Oral Judgment:-
1. Heard Mr. T. Pereira, learned counsel appearing for the appellant and Mr. V. P. Thali, learned counsel appearing for the respondent.
2. The above appeal came to be admitted by order dated 02.07.2010 on the following substantial questions of law.
(a) Whether on the basis of the admission of the respondent that the appellants have been granted an aforamento the consequences available for an aforamento as provided under the Portuguese Civil Code are available to the appellant?
(b) Whether the First Appellate Court was justified in dismissing the suit in toto though the appellants were held to be in lawful possession of the suit property?
3. Mr. T. Pereira, learned counsel appearing for the appellants has assailed the impugned judgment on the ground that the appellants have been granted an aforamento in the year 1932 for the purpose of cultivation and putting up a construction therein by the respondent and according to him the appellants are in possession of the said portion of the property since such date. The learned counsel has taken me through the documents and the records and pointed out that the father in law of the appellant no.1 had applied for an aforamento to the Municipality way back on 02.05.1932. The learned counsel has thereafter taken me through the said document as well as the document at Exhibit C-27 Colly and pointed out that the said aforamento was agreed to be granted to the said father in law having an area of 2550 square metres situated at Village Collem for the purpose of cultivation of fruit bearing trees and construction of one residential house. The learned counsel thereafter has also taken me through the document at Exhibit C-27 Colly which is dated 16.11.1932 whereby the possession of the property was handed over to the said father in law. The learned counsel thereafter has pointed out that there are tax receipts produced on record which disclose that the requisite foro was in fact paid by the said father in law to the respondent. The learned counsel thereafter has taken me through the written statement filed by the respondent and pointed out that the respondent did not dispute that such aforamento was granted to the said father in law. The learned counsel thereafter has taken me through the impugned judgment of the Court below and pointed out that the learned Judge has rejected the claim of the appellants that they were holding an aforamento from the respondent essentially on the ground that the original grant was not produced. The learned counsel further pointed out that such grant has been misplaced by the appellants though the evidence on record and the admission of the respondent clearly establishes that in fact an aforamento was granted to the father in law of the appellants. The learned counsel thereafter has taken me through the provisions of the Portuguese Civil Code and pointed out Article 1653, 1654 and other connected provisions in the Civil Code clearly determine the rights reserved to the holder of such aforamento. The learned counsel has thereafter taken me through the findings of the learned Lower Appellate Court and pointed out that the learned Lower Appellate Court has come to the conclusion that the appellants were in lawful possession of the property. The learned counsel as such pointed out that the learned Judge was not justified to pass the impugned judgment and refuse the prayer of declaration that the appellants were the holders of an aforamento from the respondent and for permanent injunction as prayed for.
4. On the other hand, Mr. Thali, learned counsel appearing for the respondent has supported the impugned judgment. The learned counsel has pointed out that in order to ascertain the colour of the aforamento, it was incumbent upon the appellants to prove the grant of the aforamento to ascertain the terms upon which such aforamento was granted. The learned counsel further pointed out that as the terms of the aforamento have not been established, the question of holding that the appellants are entitled to get the remission in the payment of foro in the manner sought by the appellants is not at all justified. The learned counsel further pointed out that as the appellants are seeking a declaration of title in terms of Section 34 of the Specific Relief Act, it was incumbent upon the appellants to show in what manner their alleged rights were infringed to seek a declaration. The learned counsel as such pointed out that the question of granting the declaration as sought by the appellants is not at all justified. The learned counsel further pointed out that as far as the possession is concerned, the respondent do not dispute that the appellants are in possession of the property and even made averments in the written statement to the effect that the respondent are not interested in interfering with such possession. The learned counsel further pointed out that as the appellants have failed to establish any interference with such possession, the question of granting relief as sought by the appellants would not arise.
5. On perusal of the records including the pleadings of the parties and the written statement filed by the respondent at paras 7 and 10, I find that the fact that the respondent had granted an aforamento to the said father in law Joaquim Mascarenhas has not been disputed. Apart from that, to corroborate the said aspect the appellants have also produced the document at Exhibits C-26 and 27 Colly which disclose that said Joaquim Mascarenhas had applied for such aforamento and thereafter the requisite formalities were in fact complied with and ultimately after obtaining permission from the then Governor General such final possession was granted to the said Joaquim Mascarenhas. In view of the said admission and other corroborative evidence produced on record, it cannot be disputed that the fact that an aforamento was granted to the appellants by the respondent stands established. The Courts below as such were not justified to refuse such relief merely on the ground that the original grant of aforamento has not been produced. Section 58 of the Evidence Act clearly provides that fact admitted need not be proved. Considering the said provisions, I find that there was no reason for the Courts below to grant a relief of declaration to the effect that the appellants are entitled to the aforamento granted to them in terms of the final possession at Exhibit C-27 Colly in the property surveyed under No.53/2 of Collem Village. It is also to be noted that the fact that the said portion of the property is in possession of the appellants has not been disputed by the respondent. As such, the Courts below were not justified to refuse such relief to the appellants. No doubt, the appellants are not entitled to the manner in which the relief has been claimed in the plaint, as the question as to whether the appellants are entitled to get the remission in the payment of foro is a matter which the appellants would have to exercise in terms of the provisions of law.
6. The contention of Mr. Thali, learned counsel appearing for the respondent that the terms and conditions of the aforamento have not been established by the appellants and as such the question of granting such declaration would not arise cannot be accepted. The terms and conditions, if any, which would disentitle the relief to the appellants had to be shown by the respondent. In any event, in case any such terms entitles the respondent to avail of any relief in respect of the said aforamento is a matter which the respondent will have to exercise in appropriate proceedings. But however, considering the admitted position and the documents referred to herein above, the Courts below were not justified to refuse the relief sought by the appellants but however the appellants are entitled for the relief to the effect that they are the holders of an aforamento from the respondent in terms of the final possession granted to them as per the Exhibit C-27 Colly in the property surveyed under No.53/2 of Collem Village.
7. With regard to the second substantial question of law, considering that the appellants have established that they are the holders of an aforamento and the fact finding Courts below have come to the conclusion that the appellants were in lawful possession of suit property, there was no justification of the Courts below to refuse an injunction in favour of the appellants herein. Once the appellants have established their possession of the suit property and such possession is referable to the legal title, the Courts below were not justified to refuse the relief of permanent injunction. In the present case as pointed herein above, the fact finding Courts below have come to the conclusion that the appellants are in lawful possession of the suit property. The respondent themselves have averred in the written statement that they are not interested in interfering with the possession of the appellants. In such circumstances, considering the apprehension by the appellants, the learned Judge ought to have granted the relief of permanent injunction in order to protect the possession of the appellants in respect of the suit property.
8. In view of the above, I pass the following:
ORDER
(i) The appeal is partly allowed.
(ii) The impugned judgment dated 31.10.2008 passed by the learned Trial Judge as well as the judgment dated 27.02.2009 passed by the learned Lower Appellate Court are quashed and set aside.
(iii) The suit filed by the appellants are partly decreed. It is held that the appellants are the holders of the aforamento of the property of the respondent as per the final possession granted in terms of Exhibit C-27 Colly in the property surveyed under No.53/2 of Collem Village. The respondent, their agents, servants are restrained by permanent injunction from interfering with the possession of the appellants of the suit property otherwise than due process of law.
(iv) Decree to be drawn accordingly.
(v) The appeal stands disposed of accordingly.