondents nos.2,3 & 4 contested the suit by filing the written statement and according to them the suit is not maintainable as the respondent no.1 had no locus standi to institute the suit as he is not the owner of the property. It is further his case that towards the southern side of the property 'Gorgina' there lies the property of the appellants and the said respondents nos.2,3 & 4, which is known as 'Gorgina' or 'Gorbath' having matriz no.289 admeasruing 6,600 square metres and that only part of the said property has been recorded in the name of the appellants and the said respondents nos.2,3 & 4, and the other portion has been included in the property surveyed under no.186/26 of village Khola to the extent of an area of 2975 square metres. It is further their case that respondent no.1 has nothing to do with the said portion of the property and that they are in possession thereof and hence prayed that the suit be dismissed. 4. The learned Judge after framing the issues and recording of evidence has partly decreed the suit filed by the respondent no.1. The learned Judge has come to the conclusion that the respondent no.1 is the co-owner in possession of the suit property and directed that the value of the trees 6 deposited in the Court be paid to the respondent no.1. The learned Judge, as such, came to the conclusion that the appellants and respondents nos.2,3 & 4 are liable to be restrained from interfering in any manner with the suit property except the gada belonging to the appellants and respondents nos.2,3 & 4 in the suit property. On examination of the evidence on record, the learned Judge came to the conclusion that the appellants and respondents nos.2,3 & 4 had failed to establish that their property admeasures an area of 6,600 square metres and that an area of 2975 square metres has been wrongly included in the property surveyed under no.186/26. 5. Being aggrieved by the said judgment and decree, the appellants have preferred the present appeal. Shri Anthony D'Silva, learned Counsel appearing for the appellants has assailed the impugned judgment and submitted that the appellants have established that they are in possession of a part of the suit property which belongs to the appellants. The learned Counsel further submitted that entire case of the respondent no.1 was based on survey records which do not confer any title on the respondent no.1. The learned Counsel further submitted that survey records are erroneous as according to him part of their property is wrongly recorded in the name of 7 respondent no.1. The learned Counsel took me through the impugned judgment and pointed out that respondent no.1 admitted that he had no documents to show that Custam Malu Ferreiro is his ancestor and also admitted that he had no document to show that Sanvlo Mono Ferreiro alias Sanvlo Mono Chari is one and the same person. The learned Counsel further submitted that the report of the Commissioner can not be accepted as he had not identified the property on the basis of the title documents of the respective parties. The learned Counsel further pointed out that at para 11 of the impugned judgment, the learned Judge has come to the conclusion that respondent no.1 failed to show either that he is the owner of the suit property or as co-owner of the suit property and no documentary evidence to that effect was produced by the said respondent. But however, the learned Judge on the basis of survey records and the matriz certificate has come to the conclusion that respondent no.1 was in possession along with the other co- possessors of the suit property and that the appellants and respondents nos.2,3 & 4 have no right to the suit property. The learned Counsel, as such, submitted that once title has not been established the question of granting permanent injunction as against the appellants would not arise. The learned Counsel further submitted that the findings of the learned Judge would affect 8 any substantive suit or any other proceedings which may be initiated by the appellants to establish their title over the disputed portion of the property. He, accordingly, submitted that the appeal deserves to be allowed. 6. On the other hand, Shri Sudesh Usgaonkar, learned Counsel appearing for respondent no.1 has supported the impugned judgment. He pointed out that though the learned Judge has come to the conclusion that the title of the respondent no.1 has not been established, nevetheless, the learned Judge has granted the injunction on the basis of the possession established by respondent no.1. Learned Counsel further submitted that even assuming that title has not been established, a person is entitled for an injunction to protect his possession against another person who has no title to remain in such possession. In support of his submission, learned Counsel relied upon the judgment reported in 2004 (1) SCC 769 in the case of Rame Gowda (dead) by LR's V/s. M. Varadappa Naidu (dead) by LR's & Anr. Learned Counsel further submitted that the claim of the appellants to the effect that part of the property surveyed under no.186/26 belongs to the appellants has not at all been established by any documentary evidence nor has any plan been produced to substantiate such claim on the part of the appellants. The 9 learned Counsel further submitted that, as such, no interference is called for in the impugned judgment. 7. Having heard the learned Counsel and on perusal of the record, the following points for determination arise in the appeal: POINT FOR DETERMINATION (i) Whether the learned Judge was justified to grant the permanent injunction restraining the appellants and the respondents nos.2,3 & 4 permanently from interfering in any manner in the suit property, except the gada existing therein. (ii) Whether the learned Judge was justified to direct the payment of the amount deposited in favour of the respondent no.1 with interest accrued thereon. 8. Having heard the learned Counsel and on perusal of the records, I find that the learned Judge has come to the conclusion that the respondent no.1 has failed to establish his exclusive ownership or co-ownership title over the suit property. In fact on perusal of the records, I find that there is no documentary evidence adduced by respondent no.1 to establish his claim of title over the suit property. But, however, on the basis of the survey records 10 as well as the evidence of the witnesses examined by the respondent no.1 which have been referred to by the learned Judge in the impugned judgment, the learned Judge was justified to come to the conclusion that the respondent no.1 has established that respondent no.1 and other co-possessors were in possession of the suit property. The learned Judge has also come to the conclusion that there was a gada which was located in the suit property which was being occupied by appellant no.1 and to that extent the injunction has been restricted to the area beyond the said gada. The findings of the learned Judge on the basis of material on record considering that the appellants have failed to adduce any evidence to substantiate their claim that they were in possession of the suit property except the said gada, cannot be faulted. There is no evidence adduced by the appellants to establish the extent of their claim in the suit property. But, however, considering that admittedly the appellants were having the gada in the suit property and as the appellants were putting up a claim over the part of the suit property on the basis of their claim of title which they failed to establish, the learned Judge was not justified to grant the permanent injunction in the manner so granted in the impugned judgment. The Apex Court in the said judgment in 11 the case of Rame Gowda (dead) by LR's (supra) has held at paras 8 and 11 thus: “8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. 11. In the present case the trial court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The trial court and the High Court have rightly decided the suit. It is still open to the defendant- appellant to file a suit based on his title against the plaintiff- 12 respondent and evict the latter on the former establishing his better right to possess the property.” 9. On perusal of the said judgment of the Apex Court, even assuming that respondent no.1 who was the plaintiff in the suit has failed to prove his title, if he succeeds to prove his possession over the suit property, such possession can be protected, unless he is dispossessed otherwise then in due process of law. An injunction on such lines can always be granted by keeping the issue of title open. 10. In the present case, the learned Judge while passing the impugned judgment has come to the conclusion that the respondent no.1 has failed to establish that he was the owner and/or co-owner of the suit property. The learned Judge also came to the conclusion that the appellants and respondents nos.2,3 & 4 have also failed to establish their title over the suit property. Nevertheless, on the basis of the survey records and considering the other material on record, the learned Judge came to the conclusion that the respondent no.1 was in possession of the suit property. As the respondent no.1 has failed to establish by cogent evidence his title over the suit property, the question of granting a permanent injunction from 13 interfering with the suit property would not arise. The learned Judge, however, would be justified to grant the injunction restraining the appellants and respondents nos.2,3 & 4 from interfering with the possession of the appellants in respect of the suit property, otherwise then by due process of law except the gada as mentioned in the impugned judgment. The issue of title would have to be kept open and both the parties would be at liberty to file appropriate proceedings to establish their respective title and obtain appropriate reliefs on the basis of their respective claims. The evidence on record establishes that the appellants have failed to adduce any evidence to establish their claim of possession over the suit property except the said gada. 11. Keeping the issue of title open, I find that the learned Judge ought to have granted the injunction restraining the appellants and respondents nos.2,3 and 4 from interfering with the possession of the respondent no. 1 over the suit property, otherwise then due process of law, except the said gada referred to in the impugned judgment. As the respondent no.1 has been held to be in possession of the suit property, the learned Judge was justified in directing the payment of the amount deposited as the value of the trees in 14 the Court to be paid to the respondent no.1. The points for determinations are answered accordingly. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and decree is modified to the extent that the appellants and respondents nos.2 to 4 are restrained by a permanent injunction from interfering with the possession of the respondent no.1 over the suit property except the gada existing therein, otherwise then due process of law. (iii) The respondent no.1 would be entitled to collect the amount of Rs.23,500/- as decreed in the impugned judgment deposited before the learned Trial Judge along with accrued interest. (iv) The issue of title of both the parties is left open to be adjudicated in appropriate proceedings. (v) The parties would be at liberty to file appropriate proceedings to establish their respective title over the suit property in accordance with law and the findings arrived at in 15 the present proceedings would not come in the way of both the parties in filing such proceedings. (vi) Defences of both the parties in any such proceedings are left open. (vii) The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-