… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 74 OF 2000 1. Shri Dattaram Bhiku Warang, S/o Bhiku Warang,of full age since dec. by Lrs. 1a. Devidas Dattaram Warang Son of Shri Dattaram B. Warang and His wife 1b. Usha Devidas Warang, Both residents of Modlem Bhat, Siolim, Bardez-Goa 1c. Kunda Sunil Chandelkar Daughter of Shri Dattaram B. Warang and her husband. 1d. Sunil Chandelkar Both r/o. Hare Ram Hare Krishna Building, Adarsh Colony, Khanapur District Belgaum, Karnataka. 1e. Maya Mahesh Parab Daughter of Shri Dattaram B. Warang and Her husband 1f. Mahesh Parab, Both r/o Catambi, Pali, Bicholim-Goa. 1g. Sindu Sanjai Naik Daughter of Shri Dattaram B. Warang and Her husband 1h. Sanjai Naik Both resident of Naik Wada, Paliya, Pernem Taluka 1i. Preeta Pradeepa Kolhapurkar Daughter of Shri Dattaram B. Warang and Her husband … 2 … 1j. Pradeepa Kolhapurkar H.No.298/2 Vandamal Velguem- Goa. 2. Smt. Sumati Dattaram Warang, W/o. Dattaram B. Warang, of full Age, Both r/o.Modlem Bhat, Siolim, Bardez-Goa. .. Appellant. Versus 1. Shri Yeshwant Hari Warang (since deceased) S/o. Hari Warang, of full age, R/o. Modlem Bhat, Siolim, Bardez-Goa 1(a) Yeshodi Yeshwant Warang wife of the deceased major, resident of Modlem Bhat, Siolim, Bardez, Goa. 1(b) Shri Dasharath S. Naik, Son-in-law of the deceased, Major, 1(c) Smt. Shevati D. Naik, daughter of the deceased, Both residents of Dados Wado, Mandrem, Goa. 2. Shri Tukaram Vishram Warang 3. Shri Hari Vishram Warang 4. Shri Dinesh Vishram Warang All residents of Siolim, Bardez, Goa. .. Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. K. B. Surjuse, Advocate for the appellants. Mr. Sudin Usgaonkar with Ms. A. Pereira, Advocates for the respondents. … 3 … CORAM :- U. D. SALVI,J. RESERVED ON : 12 th August, 2010. PRONOUNCED ON : 3rd September, 2010. JUDGMENT : This second appeal throws challenge to the judgments and decrees dated 20.09.1996 and 16.06.2000 passed by the learned CJSD, Mapusa in RCS No.349/1984/A and the learned Additional District Judge at Panaji in RCA No.62/1996 respectively for granting relief of demarcation of the suit property in-loco, its possession and permanent injunction restraining interference or obstruction to the plaintiff's possession or enjoyment of the suit property. 2. The deceased respondent, now represented by his L.Rs., instituted a suit for demarcation, possession and perpetual injunction being Regular Civil Suit No.349/1984 against the deceased appellant Dattaram Warang and his wife Sumati in the Court of the CJSD, Bardez at Mapusa on 23rd November, 1984. It was in respect of middle portion, admeasuring 937 square meters, of the property popularly known as 'MODULEM BHAT' or 'URYACHO PATTO' surveyed under survey no.177/4 of village Siolim Dongormar belonging … 4 … to one Minguel Antonio Fernandes and his wife Maximiana. Boundaries of the said property Modulem Bhat were as under : East - Paddy field of the heirs of Caetano Francisco D'Cunha West - Property of Marcelino Fernandes developed at present as a road of Gram Panchayt Siolim-Marne. North- Property of Warang family. South- Property of heirs of Vincentinho Noronha The middle portion having boundaries and dimensions as under : East - First plot belonging to the vendors having dimension of 27 meters, West - Third plot belonging to the vendors having dimension of 29.80 meters North- Residential house of Uttam Warang having dimension 32.90 meters. South- A strip of land 2 and ½ meters in width reserved by the Vendors as an access to the said three plots having dimension 32.60 mts. was purchased by the deceased Yeshwant Warang - the plaintiff from the said Minguel Fernandes and Maximiana Fernandes by deed of sale dated 13th September, 1971registered in the office of … 5 … the Sub-Registrar of Bardez under No. 4889, Book No.I Volume 55, Pages 127 to 131. A deed of rectification dated 4th October, 1971 clearly defining the boundaries and dimensions of the middle portion sold to the deceased Yeshwant was duly executed and registered in the office of the Sub-Registrar of Bardez under No.4951 of Book I Volume 56, pages 133 to 136. 3. In the year 1972, the deceased Yeshwant instituted a suit for declaration of his ownership in respect of the property purchased as aforesaid, hereinafter referred to as the suit property, against the deceased appellant Dattaram Warang in the Court of CJSD of Bardez. He also prayed for restoration of land occupied by haystack and temporary structure and for perpetual injunction protecting his possession. He also prayed for mandatory injunction directing the deceased appellant to remove a fence put up around the Banana trees. This suit was registered as RCS No.11/1972. The learned Civil Judge,SD, Bardez dismissed the said suit vide judgment and decree dated 14th March, 1978. In the appeal i.e. Regular Civil Appeal No.129/1978 preferred before the District Court against the judgment and … 6 … decree of dismissal of the said suit, the District Court declared the plaintiff – the deceased Yeshwant Warang as the lawful owner of the middle plot purchased by him and admeasuring as per the dimensions given in the deed of rectification dated 4th October, 1971. The District Court, however, rejected the prayer for restoration of the possession, mandatory injunction without prejudice to the plaintiff's right to file another suit for the same relief after getting the plot purchased by him duly demarcated. 4. According to the deceased plaintiff- Yeshwant Warang, the defendants' act of putting up of fencing around the western strip of the suit property, admeasuring 11.40x 29.8 meters, some six months prior prompted him to institute the said suit being RCS No.349/1984 for demarcation, possession and perpetual injunction. He pleaded that in the remaining portion of the suit property, he has his cowshed, 11 coconut saplings, 2 teak trees and two banana trees; and the defendants' house was situate to the northern side of the third plot and the dividing line between the third plot and middle plot was in continuation with line dividing the houses of the defendants and the plaintiff's and his two brothers, and the suit property needs to be … 7 … demarcated with consequent recovery of the possession of the suit strip. 5. The defendants – deceased respondent No.1 Dattaram and his wife Sumati resisted the said suit with separate written statements dated 8th July, 1985. They disputed the boundaries and descriptions of the suit property and denied the ownership of the plaintiff in respect thereto by virtue of the sale of the suit property by one Minguel Fernandes. As regards the dimensions, they expressed ignorance. According to them, there was/ is no property in the locality with the boundaries as mentioned by the plaintiff, and the property as described is not known as Modulem Bhat. According to them, Modulem Bhat never belonged exclusively to Minguel Antonio Fernandes and his wife Maximiano and as such, the land in question could not have been sold by them to the plaintiff. The defendant No.1 – the deceased Dattaram contended that adjacent to the properties of the Warang's family, there are properties belonging to claimant Fernandes and Maria Henrique's, in hands of Maria Ernestina Fernandes, who had promised to sell both the properties to the Warang family; and the Warangs as mundkars of the said two properties were having their cowsheds, haystacks, … 8 … banana trees and other structures therein. He further contended that as per the measurement given by the plaintiff, the alleged purchased plot does not fall within the survey no.177/4 and the sketch annexed to the plaint is fraudulent. He also took exception to the said suit on the ground of non- joinder of necessary parties namely the heirs of Minguel Fernandes and others – the vendors of the suit plot whom the plaintiff claims to be the original owners. Exception to the suit being barred by res judicata and law of limitation were also raised by the defendants. 6. Admission of this appeal saw framing of the following Questions as substantial questions of law : a) Whether liberty granted in the judgment of the Court passed in an earlier suit to institute a new suit for the same reliefs, as was sought in the earlier suit, can now (i) extend the period of limitation for filing the suit; (ii) preclude the raising of the plea of res- judicate in defence. b) Whether in view of the Judgment and Decree dated 10.9.84 in Civil Appeal No.129/78 of the District Judge giving liberty to the Plaintiff … 9 … after getting the plot purchased by him duly demarcated, the plaintiff can institute the new suit for the same relief without getting the plot demarcated and without identifying the alleged encroachment in any plan or sketch, as required under Order 7 Rule 3 of C.P.C. ? c) Whether prayer for restoration of possession by way of removal of alleged encroachment could be granted when the Court comes to a finding that the plaintiff has failed to establish such encroachment ? d) Whether there is scope for passing a preliminary decree in a suit for demarcation, possession and perpetual injunction ? 7. Learned Advocate Lotlikar for the appellants/ defendants submitted that for want of identification of the suit property the relief of possession was dismissed initially, and the First Appellate Court – District Judge, Panaji,Goa while disposing of the Civil Appeal No.129/1978 could not have granted permission to file a fresh suit for demarcation; and even if such 'liberty' was granted, legally speaking such 'liberty' could not have been availed of in the latter suit for demarcation instituted by the plaintiff. Moreover, he argued, the suit for demarcation is not maintainable against the encroacher, and the adjoining owners of the plot in question … 10 … were the necessary parties to such suit. In any event, he further argued, the finding in the previous suit between the plaintiff and the deceased defendant No.1 as regards the ownership of the suit property could not have been used against the wife of the deceased defendant Sumati, who was not party to the earlier suit. Unfortunately, he submitted, the two Courts below had placed reliance on the judgment of the First Appellate Court previously passed to conclude that the respondents are the lawful owners of the middle portion of the property. In his view, the rejection of the prayer for possession in the previous suit ought to result in the bar of res judicata in the present suit for the same relief. In his view, the substantial questions framed at the time of admission of the present appeal ought to be answered negatively. 8. Learned Advocate Sudin Usgaonkar for the respondents submitted that the suit instituted by the plaintiff was a suit for demarcation under Article 2340 of Portuguese Civil Code, a provision in Portuguese Civil Code which survived the consequence of extension of Code of Civil Procedure, 1908 to the territory of Goa by virtue of Section 4 of the Goa, Daman and Diu (Extension of the Code of Civil … 11 … Procedure and Arbitration) Act, 1965. Referring to the judgment of the Hon'ble Apex Court delivered in Kondiba Dagadu Kadam's case (AIR 1999 SC 2213- Kondiba Dagadu Kadam Vs. Sawitribai Sopan Gujar and Ors.) he submitted that the concurrent finding of the facts, as in the present case, howsoever erroneous, cannot be disturbed by the High Court in exercise of the powers under this Section and the substantial question of law has to be distinguished from substantial question of fact. To buttress this submission, he further placed reliance on the judgment reported in AIR 2000 SC 426- Ishwar Dass Jain (dead) through LRs. Vs. Sohan Lal (dead) by LRs. 9. Learned Advocate Usgaonkar for the respondents further submitted that none of the questions framed as substantial questions have anything substantial therein inasmuch as nothing turns on them in the present case. As regards the first question, he submitted, when there was concurrent finding of the Lower Courts that the respondent/ plaintiff had title to the suit lands on the basis of relevant documents, the plaintiff can not be non-suited unless the defendants show and prove that their possession of the suit property had become adverse to the plaintiff, and the … 12 … limitation in such case would start under Article 65 of the Limitation Act, 1963 from the date of claiming adverse possession. Such being not the case, the issue of suit getting barred by the Law of Limitation would not arise. He invited the attention of the Court to the judgments reported in AIR 1991 SC 395; Smt. Gitarani Paul Vs. Dibyendra Kundu @ Dibyendra Kumar Kundu; AIR 1999 SC 1549; Indira Vs. Arumugam and another. As regards the exception to the said suit on the plea of res judicata, he submitted that in the previous suit, the issue of possession had remained undecided for want of demarcation. The learned District Judge, North Goa at Panaji had expressed concern in that regard in his judgment in Civil Appeal No.129/1978 in following words : “On going through the two sale deeds produced by the plaintiff at Exh.PW1/A, PW1/B, one will see that the measurements of the plot sold to the plaintiff are given in the second deed, but it is not shown where exactly in the property such a plot is situated. In this respect, it is only mentioned that it is the middle plot out of 3 plots into which the property is divided. This recital is not sufficient to allow us to implant the plot purchased in the property without leaving margin to any doubt.” … 13 … According to him, the issue of possession was not finally decided in a former suit and, therefore, the exception taken to the suit on the plea of res judicata does not arise. 10. As regards the second question, he submitted that exception taken to the suit for non-compliance of Order VII, Rule 3 of CPC also does not arise as the sketch identifying the property was annexed to the plaint for the purpose of identification of the suit property vis-a-vis its description given in the plaint in compliance with the said provision. As regards the third question, he submitted that the possession of the suit structure was sought and established by the plaintiff through the adequate evidence on record. Lastly, he invited the attention of the Court to the judgments reported in AIR 1962 SC 633; L. Janakiram Iyer and others and S. R. Koothananiar Pillai Vs. P. M. Nilakanta Iyer and others and AIR 1968 Allahabad 204; Mistra Nand Kaushik Vs. State of U.P. and another to appreciate his submission that using of phrase 'preliminary decree' in final order passed in the impugned judgment by the learned CJSD, Mapusa, howsoever, erroneous ought not to outweigh the legitimacy/ legality of such order as the Court passing the relief is expected to use its discretion so as to give relief which is … 14 … appropriate to the facts found and the legal position determined, and in doing so, it must look at the substance of the matter and not its form. In the suit for demarcation, he submitted, it was incumbent upon the trial Court to have passed direction for demarcation and for possession consequent thereto. Nothing, therefore, turns on the last question framed for questioning the impugned judgment ordering preliminary decree in the suit. 11. Learned Advocate Sudin Usgaonkar for the respondents with reference to the Article 1117 of the Portuguese Civil Code submitted that the efficacy of the decree passed against the husband – the deceased defendant No.1 Dattaram as against his wife Sumati remains intact and, therefore, the submission made by the learned Advocate Lotlikar for the appellants in that regard is not meritorious. 12. While rejoining the submissions made on behalf of the respondents, learned Advocate Lotlikar for the appellants submitted that the suits instituted are either allowed and dismissed, and appeal preferred against the order of the trial Court is either maintained or reversed, and, therefore, there is no concept of liberty being granted in law to institute a … 15 … suit on the issues once decided. Assuming that such liberty was validly granted, he argued, the respondent / plaintiff did not act as per liberty inasmuch as the suit for demarcation was not filed against the adjoining owners and, therefore, such suit must fail. 13. Submissions made by the rival parties in relation to Article 2340 of Portuguese Civil Code prompted this Court to frame a vital substantial question of law vide order dated 12th August, 2010 as under : “Whether the suit for demarcation at the instance of the respondents was maintainable against the appellants in view of the fact that there was no dispute of boundary as far as the property of the appellants and the property of the respondents was concerned and without joining adjacent owner as parties to the suit?” 14. Admittedly, the suit in the present case was for demarcation as per the provisions of Article 2340 of Portuguese Civil Code. All other questions, therefore, particularly, in view of the substantially meritorious submissions of Ld. Adv. Sudin Usgaonkar for the respondent, are of academic interest and the question framed vide order … 16 … dated 12th August, 2010 is fundamentally vital for deciding the rights of the parties. 15. Article 2339, which precedes Article 2340 in the said Civil Code lays foundation for Article 2340 in following terms : Article 2339 – The owner has right to enjoy his thing with the exclusion of any other person, and to employ for this purpose all the means which the law does not forbid; such right includes, those of demarcation, of enclosure and of defence. 16. For the purpose of clear understanding of the relevant law, Articles 2340 to 2344 of the Portuguese Civil Code are reproduced herein below : Article 2340 – The owner, and likewise any usufructuary or possessor in his own name, has the right to compel the owners of adjoining properties to concur for the demarcation of respective limits, between his property and those of other. … 17 … Article 2341 – The demarcation shall be done in conformity of the title of each of them, and, in the absence of sufficient titles required for the purpose, as per the limits established by possession of contiguous land. Article 2342 – Where the titles do not establish limits, or the area belonging to each owner, and the controversy cannot be decided based on possession, or by any other means before the Court the demarcation shall be done distributing the land subject of dispute, equally. Article 2343 – Where the title of contiguous owners taken together indicate the area, bigger or smaller, that which totality of the land includes, the excess or deficiency shall be allotted proportionately to the part of each of them. Article 2344 – Where the boundary markers have been placed based on common title , not contested, and there is error in their placement, error shall be rectified, it being impermissible to … 18 … plead prescription. 17. It can very well be seen from the aforesaid provisions that individual owner or usufructuary or possessor of the property has a right of demarcation of his property vis-a-vis the properties held by others (owners) adjoining his property. The purpose of instituting a suit for demarcation is to seek concurrence of owners of the adjoining properties in the demarcation of respective limits between his property and those of others(owners) before judicial authority in conformity with their respective titles or to get the property of the plaintiff demarcated in the said suit, in the absence of sufficient titles required for such purpose, as per the limits established by possession of contiguous land. The law on the subject also deals with the contingency when the titles do not establish the limits or area belonging to each owner and the controversy cannot be decided based on the possession or by any other means before the Court. In such contingency, equal distribution of the land subject of dispute in course of demarcation is the remedy suggested by Article 2342. All this has to be done before the Judicial Forum and for that purpose all the owners of the adjoining properties are required to be impleaded to … 19 … the suit for demarcation before any such demarcation is judicially done. In the instant case, none of the adjoining owners were made party to the suit. According to the respondent /plaintiff there was no boundary dispute with the adjoining owners as the property was purchased from the said owners i.e. Minguel Fernandes and his wife Maximiana. Whether there was a dispute or not regarding the boundary between the plaintiff and such adjoining owners ,their concurrence for demarcation of the respective limits of their properties, was required to be recorded before the Court as per Article 2340 of the Portuguese Civil Code. Non-joinder of the owners of adjoining properties, Mr. Minguel Fernandes and his wife Maximiana, or in the event of their demise, their heirs, must prove fatal to the suit - they being necessary parties to the suit as per the law in force in the territory of the State of Goa. The substantial question of law framed in that regard, therefore, requires to be answered negatively. 18. In view of the aforesaid discussion, the appeal must succeed. Hence, the order : (i) The appeal is allowed. (ii) The impugned judgments and decrees are set … 20 … aside. (iii) Regular Civil Suit No.349/1984/A instituted by the respondent in the Court of CJSD, Mapusa, stands dismissed with costs throughout. U. D. SALVI, J. SMA