IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 40 OF 1998 Mrs. Gocul B. Naik, wife of Bhisso Naik, (since deceased), through her legal representatives: 1. Mr. Chandrakant B. Naik, son of Bhisso Naik, major of age, resident of Tarvalem, Shiroda. 2. Mr. Ratnakar B. Naik, son of Bhisso Naik, major of age, resident of Tarvalem, Shiroda. 3. Mrs. Proful Naik, wife of Chandrakant Bhisso Naik, major of age, resident of Tarvalem, Shiroda. 4. Mrs. Prita Ratnakar Naik, wife of Ratnakar Bhisso Naik, major of age, daughter-in-law of deceased. ... Appellants/ Original Defendants. VERSUS 1. Mr. Sonso Chudu Naik, son of Chudu Naik, major of age, agriculturist, resident of Tarvalem, Shiroda. 2. Mrs. Laxmi Sonso Naik, wife of Sonso Chdu Naik, major of age, housewife, resident of Tarvalem, Shiroda. ... Respondents/ Original Plaintiffs. Mr. S.D. Lotlikar, Senior Advocate with Ms. S. Naik, Advocate for the Appellants. Mr. M.S. Usgaonkar, Senior Advocate with Mr. Sudesh Usgaonkar, Advocate for the Respondent No.1. CORAM: CORAM: CORAM: N.A. BRITTO, J. N.A. BRITTO, J. N.A. BRITTO, J. -- 2 -- DATE FOR RESERVING THE JUDGMENT: 8.7.2004 DATE FOR PRONOUNCING THE JUDGMENT:16.7.2004 J U D G M E N T: This Second Appeal is by the defendants in R.C.S. No. 38/1979/A. 2. The dispute between the parties is regarding a property known as "Gorbatta Parte" or "Gorbatta Tocximo" having Land Registration No. 6253 and a house situated therein, admittedly occupied by the defendants. 3. The parties hereto shall be referred to in the names as they appear in the cause title of the suit. As far as the property is concerned, there is no dispute that once upon a time it belonged to the common ancestor of the plaintiffs and the defendants by name Ragu Appa and it came to be divided by virtue of a Deed dated 27th November, 1894 and as per the said Deed each of the belowmentioned persons came to have 1/3 share to the said property :- (a) Appa Ragu Naik and wife Savitri; (b) Budo Chadu Naik alias Bodko and wife Laxmi; (c) Yessodi Naikini alias Onay, widow of Bisso Mosno Naik alias -- 3-- Bombo. 4. The plaintiff No.1 is the paternal grandson of the said Bodko/Laxmi while defendant No.1 is the great grandson of the said Yessodi/Bisso. 5. The plaintiffs filed the suit for eviction of the defendants from the suit house alleging that the suit house was an old structure belonging to the family of the plaintiffs which was allowed for the residence of the ancestors of the defendants and which house was abandoned by the family of the defendants about the year 1925 (50 years prior to 1975). The plaintiffs pleaded that somewhere in the month of November, 1975 the defendant No.1 repaired the suit house without the permission of the plaintiffs and subsequently in the year 1977 started occupying the same and the plaintiffs objected to the said illegal act of the defendant No.1 and even lodged complaint to the Village Panchayat of Shiroda and the defendants in the year 1977 extended the suit house without the consent or permission of the plaintiffs. The case of the plaintiffs was that the defendants had no right whatsoever to extend the said house nor the defendants have any right to occupy the same and the defendants are mere trespassers illegally occupying the said house with its extensions and therefore the plaintiffs were entitled to evict the -- 4 -- defendants from the said house and from the extension made to it. 6. As far as the suit property was concerned, it was the case of the plaintiffs that the suit property was partitioned by metes and bounds and the said Yessodi was enjoying the land equivalent to 1/3 share and forming the eastern strip of the property and the other co-owners were enjoying the remaining land forming the western portion equivalent to 2/3 share approximately and that the 1/3 share which was being enjoyed by the said Yessodi was presently surveyed under Nos.399/7 and 394/14 and the remaining 2/3 enjoyed by Appa Ragu Naik and the said Bodko was surveyed under Nos.399/6 and 394/8. 7. The plaintiffs stated that the said Appa and his wife expired about 70 years back without any male issues and their shares were enjoyed by his brother the said Bodko alias Budo who is paternal grandfather of plaintiff No.1 and the said Budo and his wife Laximi died sometime about 55 years back and the share of Appa and the said Bodko was then enjoyed by Bodko’s only son by name Chadu who is the father of the plaintiff No.1. The plaintiffs stated that the said Chadu and his wife Anandi died in the year 1973 and 1978 respectively and in the Inventory proceedings initiated after their -- 5 -- death, 2/3 share of the said property originally belonging to the said Apa Ragu Naik and the said Bodko was allotted to the plaintiffs by Order dated 16.7.1978. The plaintiffs further stated that 1/3 share of the said Yessodi was sold by her son Moshno B. Naik and his wife by deed dated 16.3.1907 to one Joao Avelino Rodrigues of Shiroda and this 1/3 part was subsequently separately registered under Inscription No.11631. The plaintiffs stated that the suit house is situated in Survey No.394/8 wherein there is also a residential house of the plaintiffs and a temple raised by the plaintiffs. 8. As far as the suit house is concerned, it was the case of the defendants, that they are residing in their own ancestral house from times immemorial in which defendant No.1 was born and brought up and has been living with his family and prior to that all his ancestors lived and occupied and maintained the said house as their own to which the plaintiffs had no right, title or interest of whatsoever nature. The defendants stated that the said temple was constructed by the plaintiff No.1 about 7 to 8 years back with prior consent of defendant No.1 and other heirs and others interested in the said property being the husband of Smt. Xanu Surya Naik and Maghu Babuso Naik. The defendants denied that the suit house belonged to -- 6 -- the plaintiffs and further stated that they were residing therein from the time of their ancestors as a matter of right and the same being their own have been regularly repairing and maintaining the same exclusively at their own cost. As far as the property was concerned the defendants stated that the said Appa Ragu Naik, Bodko Chadu Naik and Bhiso Moshno Naik were cousin brothers and the said Yessodi was the wife of the said Bhiso and all of them during their lifetime enjoyed the said property in common without any specific division or partition of the same by metes and bounds. The defendants stated that the said Yesodi Naik never enjoyed her share separately nor did the said Appa Ragu Naik and Bodko Chadu Naik as falsely alleged by the plaintiffs. The defendants also denied that the survey numbers corresponded to the alleged properties or the parts mentioned by the plaintiffs. The defendants stated that the entire property as on date stood as one unit and the same has been possessed and enjoyed exclusively by the ancestors of the defendants in common and after their death the same property in similar circumstances is being possessed and enjoyed by the father of the defendants without any specification of share and till now it remains as ancestral undivided common property. 9. The defendants stated that the Inventory -- 7 -- proceedings could not have taken place in defiance of the rights of the defendants and those of Smt. Xanu Surya Naik and Smt. Mogu Babuso Naik and therefore the said proceedings were null and void for which the defendants would seek necessary reliefs. 10. The defendants filed a counter claim inter alia praying that the Inventory proceedings No.44/77 be declared as null and void. 11. The learned Trial Court by its judgment dated 11.1.88 came to the conclusion that the defendants had proved that they had 1/3 right to the suit property and that they were the co-owners in possession of the suit property. The learned Trial Court also came to the conclusion that the plaintiffs were not entitled to evict the defendants from the suit house and that the defendants were entitled for the relief claimed by them in the counter claim and consequently proceeded to dismiss the suit filed by the plaintiffs and allow the counter claim with costs. 12. The first appellate Court by its judgment dated 29.8.1998 came to the conclusion that the defendants were not in possession of the suit house prior to 1975 and that the defendants had not proved their title in respect of the suit property or the suit house and -- 8 -- therefore they had no tittle of title to remain in possession. The learned first appellate Court further held that the plaintiffs had proved that they were the owners of 1/3 part of the property and were in possession of the remaining 1/3 share which originally belonged to Appa Naik and his wife and since the plaintiffs were in long, anterior and peaceful possession were entitled to maintain their possession against all except the true owner or against the person who has (sic no) better title. The learned first appellate court also observed that the possession of the defendants was unlawful and hence the same could not be protected and therefore proceeded to decree the suit and dismissed the counter claim. 13. This Court had admitted this appeal by Order dated 19.2.1999 on questions (b), (c), (d), (e) and (f) as framed by the defendants in their memorandum of appeal. But at the time of arguments, it has been submitted on behalf of the said defendants that answers to questions (e) and (f) would be sufficient to decide the present Second Appeal. The said questions read as follows :- " (e) Whether an admission can be used against a party making it only after it is confronted with the -- 9 -- said admission and/or cross examination in respect of the said admission. (f) Whether the finding recorded by the First Appellate Court, that the possession of the Appellants in respect of the suit house was unlawful, is perverse being without any basis in the evidence. " I therefore proceed to answer question (f) first. 14. It is well settled that normally concurrent findings of fact cannot be interfered with in Second Appeal, as stated by the Supreme Court in the case of Sheel Chand v. Prakash Chand Sheel Chand v. Prakash Chand Sheel Chand v. Prakash Chand (1998) 6 S.C.C. 683 but perversity, illegality or irregularity with the concurrent findings can be dealt with in Second Appeal. In the case of Kochukakkada Aboobacker (dead) by L.Rs. Kochukakkada Aboobacker (dead) by L.Rs. Kochukakkada Aboobacker (dead) by L.Rs. and others v. Attah Kasim and others and others v. Attah Kasim and others and others v. Attah Kasim and others (1996) 7 S.C.C. 389 the Supreme Court has held that where the Trial court and the first appellate court did not consider relevant documents in proper perspective and effect of those documents on the rights of the parties, the High -- 10 -- Court is entitled to reconsider the evidence by drawing inferences from the admitted documents. 15. In the case at hand the learned Trial Court came to the conclusion, upon consideration of the documents, produced by the defendants, that the defendants had established their right to the suit house being exclusive owners thereof. However, the first appellate court came to the contrary conclusion that the defendants had not proved title to the suit house nor had proved that they had tittle of title to remain in possession. The learned first appellate court, in my opinion, brushed aside the documents produced by the defendants which had totally rebutted the case pleaded by the plaintiffs or sought to be proved by them. 16. The plaintiffs had pleaded that the suit house belonged to the family of the plaintiffs which was allowed to be used for the residence of the ancestors of the defendants, but had not specified as to which ancestor of the plaintiffs had allowed which ancestor of the defendants to reside therein. P.W.1 Sonso who had stepped into the witness box to substantiate the case of the plaintiffs, did not even corroborate the averments made in the plaint, but on the contrary, had stated that the defendants came in the year 1969 and -- 11 -- scolded his children who were there and thereafter in the year 1977 (and not in the year 1975 as pleaded) came and constructed an extension, and, probably it is then that the defendants started occupying the suit house. The plaintiffs had not pleaded nor it was the case of P.W.1 Sonso in his evidence that the plaintiffs were ever in possession of the suit house after the defendants allegedly abandoned the same in the year 1925 or thereabout. If some persons close their house belonging to them and go to a neighbouring town either to pursue their studies or in search of jobs, they certainly do not abandon their house. In the absence of any claim for possession having been made by the plaintiffs to the suit house, the learned first appellate court was wholly unjustified to accept the statements of P.W.2 Francisco to the effect that the plaintiffs were storing palm leaves in the suit house or for that matter the statement of P.W.3 Jose to the effect that the plaintiffs used to store firewood in the same. Apart from other oral evidence produced by the defendants, the defendants had produced Form No.III at Exh.PW.1/A3 which showed that the suit house was shown in the name of Bisso Ragu Naik. The learned first appellate court rightly observed that the said survey records showed that the defendants were in possession of the suit house considering the fact that the survey was conducted in 70s. In fact, it is common -- 12 -- knowledge now that survey was conducted in early 70s. The learned first appellate court rightly observed that the presumption was that the defendants were in possession of the house when the survey was conducted, but the learned first appellate court failed to note that this possession had entirely demolished the case of the plaintiffs that the defendants had ever abandoned the suit house and on the contrary showed that they had continued to be in possession of the same. The defendants had also produced panchayat tax receipts particularly for the year 1974 onwards. The learned appellate court observed that the said receipts cannot be proof of title. However, it is to be noted that the defendants had categorically stated that they have been paying the house tax to the Panchayat right from its inception while the plaintiffs had conceded that they had never paid the house tax in respect of the suit house. The said house tax receipts per se might have not been proof good enough in support of the defendants’ title to the suit house, but certainly they were more than sufficient to corroborate the claim made by the defendants and to rebut the claim of the plaintiffs. The defendants had also produced a legal notice sent by P.W.1 Sonso dated 24.5.1977. The learned first appellate court observed that the defendants did not confront P.W.1 Sonso with the said notice nor proved that what was stated in the said -- 13 -- notice was as per the instructions of the plaintiffs. I fail to understand as to how the learned first appellate court could have made the said observations when P.W.1 had clearly admitted in his cross-examination that he had sent a legal notice to the defendant No.1 through his Advocate Shri Menezes and not only that, whatever was stated in the said notice was correctly stated. It is only after it was brought to his notice that in the said notice dated 24.5.77 it was stated that defendant no.1 was residing as a mundcar, that P.W.1 Sonso tried to wriggle out from the situation and stated that although the notice was sent as per his instructions, he did not tell his Advocate that the defendant No.1 was staying as mundcar. It is sought to be contended on behalf of the plaintiffs that it is not the case of the defendants that they are residing in the suit house as mundcars. It may not be their case, but the fact remains that the said statement made on behalf of the plaintiffs in the said notice was sufficient to destroy the very case pleaded by the plaintiffs and sought to be proved on their behalf. It was pertinent tonote that the plaintiffs in the said notice did not even call upon the defendants to vacate the suit house. The said documents produced on behalf of the defendants were more than sufficient to support the claim of the defendants as against the claim made by the plaintiffs -- 14 -- that it is the defendants who were in possession and in occupation of the suit house as their own. In other words, the defendants had sufficiently proved that they were in lawful possession of the suit house from the time of their ancestors. In fact a belated attempt was made by P.W.1 Sonso to say that the suit house was built by his grandfather without pleading this fact in the plaint which statement of his was not otherwise supported by any of the witnesses of the plaintiffs or any document produced by the plaintiffs. P.W.1 Sonso even admitted in his cross-examination that he had told his Advocate that defendant No.1 was coming to the suit house once in a year and staying there, thereby demolishing the entire case pleaded by him and sought to be proved by him, The findings of the learned first appellate court that the defendants started residing in the suit house only from the year 1975 was wholly unjustified. In fact P.W.1 Sonso had stated in his evidence that the defendants had started residing in the suit house in the year 1977 and not in the year 1975 as was otherwise pleaded by the plaintiffs. The oral and documentary evidence produced by the defendants clearly showed that the Defendants were residing lawfully in their ancestral house belonging to them. 17. Having realised that the defendants have been -- 15 -- residing lawfully in their own ancestral house, Mr. Usgaoncar, the learned senior counsel of the plaintiffs submits that the suit house has got to be considered as an integral part of the property and cannot be divested from it. Shri Usgaoncar next submits that the defendants would have been able to resist heir eviction only in case they had claimed and proved to be mundcars or tenants or by way of adverse possession and having not done the same, and the plaintiffs having proved that they are exclusive owners of the suit property, eviction ought to follow. Shri Usgaoncar has referred to Section 3(26) of the General Clauses Act 1897 which defines "immovable property" so as to include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. Shri Usgaoncar has further submitted that the suit house had no distinct identity apart from the property in which it is situated and once it is held proved that the property belonged to the plaintiffs, a decree of eviction from the suit house should follow. Shri Usgaoncar has also placed reliance on the case of Indira v. Arumugam and another Indira v. Arumugam and another Indira v. Arumugam and another (A.I.R. 1999 S.C., 1549) wherein the Supreme Court has stated that the plaintiffs could not be non-suited unless the defendant proves adverse possession for prescriptive period. The said observations were made in connection with Art.65 of the Limitation Act, 1963. Shri -- 16 -- Usgaoncar has also referred to Art.375(1) of the Civil Code, 1860 which reads as follows :- " Immovables by operation of law :- (1) The produce and integral parts of the land and the integral parts of buildings, which cannot be separated without detriment to the beneficial enjoyment which they offer, except when they are separated by the very owner of the property. " 18. I do not think that it is necessary to deal with the above submissions of Shri Usgaoncar, the learned senior counsel, in view of the findings given by the learned first appellate court regarding the dispute as far as the ownership of the property is concerned, which findings I have no option but to endorse though I am of the view that separate ownership of building and the land on which it is situated is possible and permissible. The defendants did claim that they are co-owners of the entire property "Gorbata" which, as already stated, admittedly belonged to Appa Ragu Naik/Savitri, Budo alias Bodko Chadu Naik/Laxmi and Yessodi alias Onay Naik/Bhiso alias Bombo Mosno Naik. The learned first appellate court upon consideration of the documentary evidence produced by the plaintiffs has rightly concluded that (1) the -- 17 -- property was partitioned amongst original owners by partition deed dated 27.11.1894 vide Exh.PW1/A and (2) by deed dated 16.3.1907 viide Exh.PW1/A2 1/3 share of Yessodi/Bhisso was sold to Joao Rodrigues, the grandfather of PW.2 Francisco which was separately registered under No.11631 which fact was confirmed by P.W.2 Francisco. 19. The plaintiffs had clearly pleaded that the shares of Yessodi/Bhiso was 1/3 forming the eastern strip of the property. The plaintiffs had further pleaded that the said share of 1/3 of Yesodi/Bhiso was presently surveyed under Nos.397/7 and 394/14 of village Shiroda and the remaining 2/3 share of the said Appa/Savitri and Bodko/Laxmi which were being enjoyed by the said Appa and Bodko were surveyed under Nos.399/6 and 399/8. P.W.1 Sonso in his evidence also stated that the property enjoyed by Bodko and Appa was surveyed under Nos.394/8 and 399/6 and not only that even produced the survey records showing the name of plaintiff no.1 in the occupants column in respect of the said two survey numbers. The said position was not contested by the defendants. Thhe first appellate Court has rightly concluded that the evidence on record, more particularly the Land Registration Certificate (Exh.PW.1/A2) and the evidence of P.W.2 Francisco was sufficient to prove that the son of the -- 18 -- said Yessodi had sold their 1/3 share to Joao Rodrigues and therefore the defendants could not claim any right or title to 1/3 share of the said Yessodi/Bhiso. It was contended on behalf of the defendants, as far as the partition deed dated 27.11.1894 (reflected in Exh.PW.1/A) was concerned, that it was not in fact a deed of partition, but a deed executed only for the purpose of registration of the property which was otherwise not registered. The said deed shows that it was executed for the purpose of possessing their respective shares and for paying the corresponding lease rent and therefore the submission made on behalf of the defendants cannot be accepted. Moreover, it can be seen that what was then divided was subsequently surveyed and particularly as far as 1/3 of the said Yesodi/Bhiso was concerned under Survey Nos.399/7 and 394/14 and the remaining 2/3 of Appa/ Savitri and Bodko/Laximi were surveyed under Nos.399/6 and 394/8. It was not the case of the plaintiffs that the said Appa/Savitri had no heirs at all or upon their death they had inherited 1/3 portion belonging to them. The case of the plaintiffs was that the said Appa/Savitri did not have any male issues and, on the other hand, the defendants had shown that the said Appa and Savitri had two daughters who were married namely Mogu B. Naik and Tulsi Naik. It is therefore obvious that as far as 1/3 share