1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.47 OF 2003 Mr. Eleuterio de Remedios, since deceased through his legal heirs: 1(a) Mrs. Virginia Remedios 1(b) Mrs. Ida Fonseca 1(c) Mr. Edwin Fonseca, 1(d) Mrs. Afra Fonseca 1(e) Mr. Victor Fonseca 1(f) Mrs. Philu Remedios, 1(g) Mr. George Remedios 1(h) Mrs. Crimona Remedios 1(i) Miss Viota Remedios 2. Mr. Eric Remedios son of Eleuterio de Remedios, All residents of Mollem Bhat, Saligao, Bardez, Goa. …. Appellants V/s 1. Mrs. Antoinetta Nazareth, Widow of late Romulo Francis Nazareth, since deceased. 2. Mrs. Joy Winifred Lobo e Nazareth, widow of late Edmund Anthony Lobo. 3. Mr. Stanley Nazareth, son of late Romulo F. Nazareth. 4. Mrs. Maria Amalia Nazareth e de Menezes, wife of Stanley Nazareth, all residing at Mohan Nagar, Nagpur. …. Respondents Shri S.D. Lotlikar, Senior Advocate with Shri V. Menezes and Ms. V. Palyekar, Advocates for the Appellants. 2 Shri J.E. Coelho Pereira, Senior Advocate with Shri V. Korgaonkar, Advocate for the Respondents CORAM : F.M. REIS, J. DATE : 17th OCTOBER, 2011 JUDGMENT : Heard Shri S.D. Lotlikar, learned Senior Counsel with Shri V. Menezes appearing for the appellants and Shri J.E. Coelho Pereira, learned Senior Counsel appearing for the respondents. 2. The above appeal was admitted on 9/10/2003 on the following substantial questions of law: (B) Whether a suit for mandatory injunction seeking removal of a steel container allegedly placed by the appellants in the suit property, mandatory injunction to repair the compound wall and parapet wall and fill up trenches and to remove loose stones heaped in the suit property with an alternate prayer for payment of damages could be construed to be prayer for restoration of the possession of the suit property, and whether a decree directing restoration of possession of the suit property, could be passed in favour of the respondents when in the plaint as filed there was no prayer for restoration of possession? (D) Whether in view of the suit being a suit simpliciter for permanent injunction and not for restoration of possession, there was any occasion for the Courts below to consider the 3 plea of adverse possession of the appellants when the suit of the respondents was liable to be dismissed once the finding was recorded that the possession of the suit property was with the appellants? 3. The brief facts of the case are as follows :- Regular Civil Suit No.521/1986 was filed before the learned Civil Judge Junior Division, Mapusa by the respondents claiming, inter alia, to be the owners of the suit property surveyed under no.216/35 and old survey no.2163 of village Saligao. It is the case of the respondents that they were residing at Nagpur and they had entrusted the property to the care of the appellants as well as the house located therein. It is further their case that in the year 1975, one Krishna Kalangutkar was inducted in the house as a lessee and subsequently one Jaidev Morajkar was also inducted in another portion of the suit house. It is further their contention that on or about 20/071986 the respondents were informed that the appellants had placed a steel container in the suit property and on or about 14/10/1986 the appellant no.2 had broken a portion of the compound wall, dug some trenches and demolished part of the western side of the suit property. Accordingly, the suit came to be filed by the respondents praying, inter alia, for a permanent 4 injunction against the appellants restraining them from interfering with the suit property and for a mandatory injunction to remove the container from the suit property, repair the compound wall, fill the trenches and remove the loose stones heaped in the suit property. 4. The appellants filed their written statement claiming that they are the owners of the suit property by prescription and further alleging that they had adverse possession of the suit property. The counter claim was also filed by the appellants seeking a declaration of ownership to the suit property and an injunction against the respondents from interfering with the possession of the appellants over the suit property. 5. After issues were framed and recording of evidence, the learned Civil Judge Junior Division at Mapusa by judgment dated 7/06/2000 partly decreed the suit to the extent that it restrained the appellants by way of a permanent injunction from interfering with the suit property and dismissed the counter claim filed by the appellants. The prayer for mandatory injunction came to be rejected by the learned Judge. 5 6. Being aggrieved by the said judgment and decree, the respondents preferred an appeal before the learned District Judge, North Goa at Panaji being Regular Civil Appeal No.111/2000. On being served, the appellants filed cross-objection assailing the impugned judgment to the extent of refusing the counter claim while granting permanent injunction against the appellants. The learned Additional District Judge by judgment and decree dated 10/01/2003 allowed the appeal preferred by the respondents and granted to the respondents not only the additional prayer of mandatory injunction directing the appellants to remove the structure in the suit property but also allowed the recovery of possession. Cross-objection filed by the appellants also came to be rejected. Being aggrieved by the said judgment passed by the lower Appellate Court, the appellants have preferred the present appeal. 7. Shri S.D. Lotlikar, learned Senior Counsel appearing for the appellants has assailed the impugned judgment and pointed out that the learned trial Judge whilst disposing of the suit filed by the respondents has arrived at a categorical finding to the effect that the appellants were in possession of the suit property. The 6 learned Senior Counsel, as such, submitted that once it is held that the appellants are in possession of the suit property, the question of granting any permanent injunction restraining the appellants from interfering with the suit property would not arise at all. The learned Senior Counsel has taken me through the judgment of the learned trial Judge and pointed out that the learned Judge has come to a categorical finding to that effect. Learned Senior Counsel further pointed out that the lower Appellate Court has erroneously granted the restoration of possession when there was no such prayer made by the respondents in the suit. Learned Senior Counsel further pointed out that the lower Appellate Court had no jurisdiction to direct the restoration of possession of the suit property as according to him the whole suit property was not subject matter of the suit. Learned Senior Counsel further pointed out that even assuming that respondents have established that they are the owners of the suit property nevertheless there is no evidence on record to establish that the respondents are in possession of the suit property. Learned Senior Counsel further pointed out that the lower Appellate Court while discussing the material on record has not given any finding reversing the findings of the learned trial Judge to the effect that the appellants are in 7 possession of the suit property. Learned Senior Counsel further pointed out that the respondents have not prayed for restoration of possession, hence, the question of the lower Appellate Court directing the restoration of possession would not arise at all. Learned Senior Counsel further pointed out that the respondents are not entitled for a permanent injunction as according to him the finding of possession has not been set aside by the lower Appellate Court. The learned Senior Counsel further pointed that considering that the suit was for injunction simpliciter the question of granting restoration of possession would not arise at all. Learned Senior Counsel has taken me through the impugned judgments of the lower Appellate Court as well as of the trial Court and pointed out that there are findings to the effect that the appellants are in possession of the suit property. Learned Senior Counsel, as such, submitted that the substantial questions of law framed by this Court are to be answered in favour of the appellants. 8. On the other hand, Shri J.E. Coelho Pereira, learned Senior Counsel appearing for the respondents has supported the impugned judgment. Dealing with the contention of the learned Senior Counsel appearing for the appellants to the effect that the 8 respondents have not sought for restoration of possession in respect of the suit property, the learned Senior Counsel has taken me through the reliefs sought in the suit and pointed out that the relief claimed by the respondents was to the effect that the appellants should be directed by a mandatory injunction not only to demolish the structure/construction put up in the suit property but also to restore it to the original position. The learned Counsel further submitted that this itself discloses that the aspect of restoration of possession was very much the subject matter of the suit. Learned Senior Counsel has also taken me through the impugned judgment of the lower Appellate Court and pointed out that the possession be directed to be delivered to the respondents not only of the area where the main structures are located but also the remaining structures put up during the pendency of the suit which according to him are incomplete. Learned Senior Counsel further pointed out that it is not correct to contend that the learned Judge has directed restoration of possession of the property when according to him the relief was restricted to the area where the disputed structures were allotted. Learned Senior Counsel further pointed out that considering the findings of the trial Judge that the respondents were in possession of the suit property there is no question of 9 delivering any possession of the remaining portion of the land. Learned Senior Counsel further submitted that admittedly, the claim of the appellants that they are in possession of the suit property has been disbelieved by both the Courts below as according to him the learned Judge has given categorical finding that the respondents are in possession of the suit property. Learned Senior Counsel has also taken me through the impugned judgment of the lower Appellate Court and pointed out that there are specific findings arrived at by the lower Appellate Court to the effect that the claim of the appellants that they were enjoying the suit property has been disbelieved. Learned Senior Counsel further pointed out that admittedly, as far as the house existing in the suit property is concerned is occupied by the tenants and, as such, the question of the appellants claiming any possession therein would not arise at all and as far as the disputed structures put up in the suit property by the appellants, they have been ordered to be demolished by the impugned judgment. Learned Counsel has taken me through the impugned judgments of the Courts below and pointed out that the lower Appellate Court has rightly granted the reliefs in favour of the respondents. Learned Senior Counsel further submitted that the substantial questions of law framed in the above appeal are to be 10 answered in favour of the respondents. 9. Dealing with the substantial questions of law framed by this Court, on perusal of the judgments passed by the Courts below, it has been conclusively established that the respondents are the owners in possession of the suit property. Both the Courts below on appreciating the evidence on record and considering the documents adduced by both the parties have come to the conclusion that the respondents have established their ownership and possession over the suit property. The Courts below have also come to the conclusion on appreciation of evidence that the appellants without any right have put up a steel structure over the suit property whereas the lower Appellate Court whilst deciding the appeal preferred by the respondents has found that apart from the suit steel structure put up by the appellants before the filing of the suit there were additional structures constructed by the appellants during the pendency of the suit which were despite of restrain orders operating against the appellants. As such, the lower Appellate Court has come to the conclusion that the respondents were entitled for the mandatory injunction as prayed for in the suit. The lower Appellate Court has, as such, found that the learned Trial 11 Judge was not justified to refuse the prayer of the respondents for mandatory injunction directing the appellants to remove the structures put up in the suit property. Considering the reasons recorded by the learned Judge, I find no infirmity committed by the learned Judge in coming to the conclusion that the appellants were not entitled to put up such structure in the suit property. The lower Appellate Court was justified on the basis of material on record to come to the conclusion that the learned trial Judge was not justified to refuse such relief to the respondents. The appellants who have no right at all to the suit property are not entitled to put up illegal structures in the suit property to the detriment of the interest of the respondents. 10. Once the ownership and possession of the suit property is held to be belonging to the respondents, it is well settled that the respondents would be entitled to enjoy the suit property in the manner they so desire. Considering that the claim of the appellants to the effect that they were in adverse possession over the suit property has been rejected by both the Courts below, I find that the lower Appellate Court was justified to come to the conclusion that the respondents were entitled for the mandatory 12 injunction as prayed for. 11. Dealing with the contention of Shri S.D. Lotlikar, learned Senior Counsel to the effect that the lower Appellate Court was not justified to grant restoration of possession of the suit property, I find that on perusal of the reliefs sought by the respondents in the suit the prayer clause (b) was to seek for mandatory injunction directing the appellants to remove from the suit property the container referred to in the plaint and restore the land to its original condition. The other relief sought by the respondents was for a mandatory injunction to repair the compound wall and the parapet wall. Both the Counsel do not dispute that the relief with regard to repairing the compound wall and the parapet wall and filling the trenches have not been granted by the Courts below. On perusal of the said relief it is apparent that the respondents sought for a mandatory injunction to remove the container as well as to restore the land to its original condition. The respondents have filed the suit on the premise that they are the owners in possession of the suit property. Considering the prayer sought by the respondents it is implicit that the prayer to restore the land to its original condition implies that the respondents also 13 sought for restoration of possession of the land which was occupied by such structures. The learned Senior Counsel appearing for the respondents has rightly relied upon the judgment of the learned Single Judge of this Court passed in Second Civil Appeal No.15/B/1980 wherein the learned Single Judge has construed a similar prayer made in the said proceedings amounts to restoration of possession of the area occupied by such illegal structure. Considering the submissions of the learned Senior Counsel Shri J.E. Coelho Pereira, that restoration of possession granted by the lower Appellate Court is restricted only to the area covered by the container as well as the additional structures put up during the pendency of the suit, the contention of the learned Senior Counsel Shri S.D. Lotlikar to the effect that the lower Appellate Court has granted restoration of possession of the suit property cannot survive on the basis of the findings of the Courts below and taking note of the said submissions of the learned Senior Counsel appearing for the respondents. No infirmity can be found on that count in the judgment of the lower Appellate Court. 12. Considering the said judgments of the learned Single Judge of this Court and in the facts and circumstances of the case, I 14 find that the learned lower Appellate Court was justified to come to the conclusion that the respondents were entitled for a mandatory injunction to remove the illegal container/structure put up during the pendency of the suit and grant the reliefs to the respondents. In view of the above, the first substantial question of law is answered by holding that the learned lower Appellate Court was justified to direct the removal of the container as well as structure existing therein coupled with the direction to restore the possession of the area occupied by such structures. 13. Dealing with the second substantial question of law, Shri S.D. Lotlikar, learned Senior Counsel appearing for the appellant has taken me through the judgment of the learned trial Judge while deciding additional issue no.1. On perusal of the finding therein the learned Judge has noted the fact that two persons namely Krishna Kalangutkar and Jaidev Moraskar were inducted in the suit house by the original appellant no.1, who has now expired and his estate being represented by the appellants herein. The learned Judge further took note of the fact that it was the case of the respondents that the said defendant no.1 was looking after the suit property on behalf of Melita Nazareth and 15 was furnishing accounts. The learned Judge also took note of the fact that the respondent was residing in Nagpur and thereafter returned to Goa and was looking after his property. The learned Judge took note of the statement of PW1 that he had asked possession in respect of the suit property from the appellants in Regular Civil Suit No.363/1987 filed by the respondents. With that regard it is to be noted that on going through the copy of the plaint of Civil Suit No.363/1987, the said finding of the learned Judge cannot be accepted on the basis of material on record. A copy of the plaint which is found in the records before the learned trial Judge reveal that at para 12 of the plaint it is specifically stated therein that the respondents are in possession of the suit property and that a suit was filed restraining the appellants from interfering with the suit property and an interim injunction to that effect was passed in the said suit. The suit property referred to therein is the same which is the subject matter of the present appeal. It is also specifically mentioned that the suit property in the present proceedings is excluded from said Civil Suit No.363/1987. As such, the observations of the learned Judge to the effect that the possession was sought in the said suit cannot be accepted, as it is contrary to the plain reading of the plaint in the said suit. 16 14. Learned Senior Counsel appearing for the appellants has given lot of emphasis to the finding of possession by the learned trial Judge. The learned Judge however has come to the conclusion that there was no supportive evidence to the effect that the appellants could be held to be in possession of the suit property. The observation of the learned trial Judge to the effect that the appellants were in possession of the property is in context of their enjoyment by the appellants on behalf of the respondents at the time when the respondents were residing at Nagpur. Such permissive acts by the appellants in the absence and/on behalf of the respondents cannot be considered to be possession. Article 474 of the Portuguese Civil Code clearly provides that permissive acts do not constitute possession. Possession is the retention of fruition of the thing or of a right. In the present case, there is no evidence on record adduced by the appellants that they were possessing the suit property as sought to be contended by the learned Senior Counsel appearing for the appellants. Apart from that, the lower Appellate Court while re-appreciating the evidence on record has held that taking at the highest the admission that the respondents had settled in Nagpur and when it is the case of the respondents that they are the owners of the suit property merely physical 17 absence would not be adequate to deny the claim of title to the suit property unless the appellants prove ousted. The learned Judge has further held at page 18 of the judgment that once the caretakership of the appellants vis-a-vis the suit property is considered in a proper perspective and when the possession would be at the highest on behalf of the respondents, planting of the trees by the appellants would only go to show that they are undertaking the work on behalf of the respondents and nothing can substantially turn from the stray statements that he was not aware if the trees were planted by the parents or grandparents of the appellants no.1. The learned Judge further found at para 21 of the judgment that the appellants have not been able to establish that they have been enjoying the suit property. Considering the said findings of fact by the fact finding Courts below the contentions of Shri S. D. Lotlikar, the learned Senior Counsel appearing for the appellants to the effect that the Courts below have come to the conclusion that the appellants were in possession of the suit property cannot be accepted. On the contrary, it is not disputed that the appellants are not residing or occupying any portion of the suit house existing in the suit property. Apart from that, there is no evidence on record as held by the lower Appellate Court to the effect that plantation done 18 by the appellants was on their own behalf but on the contrary the finding of the lower Appellate Court is that the same was on behalf of the owners. As such, it cannot be said that the appellants were in possession of the suit property. The only enjoyment in the property by the appellants was with regard to the steel structure put by the appellants in the suit property as well as the other structures constructed during the pendency of the suit filed by the respondents. With regard to the demolition of the said structure as well as the additions/constructions put up during the pendency of the suit I have already come to the conclusion that the lower Appellate Court was justified in directing by a mandatory injunction to demolish such construction as well as restore the possession of the areas occupied by such construction. Considering that the fact finding Courts have come to the conclusion that the appellants are not in possession of the suit property, the Courts below were justified to grant the permanent injunction as prayed for by the respondents. This Court in a Second Appeal cannot re-appreciate the evidence to come to any contrary findings as no perversity has been pointed out in such findings by the appellants. Shri S.D. Lotlikar, learned Senior Counsel appearing for the appellants was unable to point out any 19 piece of evidence which has not been considered by the Courts below which would in any way disturb the findings of fact to the effect that the appellants are not in possession of the suit property. As such, I find no infirmity in the judgment of the Courts below to the effect that the appellants have failed to establish their claim of adverse possession of the suit property or that the appellants are in possession of the suit property. 15. Considering the defence of the appellants that they were in adverse possession of the suit property which they have failed to establish, in any event, the alleged possession of the appellants can by no stretch of imagination be protected against the respondents who are the true owners of the suit property. There is nothing on record to substantiate the contentions of the learned Counsel appearing for the appellants that the appellants were in