1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.24 OF 2002 1. Smt. Batila Fernandes housewife, widow of late Caetano Fernanes; 2. Shri Antonio Fernandes, aged major; 3. Miss Rosy Fernandes, major, 4. Miss Fatima Fernandes, major; 5. Shri Paul Fernandes, married, 6. Smt. Paul Fernandes, major, all residents of Agonda, House number not known in Canacona Taluka, Goa ... Appellants V e r s u s 1. Smt. Kantabai Onval Naik, aged 61 years, unmarried of Agonda in Canacona, presently residing at Block no.206, 2nd Floor, Bharat Nagar, Grant Rd., Bombay-7, represented by her Constituted Attorney Shri Narsinva Z. Naik, residing of Parve, Agonda in Canacona, Taluka of Goa. (since deceased through his LRs.) 1(a) Shri Milind Naik, son of late Smt. Kantabai Onval Naik major of age, and his wife; 1(b) Mrs. Seema alias Manashi Milind Naik, major of age, 2 both of them residents of Block No.E/206, Second Floor, Bharat Nagar, Grant Road, Mumbai- 400 007. 1(c) Mrs. Smita Sachin Partagalkar, D/o. Late Smt. Kantabai Onval Naik, major of age, and her husband; 1(d) Mr. Sachin Partagalkar, major of age, both of them resident of 205, Plesant Park, Padder Road, Mumbai- 400 026. 1(e) Shri Kundan Naik, son of late Smt. Kantabai Onval Naik, major of age, and his wife; 1(f) Mrs. Bharati alias Ketaki Kundan Naik, major of age. Both of them residents of EI/408, Bharat Nagar, Grant Road, Mumbai- 400 007. 2. Smt. Sunderabai Vitai Agondekar, resident of House number not known, Agonda, Canacona, (since deceased represented by legal heirs)- 2(a) Shri Suhas K. Shirsagar; 2(b) Smt. Anjani Suhas Shirsagar, housewife, Both resident of 2, Dubhash Lane, V.P.Road, Bombay – 4. 2(c) Smt. Sharmila Rajanith Shirsagar, widow of Rajanith, daughter-in-law, resident of 2nd Floor, Bharat Nagar, Seetaladevi Temple Road, Mahim, Bombay-16. 3 2(d) Shri Sriram K. Shirsagar, son of deceased, married and his wife 2(e) Smt. Sheetal Shriram Shirsagar, housewife, Both resident of 2nd Floor, Adarsh Colony, Caranzalem, Panaji, Goa. ... Respondents Mr. N. Sardessai with Mr. D. Shirodkar, Advocates for the appellants. Mr. S. D. Lotlikar, Senior Advocate with Mr. K. B. Surjuse, Advocate for the respondents. CORAM : A. P. LAVANDE, J. RESERVED ON : 19 th November, 2010 . PRONOUNCED ON : 8 th June, 2011. JUDGMENT : By this Second appeal, the appellants take exception to the judgment and decree dated 20th December, 2001 passed by the IInd Additional District judge, South Goa, Margao in Regular Civil Appeal No.53/1995 allowing the appeal filed by the respondents against the judgment and decree dated 18th September, 1995 passed the Civil Judge, Junior Division, Canacona dismissing the suit filed by the respondents herein against the appellants. The respondents are the legal representatives of the original plaintiff Smt. 4 Kantabai Onval Naik, who expired during the pendency of Second Appeal. The parties shall hereinafter be referred to as per their status before the trial Court. 2. The original plaintiff filed the above suit seeking the following reliefs : (a) For a declaration that the suit portion under letters B-C-Q-R and delineated with pink bounds in the plan Ex. “A” to the plaint is part of the property under Lote No.51 of the property Mealdarabaga or Rajibagaeta under Land Registration No.4182, Matriz No.31, 36, 48 and 442 of Agonda Village. (b) That by an order of this Court the defendants No.1 to 6 be directed to vacate the trespass over the suit property and remove the wooden fence erected by them in the suit property and restore the land to its original position. (c) That by an order of this Court the land Survey Department be directed to Re-survey the holding No.118/1 and 118/8 of Agonda village in Canacona Taluka and separate therefrom the portion of the suit property i.e. the suit portion under letters B-C-Q-R and which has been fenced by the Defendants Nos. 1 to 6. (d) For a permanent injunction of this Court restraining the defendant No.1 to 6, their agents and servants and any one claiming through them from trespassing upon or being on th suit property i.e. the Lote No.51 of the property Mealdarbaga or Rajibagaeta, 5 situated at Agonda and more particularly identified in para 2 of the plaint, or any portion thereof or interfering therewith in any manner. (e) For costs of the suit. 3. The suit was contested by the defendants by filing written statement. On the basis of the pleadings of the parties, on 31.10.1988 the trial Court framed the following five issues : (i) Whether the plaintiff proves that by sale deed dt.8.1.1974 she purchased lote no.51 Adm.7500 sq. mtrs. of the property Mealdarbaga or Rajibagaeta, situated at Agonda and described as a whole in Land Redg. Office under No.4182 and enrolled in the matriz nos. 31,36, 48 and 442 ? (ii) Whether the plaintiff proves that the defendant no.1 and her late husband have purchased lote no.9 admeasuring about 2380 sq.mtrs. However, taking the advantage of the absence of the attorney of the plaintiff in Goa, the defendant no.1 fenced a portion of the lote no.51, the said portion is delineated with pink bounds and identified with letters B.C.Q.R. in the plan. The said property is wrongly surveyed in the survey holding no.118/1 in the name of the defendant no.1 to which the 6 defendant no.1 has no right and title ? (iii) Whether the plaintiff proves that part of her property of lote no.51 and lote no.52 purchased by Sundarabai Vithal Agondekar also surveyed together in the name of Sunderabai Vithal Agondekar ? (iv) Whether the plaintiff proves that he is entitled for direction to survey authority to resurvey the holdings no.118/7, and 118/8 of Agonda village of Canacona and to separate the portion of the suit property under letters B.C.Q.R. ? (v) What relief ? What order ? 4. Thereafter, on 26th October, 1990, the following four additional issues were framed : (i) Whether the defendants prove that in the year 1971 Smt. Padmavati Raje, Shri Savaivir and Smt. Umadevi approached the defendant no.1 alleging that the land covered by survey no.118/1 forms part of their property Millderbaga or Rajbageta and that out of ignorance and believing that the persons of status of Smt. Padmavati Raje would not make false representations the defendant no.1 purchased the land covered under survey no.118/1? 7 (ii) Whether the defendants prove that the land covered under survey no.118/1 forms the part of the property under Matriz no.43 belonging to Bejamin Fernandes, grandfather of the husband of the defendant no.1 and that land belonged to the defendants ? (iii) Whether the defendants prove that the plaintiffs vendors had no property to the west of the land sold to the defendant no.1 ? (iv) Whether the defendants prove that part of the land covered under survey no.118/1 and part of the land covered under survey no.118/8 is part of the property under Matriz no.43 in possession of Joaquim Mariano Fernandes, brother of Tito ? 5. In Regular Civil Suit No.104/1988 (New), the plaintiff examined three witnesses namely Shriram Shirsagar, Attorney of the plaintiff-PW1, Dhananjay Bandekar-PW2 and Gurudas Audi-PW3. On behalf of the defendants, defendant no.1- Batila Fernandes-DW1 and Cornillo Fernandes-DW2 were examined. The trial Court upon appreciation of the evidence answered the issues in favour of the defendants and consequently, dismissed the suit. 6. The original plaintiff filed Regular Civil Appeal 8 No.53/1995 before the District Judge, South Goa, Margao which was made over to the IInd Additional District Judge, who by impugned judgment and decree dated 20th December, 2001 allowed the appeal. The lower appellate Court formulated the following points for determination : (i) Whether the plaintiff had established that she is the owner in possession of the suit property ? (ii) Whether the defendant has encroached in the portion of the suit property shown under letter BCQR in the plan at exhibit “A”. (iii) Whether the portion of the property purchased by the plaintiff and the property purchased by the defendant no.7 is surveyed together under one survey number ? 7. The trial Court held that the plaintiff had failed to prove that by sale deed dated 8th January, 1974, she had purchased lote No.51 admeasuring 7500 square metres of the property Mealdarbaga situated at Agonda. The trial Court further held that the plaintiff had failed to prove that defendant no.1 and her late husband had purchased lote no.9 admeasuring about 2380 square metres and had trespassed in the portion of lote as shown in the plan. The trial Court 9 further held that the defendants had proved that property bearing survey no.118/1 forming part of the property bearing Matriz No.43 was belonging to Benjamin Fernandes, grandfather of the husband of defendant no.1. The trial Court further held that the defendants had proved that the plaintiff's vendor had no property to the west of the land sold to defendant no.1. 8. The lower appellate Court in appeal held that lote purchased by the plaintiff was not belonging to the predecessor-in-title of the defendants and they had failed to prove that the property under survey no.118/1 was corresponding to the property under Matriz No.43. The lower appellate Court also relied upon the land registration certificate – exhibit 16 which was produced under Order XLI, Rule 27 of C.P.C. which indicated that the property under Land Registration no.4182 known as 'Agonda' was bounded on east by hill Caincho, on the west by high sea, on the north by property Davolcasana and Gangu Pagui and property Lasbaga of Nettu Xaba Naique and on the south by Caichem of Bazor Govinda Naique, property of Deu Malicarjuna, property of Danu Nomoxi of Babu Vithoba Naique and others. The said property was inscribed in the name of Bassavalinga Rajendra Vadiar. The lower appellate Court 10 further held that the title of the vendors in respect of the property bearing land registration no.4182 was established. The lower appellate Court held that the sale deed exhibit PW1/D indicates that the property sold to defendant no.1 was bounded on the west by maritime zone, whereas the sale deed at exhibit PW1/B established that the land sold to the plaintiff was bounded on the west by sea and, therefore, the land sold to defendant no.1 extended only upto the coast and not to sea and whereas the plots sold to the plaintiff is extended up to sea. The lower appellate Court further held that the trial Court had failed to make distinction between the words 'maritime zone' and 'sea' and had arrived at an erroneous conclusion that the land sold to defendant no.1 extended upto sea and that the vendors had no land towards western side of lote no.9. The lower appellate Court held that the plaintiff had proved that she was the owner in possession of lote no.51 i.e. the suit property and the defendants were the owners of lote no.9. The lower appellate Court held that by sale deed, defendants had purchased an area 2380 square metres, whereas they were in possession of the land admeasuring 2875 square metres and as such, they have not explained how they could be in possession of excess area. The lower appellate Court, therefore, held that only inference that could be drawn was that excess area admeasuring 875 square 11 metres which was included in survey no.118/1 was in fact the part of lote no.51. The lower appellate Court held that the sale deed at PW1/B proved the title of the plaintiff in respect of the suit property and that defendant no.1 had encroached upon the portion of the said property shown under letters BCQR. Consequently, the lower appellate Court granted reliefs sought for by the plaintiff. 9. The appeal was admitted on the following substantial questions of law : (i) Whether the learned Appellate Court could have decreed the plaintiff's suit for demarcation of the suit property based on the sale deed dated 8.1.1974 in absence of proper discussion on the said sale deed, its boundaries and identification vis-a-vis the suit property, merely on the ground that the defendants had failed to prove their case as pleaded ? (ii) Whether distinction made by the learned Appellate Court between 'maritime zone' and 'sea' to decide territorial boundaries of the plaintiff's property vis-a-vis the defendants' property in order to decree the plaintiff's suit be said to be legal and justified in absence of there being any legal distinction between 12 the said two terms and further in absence of any evidence by the witnesses bringing out such distinction on record ? (iii) In the absence of the plaintiff proving that the vendors of the plaintiff had owned land on the western side of the appellants' property, could the plaintiff claim any right to the land on the western side of the appellants' property solely on the ground that the sale deed of the plaintiff with the vendors recited eastern boundary of the plaintiff's property to be appellants' property ? 10. Mr. Sardessai, learned Counsel submitted that the lower appellate Court erred in reversing the well reasoned judgment of the trial Court. Learned Counsel further submitted that the plaintiffs having not sought recovery of possession, could not have been granted the reliefs claimed in the suit. According to learned Counsel, the document at exhibit PW1/C was not an authentic document and the same was not proved from whose custody it was. He further submitted that PW3 Gurudas Audi, expert does not say that he measured the area before drawing the map. Learned Counsel further submitted that the lower appellate Court could not have decreed the suit on the basis of the sale deed 13 dated 8th January, 1974 in the absence of proper discussion in the sale deed and identification on the basis of the said sale deed. 11. Learned Counsel further submitted that the lower appellate Court erred in making distinction between the terms 'maritime zone' and 'sea' in the absence of any evidence having been brought on record by the plaintiff. Learned Counsel further submitted that the plaintiff had failed to prove that his vendor owned the land on the western side of the defendants' property and as such, the plaintiff could not claim any right to land on the western side of the appellants' property solely on the ground that sale deed of the plaintiff recited that eastern boundary of the plaintiff's property was property of the appellants'/ defendants'. 12. Per contra, Mr. Lotlikar, learned Senior Counsel appearing for the respondents / plaintiffs supported the impugned judgment and decree and submitted that no substantial question of law is involved in the present case. He further submitted that the prayer for recovery of possession is implicit in the suit and can be easily made out from the reading of the plaint as a whole. Mr. Lotlikar further submitted that the lower appellate Court has rightly analysed 14 the evidence on record and has come to the conclusion that the plaintiffs were entitled to reliefs sought in the plaint. Mr. Lotlikar submitted that at the most it can be said that the findings of fact reversed by the lower appellate Court are erroneous, but no substantial question of law arises and, therefore, Second Appeal preferred by the appellants deserves to be dismissed. In support of his submissions, Mr. Lotlikar placed reliance upon the following judgments : (i) Emperor Vs. Bandhu Singh and ors; AIR 1928 Patna 124. (ii) Sant Lal Jain Vs. Avtar Singh; (1985)2 SCC 332. (iii) Joseph Severance and others vs. Benny Mathew and others; (2005)7 SCC 667. 13. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 14. At the outset, I would deal with the submission made by Mr. Lotlikar that no substantial question of law arises in the present appeal and as such the appeal deserves to be dismissed. 15. The record discloses that the substantial 15 questions of law mentioned in paragraph 9 herein were formulated by this Court after hearing the learned counsel for the appellants and the respondents. This being the position, I do not find any merit in the submission of Mr. Lotlikar that no substantial question of law arises in the present appeal. 16. I would now deal with the submission made by Mr. Sardessai, learned counsel for the appellants that the suit filed by the plaintiff was not maintainable since no recovery of possession of the encroached portion of land was sought in the suit. Firstly, such a ground was neither raised before the first Appellate Court nor in the Memo of Appeal filed before this Court. Moreover, no substantial question of law in this respect has also been formulated at the time of admission of appeal. This being the position, I am not inclined to entertain such a plea for the first time at the time of final hearing of Second Appeal. 17. I, therefore, do not deem it necessary to refer to the various authorities relied upon by Mr. Lotlikar in support of his submission that such a plea is not available to the appellants at this stage. 18. As stated above, the Trial Court dismissed the suit 16 for the reasons stated herein above. The Lower Appellate Court reversed the decree and decreed the suit. The Lower Appellate Court held that the plaintiff had proved the title of the vendor on the basis of land registration certificate which was produced in appeal under Order 41 Rule 27 of C.P.C. I do not find any legal infirmity in the finding recorded by the Lower Appellate Court that the plaintiff had proved title of the vendor in respect of the property which was sold to her. Moreover, the plaintiff as well as the defendants had purchased two separate plots forming part of a bigger property by two separate sale deeds from the very same vendor. Thus, the finding of the Lower Appellate Court that the plaintiff had proved title of her vendor in respect of the suit property and consequently title of the plaintiff to the suit plot cannot be faulted. 19. Mr. Sardessai submitted that the distinction made by the lower appellate Court between “Maritime Zone” and “Sea” in the absence of any evidence is untenable in law. In order to buttress this Mr. Sardessai placed reliance upon meaning of the word “maritime”, which reads as follows : “maritime (mar-i-tim), adj. 1. Connected with or situated near the ocean, 2. Of or relating to sea navigation or commerce.” 17 Perusal of the above discloses that maritime means connected with or situated near the ocean. 20. The Lower Appellate Court held that the sale deed (Exhibit PW1/B) of the plaintiff established that the plot sold to the plaintiff was bounded on the western side by sea and sale deed Exhibit Pw1/D by which plot was sold to defendant no.1 showed the western boundary as maritime zone. Moreover, on the eastern boundary of the plaintiff's property one of the plots shown was plot no.9 which was sold to defendant no.1 by sale deed dated 21/4/1971. On the basis of this factual position, the Lower Appellate Court held that the case of the plaintiff that the encroached portion was part of the plaintiff's property was established. I do not find any legal infirmity in the said finding recorded by the Lower Appellate Court. No doubt, no evidence was led by the plaintiff to establish the difference between 'sea' and 'maritime zone'. In my considered opinion, it was not necessary for the plaintiff since the two terms cannot be taken as synonymous and the distinction drawn between the two terms by the Lower Appellate Court cannot be said to be perverse warranting interference in Second Appeal. The Lower Appellate Court on the basis of the oral and documentary evidence led by the parties including the sale 18 deeds has come to the finding that the defendant nos.1 to 6 had encroached in the portion marked under letters “B-C-Q- R”. The Lower Appellate Court also observed that the defendants had purchased an area of 2380 sq.metres by sale deed dated 21/4/1971 and the survey record showed that they were in possession of excess area of land which clearly proved that these defendants had encroached upon the portion of the property belonging to the plaintiff. The said finding which is arrived upon appreciation of oral and documentary evidence led by the parties can not be said to be perverse warranting interference in Second Appeal. 21. In my considered opinion the view taken by the lower Appellate Court appears to be more probable than the one taken by the trial Court. 22. In view of the above discussion, I am of the considered opinion that no case has been made out for interference with the impugned judgment and decree passed by the lower appellate Court. The substantial questions of law formulated are answered against the appellants. 23. For the reasons aforesaid, Second Appeal deserves to be dismissed and is consequently dismissed. 19 Having regard to the facts and circumstances of the case the parties are directed to bear their own costs. A. P. LAVANDE, J. SMA/Ap 20