1. Heard Mr. Usgaonkar, learned Counsel appearing on behalf of the appellants and Mr. Almeida, learned Counsel appearing on behalf of the respondents no. 1 to 4.
2. This Second Appeal arises out of the judgment and decree dated 24/10/2008 passed by the learned District Judge-4, South Goa, Margao (First Appellate Court, for short) in Regular Civil Appeal No. 135/2000. The said Regular Civil Appeal was filed against the judgment and decree dated 29/04/2000 passed by the learned Civil Judge, Junior Division, Margao (trial Court, for short) in Regular Civil Suit No. 247/1973/F. The said suit was decreed by the trial Court but dismissed by the First appellate Court.
3. The appellants no. 1 and 2 and respondents no. 5 to 15 are the legal representatives of the original plaintiffs no. 1 and 2 whereas the appellants no. 3 and 4 were the plaintiffs no. 3 and 4 in the said suit. The respondents no. 2 to 4 are the legal representatives of the deceased defendant no. 1 and the respondent no. 1 was the defendant no 2 in the said suit. As per their status in the said suit, the appellants no.1 to 4 and respondents no. 5 to 15 shall herein after, for the sake of convenience, be referred to as the plaintiffs whereas the respondents no. 1 to 4 shall, hereinafter, be referred to as the defendants.
4. The original plaintiffs had filed the said suit for declaration that rustic urban property encircled by walls is the property purchased by plaintiff no. 2 in judicial auction and the same belongs to her and to no other person and for direction to the defendants to recognize that the property sold in judicial auction and purchased by plaintiff no. 2 consists of one of the properties registered in the Land Registration Office under No. 27202 and the land comprising 1/5th part of the property registered under matriz no. 344. An injunction was also sought for directing the defendants not to enter into the walled compound and not to enter and remain in the property limited by the said encircling compound wall or any part thereof. An injunction was also sought to restrain the defendants, etc. from doing any work in the said property and more particularly, in the adjoining room.
5. Case of the original plaintiffs, in short, was as follows:
In an auction held on 17/08/1972 in Suit No. 3450/1964, the original plaintiffs purchased rustic immovable property with house, court yard and compound known as âZorodiâ situated at Aquem, described in Land Registration Office of Salcete Taluka under No. 27202 of new series and bounded towards east by the property of the same name belonging to the heirs of Avelino de Souza and Camilo da Costa; on the west and south by mixed property of the same name owned by Manuel Antonio Vaz and on the north by Nomixim belonging to the heirs of Antonio Gabriel do Mergulhao. Presently, the said property is bounded towards east by the property of the same name âZorodiâ belonging to the heirs of Valentim Coelho and Camilo da Costa and towards west by property of Leao Constancio Diniz and Gregorio Taumatuga Diniz. The said property is inscribed in the matriz records under No. 345. The said property was inscribed in the Land registration Office in the name of Leao Constancio Diniz of Navelim as it was allotted to him in the inventory proceedings which were initiated upon the death of Osmias Diniz and the partition was decreed by Judgment dated 01/02/1904. To this property was annexed 1/5th divided part of the property also known as âZorodiâ which was sold by Elias Cosmos de Barros and his wife Maria Ermelia Esmeralda da Piedade Vaz to Lucrecia Purificacao Colaco, widow of Antonio Belarmino Diniz, by Deed dated 14/02/1912 executed by a Notary, namely Costa of Margao. Said Lucrecia Purificacao Colaco and Antonio Belarmino Diniz were the parents of said Constancio Diniz. The said 1/5th part is bounded towards east by the property of Pedro Joaquim Peregrino da Costa e Joao Cipriano Diniz; towards north by the property of the heirs of pe. Cirizeo Diniz; towards south by the property of Preciesa Gomes; and towards west by the remaining 4/5th part belonging to the sellers. The property purchased by deed dated 14/02/1912 corresponds to 1/5th of the property inscribed in matriz records under No. 344. In the margin of the said deed dated 14/02/1912, Leao Constancio Diniz had written âthis part is included in the other Zorodi, presently this Zorodi is already registered in the name of Leaoâ. After the purchase of the said 1/5th made under the deed of 14th February 1912, the original property with this new acquisition was encircled by laterite stone wall which was on the east, west and south and not to the north since this side is bounded by Paddy field or Nomoxim, the level of which is more than one metre below the said property and this was done during the period between 1912 and 1916. The said property under No. 27202 and property consisting of 1/5th of the property registered in matriz records under No. 344 became a single and distinct property unit from the time of purchase made in 1912 delimited by boundary walls to the east, south and west and by paddy field to the north as already stated above and the same has been possessed for the last more than 60 years firstly by said Lucrecia Colaco, then by Leao Constancio Diniz, then by his widow Maria Virginia Purificacao Miranda Diniz and now by the plaintiffs from the time of purchase in judicial public auction held on 17/08/1972. Beyond the said wall, the boundaries are: towards east by the properties of Dr. Peregrino da Costa and others, towards west by the property âZorodiâ consisting of 4/5th share of the property registered under matriz no. 344 belonging to Acurcio Diniz and his two brothers and towards south by that of Precios e Gomes. By a deed dated 03/08/1925, Elias Cosmo Barros and his wife sold to Leao Constancio Diniz the property âZorodiâ which was bounded to the east by rivulet of Comunidade registered in the matriz record under No. 344. This property, therefore, lies to the west of the property purchased by the deed dated 14/02/1912. In the Inventory Proceedings, which took place on the death of Leao Constancio Diniz in the Court of Judicial District in the second office, the house property registered under Matriz No. 345 was described under Item No. 14 and the property Zorodi registered under Matriz No. 344 was described under Item No.22. The above references to the matriz numbers are, however, not correct. Actually, the house property should have been described as matriz no. 345 plus 1/5th of the property bearing matriz no. 344 and the property âZorodiâ beyond the boundary wall should have been described as 4/5th of the property bearing matriz no. 344. There was some opposition from defendant no. 1 to the occupation of the suit property purchased on 17/08/1972 and hence, plaintiff no. 2 was put in possession by the Court of the suit property without any objection from anyone on 26/04/1973. But by mistake one adjoining room on the southern side within the compound, consisting of two compartments one destined for toilet and the other as godown for storing coconuts, firewood and timber, was not specifically handed over at that time, but the same was handed over judicially on 29/09/1973 without objection from anyone. After having offered the possession, the plaintiffs put a strong lock to the door of the said godown of coconuts, etc., but immediately on the next day, at the instance of the defendants, the pluckers forcibly destroyed the lock, opened the door and plucked the purchased property and entered in the division of the adjoining rooms, removed the tiles and were throwing the rafters down and damaging and spoiling them. The plaintiffs learnt that the defendants are intending to do the re-roofing and to install themselves in the adjoining room, which was handed over to the plaintiffs judicially as it is part of the property purchased in judicial auction. Hence, the suit.
6. Subsequently, after filing the suit, the plaintiffs sold part of the suit property to Shri Paul Baylon Fernandes by deed dated 17/07/1974. Said Paul along with wife Smt. Luiza Philomena Lourdes Martins Fernandes have been added as plaintiffs no. 3 and 4. By way of amendment to the plaint, the plaintiffs pleaded that the part sold to the plaintiff no. 3 is separated on the eastern side, southern side and northern side by the wall and on the western side by a row of stones. They further stated that the original W.C. constructed by the original owner, late Elias Cosme de Barros was situated in the part which is retained by the plaintiffs no. 1 and 2 and the ruins of the said W.C. were existing even very recently. It was further added that due to the purchase, the plaintiffs no. 3 and 4 are in possession and enjoyment of the part purchased by them and the remaining part of the suit property is in enjoyment of the plaintiffs no. 1 and 2. By further amendment to the plaint, the plaintiffs pleaded that the property that was delivered to the plaintiffs no. 1 and 2 is surveyed under Chalta no. 10 of P. T. Sheet no. 285.
7. The defendants, by way of written statement, alleged as under:
By auction held on 17/08/1972, 2/3rd share of the property described in Conservatoria do Registo Predial under no. 27202 of new series consisting of âpredio rustico urbano com seu quintalâ was purchased by the plaintiffs and the same is referred to as the suit property. The entire property under No. 27202 is bounded towards west and south by âpredio rustic urbano com seu pateos quintalâ of Manuel Antonio Vaz presently the property bearing matriz no. 345 belonging to the heirs of Leao Constancio Diniz. It is false that 1/5th part of Zorodi registered under matriz no. 344 was disannexed from the entire property bearing matriz no. 344. The Sale executed on 14/02/1912 in favour of Lucrecia P. Colaco was never acted upon with the result that the son of Lucrecia P. Colaco purchased the said portion. The said 1/5th portion was and is part and parcel of plot registered under matriz no. 344 and when the remaining portion of the property bearing matriz no. 344 was purchased, its identity with the said property bearing matriz no. 344 was confirmed as parent property by registering the same as distinct unit in the Land Registration Office under No. 29845. It is false that in the margin of the deed dated 14/02/1912 any inscription as alleged by the plaintiffs was made, by said Leao Constancio Diniz. The said inscription is a forgery manipulated by the plaintiffs in order to defraud the defendants. It is false that plot bearing Land Registration No. 27202 and 1/5th of plot no. 344 became one distinct unit or got annexed to each other. On the contrary, the said 1/5th portion became part and parcel of the remaining 4/5th by virtue of public deed dated 03/08/1925, by virtue of which purchase, Leao Constancio Diniz became the sole owner and possessor of the entire 5/5th of the property which whole property was registered under No. 29845 for the first time in the Conservatoria do Registo Predial. The construction of the boundary wall has nothing to do with the alleged unification of the property. It is false that the property surrounded by the boundary wall is bounded towards east by the property of Dr. P. D. Costa, west by 4/5th of the property under matriz no. 344 and south by that of Precioca Gomes. The property in respect of which the plaintiffs acquired 2/3rd right is bounded towards south and west by the property bearing matriz no. 344 which is more particularly identified as property mentioned in Verbs No. 22 in the Inventory Proceedings No. 133 of 1951. The property under matriz no. 344 is bounded towards the east and south by boundary wall and west, by the rivulet and the wall in the middle of the said property under matriz no. 344 merely separates the 'Patio Quintal Urbano' of Manuel Antonio Rosario Vaz. It is false that in the Inventory no. 133 of 1951, matriz numbers were not correctly stated. It is false that the house property should have matriz no. 345 plus 1/5th of matriz no. 344 and that the property Zorodi outside the boundary wall should constitute 4/5th of the property under No. 344. The property on the south and west of matriz no. 345 is always the property registered under no. 29845 with an outhouse situated in south east wing. The judicial possession of the property purchased on 17/08/1972 has nothing to do with the disputed outhouse. The plaintiffs are responsible and liable to be punished for having illegally and fraudulently obtained the possession not only of the property registered under No. 345, but also for having obtained illegal possession of the outhouse situated in the property no. 344, which admittedly, has not been sold in auction. The said possession has been obtained by the plaintiffs by having the defendants physically arrested under a warrant obtained on a false and frivolous criminal complaint, for which they were compelled to give a bond undertaking not to enter the said premises. Hence, the suit be dismissed.
8. The learned trial Court framed the following issues:
â1. Whether the plaintiffs prove that they have purchased the property âMorodâ together with house, courtyard and compound bearing land registration no. 27202 and matriz no. 345 lying within the boundaries as described in para 1 of the plaint?
2. Whether the plaintiffs prove that 1/5th divided part of 'Zorodi' purchased by Lucrecia Purificacao Colaco, widow of Antonio from Elias Cosmos de Baros and his wife Maria Eremila Esmeralda da Piedade Vaz, by a deed dated 14/02/1912 and lying within the boundaries as described in para 4 of the plaint and bearing matriz no. 344 has been annexed to the property 'Morod' purchased by the plaintiffs in Court auction?
3. Whether the plaintiffs prove that the said property 'Morod' bearing matriz no. 345 and the property 'Zorodi' have been amalgamated and became a single property consequent upon encircling both the properties by a laterite stone wall on the east, south and west and paddy field on the north some time in 1912 and 1916 and it is being enjoyed as such for over 60 years by the plaintiffs and their predecessor in title?
4. Whether the plaintiffs prove that consequent upon the purchase of the suit property 'Morod' and 'Zorodi' as a single unit in the Court auction on 17/08/1972, the possession therefore has been given to them on 26/04/1973 and that of suit godown on 29/09/1973 without any objection from any one and that the suit godown is part of the said judicially auctioned property?
5. Whether the plaintiffs prove that on 30/09/1973 at the instance of the defendants, their pluckers have forcibly entered, destroyed the lock opened the door of the suit godown and plucked the suit property purchased by the plaintiffs in Court auction?
6. Whether the plaintiffs prove that the defendants are making attempt to occupy the suit godown after re-roofing it?
7. Whether the defendants prove that the suit godown or contiguous rooms is an out-house situated in plot no. 344 which has nothing to do with the plaintiffs' auction purchase?
8. Whether the defendants prove that the plaintiffs have illegally and fraudulently obtained possession not only of property registered under no. 345 but also illegally obtained the possession of the out house situated in the property no. 344 which was not sold in Court auction?
9. To what relief, if any, are the plaintiffs entitled?â
9. The plaintiffs examined the original plaintiff no. 2, namely Maria Jesuina Miranda de Gomes as PW1; the plaintiff no. 3, namely Paulo Fernandes as PW2; and Ezvy Pereira e Fernandes, the niece of the plaintiff no. 2, as PW3. The defendants examined the original defendant no.1, namely Guilherme Diniz as DW1.
10. Upon consideration of the entire evidence on record, the learned trial Court observed that the auction proceedings clearly show that the entire property bearing land registration no. 27202 and not only 2/3rd of the same was purchased by the original plaintiffs. The trial Court observed that admittedly, by sale deed dated 14/02/1912, 1/5th of the property bearing matriz no. 344 was purchased by the original owners of the property bearing land registration no. 27202. It held that the defence of the defendants that the said sale deed dated 14/02/2012 was never acted upon appears to be unbelievable firstly because there was no reason for not acting upon the same and secondly there was no evidence produced by the defendants in support of the said claim. The trial Court found that admittedly, the said 1/5th of the property bearing matriz no. 344 lies within the boundary wall around the property bearing land registration no. 27202. The trial Court observed that there is absolutely no logical explanation as to why portion of one property should be included within the boundary wall constructed around another property and the only explanation which can be there is that the said portion was treated as part of the bigger property bearing land registration no. 27202 and amalgamated with it. The trial Court found that the defendants never objected for inclusion of the said portion of the property bearing matriz no. 344 within the property bearing land registration no. 27202. The trial Court held that the property which was auctioned and handed over to the original plaintiffs was entire property which was within the compound wall. The trial Court found that the stone wall around the said property was in existence for a long time and DW1 has not denied the same. The trial Court held that the property bearing land registration no. 29845 and matriz no. 344 is only 1/5th of the property âZorodi and not the entire property. The trial Court further found that the plaintiffs no. 1 and 2 purchased the said property in auction dated 17.08.1972 and were given possession of the same on 26.04.1973 whereas the possession of the suit godown was handed over to them on 27.04.1973. The minutes of handing over possession were not challenged by the defendants. The trial Court held that in view of the handing over of possession by the Court, the plaintiffs came to be in possession of the entire property within the boundary wall. It was established that the defendants had interfered with the suit godown and even there was a Criminal Case No. 360/P/73 filed in the Court of J.M.F.C., Margao regarding the said interference by the defendants and their labourers. According to the trial Court, the defendants failed to prove that the said godown and the other room do not form the part of the distinct and separate property which was purchased by the plaintiffs in auction. The trial Court answered the issues no. 1 to 6 in the affirmative and issues no. 7 and 8 in the negative. The suit was decreed.
11. The original defendant no. 2 and the legal representatives of the deceased defendant no. 1 filed Regular Civil Appeal No. 135/2000. The First Appellate Court formulated the following point for determination:-
âWhether 1/5th of property bearing Matriz No. 344, Land Registration No. 29845 formed subject matter of the auction proceedings of 17th August 1972 ?â
The First Appellate Court, upon appreciation of the evidence on record, found that as per Exhibit P-1, the certificate of Inventory proceedings no. 133 of 1951, instituted by Virginia Purificacao Miranda upon the death of Leao constancio Diniz, item no. 14 was 2/3rd of the property 'Zorody' bearing land registration no. 27202 and matriz no. 345 and item no. 22 was the property 'Zorody' bearing land registration no. 29845 and matriz no. 344. The First Appellate Court further found that in the auction proceedings dated 17/08/1972, the property auctioned was a rustic and urban property with its compound known as 'Zorody' situated at Aquem and bounded towards south by the property of Manuel Antonio Vaz. It was found that as per Exhibit P-3, the certificate of land registration and also the plan, the southern boundary was the property of Manuel Antonio Vaz. The contention of the plaintiffs was that in the year 1912, Lucrecia, who is the mother of Leao, purchased 1/5th of the property bearing matriz no. 344 which was to the west and south of the property bearing matriz no. 345 and this 1/4th was amalgamated with the property bearing matriz no. 345 by encircling it with laterite stone wall. The First Appellate Court observed that if the property in auction sale comprised of both the properties bearing matriz no. 345 and 1/5th of matriz no. 344, then the southern boundary would have been that of Preciosa e Gomes as the said property of Prciosa is the southern boundary of the property bearing matriz no. 344 and not that of Manuel Antonio Vaz, which was the southern boundary of the property bearing land registration no. 27202 and matriz no. 345, prior to amalgamation. The plaintiff no. 2 who was the purchaser in the auction proceedings, had not raised any objection in respect of the southern boundary. The First Appellate Court observed that in view of section 91 of the Evidence Act, oral evidence in respect of the said auction sale to show that the auction sale is not only for the property registered under no. 27202 and matriz no. 345, but also for 1/5th of the property registered under no. 29845 and matriz no. 344, is not admissible. The First Appellate Court also found that the statement of PW1 itself shows that the plot, which is claimed by the plaintiffs to have been amalgamated with the property bearing matriz no. 345, was purchased by the defendant's father in the year 1925. The First Appellate Court observed that if the sale in the year 1912 was acted upon, then Leao could not have dealt with that part of the property and could not have made the endorsement that âthis part is included in another Zorody, now this Zorody is already registered in the name of Leaoâ. It has been held that the fact that such an endorsement was made would only establish that the sale of 1912 was not acted upon. The First Appellate court also held that in terms of Article 953 of the Portuguese Civil Code, the fact that the said entire property bearing matriz no. 344 is shown registered in the land registration office in the name of Leao, not only confers on him the title but also shows that he is in possession of the said property. The First Appellate Court found favour with the contention of the learned Counsel for the plaintiffs that in a suit for partition of a property, the property is auctioned only in case the same is indivisible and hence if the 1/5th of the property bearing matriz no. 344 was amalgamated with the property bearing matriz no. 345 and land registration no. 27202, then the property could have been easily divided and there would be no need for auction. The learned First Appellate Court held that in the present case the auction proceedings are very clear and unambiguous. The First Appellate Court answered the above point framed by it in the negative and allowed the appeal. In other words, the suit came to be dismissed.
12. Aggrieved by the judgment and decree passed by the First Appellate Court, two of the legal representatives of the plaintiffs no. 1 and 2 and the plaintiffs no. 3 and 4 have filed the present second appeal which has been admitted on 28/09/2011 on the following substantial questions of law:-
(1) Whether the appellate Court has misinterpreted Section 91 of Indian Evidence Act inasmuch as it is held that the evidence adduced by the appellants to show that the auction sale included 1/5th of the property 'Zorody' enrolled in matriz no. 344 cannot be considered as admissible evidence?
(2) Whether the Appellate Court erred in law in holding that the deed of Sale executed in the year 1912 by which Lucrecia purchased 1/5th of the property under matriz no. 344 was never acted upon because there is endorsement made by her son Leao Constancio Diniz in that Sale Deed?
On 08/08/2014, following additional substantial question of law was framed:-
(3) Whether the Appellate Court was right in holding that the possession of entire property was given to the appellants in auction sale proceedings, is not proved, when it was admitted by the respondent in the proceedings that the appellants were put in possession of the outhouse in property under matriz no. 344 by the Court?
13. The land registration inscription and description document of no. 27202 (Exhibit P-3) shows that the property âZorodyâ inscribed in the name of Leao Constancio Diniz is a rustic and urban property of the cultivation of coconut trees and other trees, situated at Aquem, bounded on the east by the property of the same name belonging to the heirs of Avelino de Souza and Camilo da Costa; on the west and south by the mixed property of the same name belonging to Manuel Antonio Vaz; and on the north by âNomoximâ belonging to the heirs of Antonio Gabriel Mergulhao and others. The document of auction proceedings, produced by PW2, is at Exhibit PW2/DEF/G. It reveals that judicial public auction was held on 17/08/1972 in the law suit proceedings of partition of common cause filed by Virginia Purificacao Miranda against Antonio Piedade Ciriaco Socorro Gregori Acurcio Jose Francisco Diniz and his wife Phyllis Brooks. The document further reveals that in the said auction what was sold was the rustic and urban property with its courtyard known as âZorodyâ situated at Aquem, bounded on the east by the property of the same name belonging to the heirs of Avelino de Souza and Camilo de Costa; on the west and south by mixed property of the same name belonging to Manuel Antonio Vaz; and on the north by âNomoximâ of the heirs of Antonio Gabriel Mergulhao, actually bounded on the east by the property of the same name âZorodyâ belonging to the heirs of Valentin Coelho and Camilo da Costa and on the west by the property of Leao Constancio Diniz and Gregorio Taumaturgo Diniz, described in the land registration office of Salcete of Comarca under number 27202, series new B, enrolled in the Taluka Revenue Office under Matriz No. 345. The above was the property named and described in the notices which preceded the said judicial public auction. Thus, neither the land registration document nor the auction document speaks about any property with compound. It is seen that Maria Jesuina Miranda e Gomes and her husband Soter Paulo Menino Gomes were the highest bidders and purchased the said property. The property 1/5th of âZorodyâ bearing matriz no. 344 is not named in the notices which preceded the auction as also in the auction proceedings.
14. There is on record as Exhibit PW2/DEF/I-colly. a registered document, dated 30/08/1972 of mortgage and promise to sell, of the same property âZorodyâ purchased in the judicial public auction held on 17/08/1972, in the file 3450/1964, by which the said purchasers namely Maria Jesuina Miranda e Gomes and her husband Soter Paulo Menino Gomes executed mortgage in favour of Maria Benvinda Elisa Almeida for having received Rs. 15,000/- from her. Mr. Guilherme Redemptor Diniz, the original defendant no. 1 was a party to this document of mortgage. In this mortgage deed it is specifically mentioned that Maria Jesuina Miranda e Gomes and her husband Soter Paulo Menino Gomes are the lawful possessors of a rustic and urban property with its fruit garden known as 'Zorody' situated in the area of village of Aquem, City of Margao of Taluka, Judicial Division and Sub-District of Salcete of the District of Goa, which consists of a house of residence and of land with coconut trees and other trees, and it is bounded on the east by the property of the same designation of the heirs of Avelino de Souza and Camilo da Costa; on the west and South by the mixed property of the same designation of Manoel Antonio Vaz and on the north by Nomoxim of the heirs of Antonio Gabriel Mergulhao and at present bounded on the east by the property Zorody of the heirs of Valentine Coelho and Camilo da Costa, on the west by that of Leao Constancio Diniz, Gregorio Taumaturgo Diniz, described in the Land Registration Office of this judicial Division of Salcete under number twenty seven thousand two hundred and two, of the new series, and enrolled in the matriz under number three hundred and forty five. It is stated in this document that the above property was purchased by the said parties in Judicial Public Auction held on seventeenth day of the current month of August, in the file 3450/64, instituted in this judicial Division and half of the price has already been deposited and the stamp paper has been paid. The mortgage document also does not mention of the property with compound or about 1/5th of the property bearing matriz no. 344 as part of the property purchased in the said judicial public auction.
15. From the above, it is clear that if the document of auction proceedings held on 17/08/1972 is to be considered as per its face value then what was purchased by Maria Jesuina Miranda e Gomes and her husband Soter Paulo Menino Gomes within the old as well as new boundaries was the property bearing Land Registration No. 27202 and matriz no. 345 only, which fact is strengthened by the deed of mortgage dated 30/08/1972. There is no mention of matriz no. 344 in these documents.
16. Mr. Almeida, learned Counsel for the defendants, contended that in terms of Section 91 of the Evidence Act, oral evidence with respect to the said auction sale in order to establish that the auction sale is not only of the property registered under no. 27202 but also in respect of 1/5th of the property registered under no. 29845, is not admissible. On the contrary, the contention of Mr Usgaonkar, learned Counsel for the plaintiffs is that in respect of auction sale no document was required to be executed by the Court and therefore Section 91 of the Evidence Act does not bar such evidence. He relied upon the Judgment of Division Bench of Patna High Court in the case of âTribeni Prasad Singh Vs. Ramasray Prasad Chaudhuryâ, reported in A.I.R. 1932 Patna 80. In the case supra, the learned Division Bench has observed that Section 65 of Civil. P.C. says that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. It has been held that it is clear that the title of the auction-purchaser is derived from the sale and not from the sale certificate. It has been further held that the sale certificate is merely evidence of title of the auction-purchaser and not the title deed in the sense that the title is conveyed or created by it. It is further observed that the word âsale certificateâ itself denotes that it is only a certificate by the Court that the auction-purchaser has purchased the property. It is further observed that no provision of law has been placed before the Court to show that the title of the auction-purchaser is derived from the sale certificate. In the case supra, mortgaged property was purchased by the decree holder in execution proceedings but no sale certificate was obtained nor any document of delivery of possession under Rule 95 or order XXI of C.P.C. was applied for and obtained. In terms of Rule 94 of Order XXI of C.P.C., when a sale of immovable property has become absolute, the Court shall grant certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser and such certificate shall bear the date the day on which the sale became absolute. An omission to obtain the certificate does not destroy or take away the title of the purchaser and the purchaser in such case can prove his title and purchase by evidence aliunde. But when there is order of confirmation of sale, the production of the same is sufficient to prove the title of the auction-purchaser. The certificate of sale may not by itself create title but is certainly evidence of title. The facts and circumstances in the case of âTribeni Prasad Singhâ (supra) are different. The ratio in the said judgment does not apply to the facts of the present case. In the present case, the property was not purchased in execution proceeding and hence the provisions of order XXI of C.P.C. would not apply. Auction was held in a Partition Suit No. 3450/1964. The said document of auction proceedings was signed by Dr. Eurico Das Dores Santana Da Silva, the learned Civil Judge Senior Decision; by Mr. Abel Agnelo Da Piedade Noronha, the Escrivao/Clerk of that Court; by Mr. Antonio Coelho, the bailiff of the Court and by the purchasers namely Maria Purificacao Jesuina Consolacao Miranda Gomes and Soter Paulo Menino Gomes. It is stated in the said document of auction proceedings that the said written proceedings are being sent to Land Registration Office in terms of the law. The document further shows that on 25/08/1972, the executing parties namely Maria Jesuita Miranda Gomes and her husband Soter Paulo admitted execution of the so-called certificate of sale, before the Sub-Registrar, Salcete. On 26/09/1972, the execution of the said document of auction-sale has been registered in the Land Registration Office of Salcete under No. 1371 of Book No. 1, Vol. 99 at pages no. 335 to 340. Section 91 of the Evidence Act, inter alia, provides that in all cases in which matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained. In my view, the learned First Appellate Court has rightly held that on account of Section 91 of the Evidence Act, oral evidence in respect to the auction sale in order to show that the auction sale was not only in respect of the property registered under no. 27202 and matriz no. 345 but also in respect of the property bearing registration no. 29845 and matriz no. 344, is not admissible. Hence the substantial question no. (1) above is answered in the negative i.e. against the plaintiffs.
17. By sale deed dated 14/02/1912 (Exhibit PW2/E), Smt. Lucrecia Purificacao Collaco, the mother of Leao Constancio Diniz, of whom the defendants are the legal representatives, purchased from Elias Gomes De Barbos and his wife Mrs. Maria Eromela Esmeralda Da Piedade Vaz 1/5th part of the property âZorodyâ situated at Aquem, which entire property is bounded on the east by the properties of the same name belonging to Pedro Peregrino Da Costa and of Joao Cypriano Diniz; on the west by public drain; on the north by the embankment of Manuel Antonio Do Rosario Vaz and of Hipolito Mergulhao and on the south by that of Preciosa Gomes, not described in the land registration office. Even after purchase of the same, Smt. Lucrecia Purificacao Collaco did not bother to get the said 1/5th part registered in her name in the land registration office. This 1/5th part is stated to be bounded towards east by the property of Pedro Joaquim and Joao Cypriano; on the west by the remaining 4/5th of the same property reserved by the vendors for themselves; on the north by the property of the heirs of father Cyriano Diniz; and on the south by the property of Preciosa Gomes. Thus, the said 1/5th part was bounded towards south by the property of Preciosa e Gomes. In this sale deed dated 14/02/1912, the matriz number of the entire âZorodyâ is not mentioned anywhere but the matriz number of 1/5th which is sold is stated to be 343. Be that as it may, the property bearing land registration no. 27202 is bounded towards south by the property of Manuel Antonio Vaz whereas the property âZorodyâ bearing matriz no. 344 of which 1/5th part was purchased by Smt. Lucrecia Purificacao Collaco was bounded towards north by the property of Manuel Antonio Vaz. Thus, as has been rightly observed by the First Appellate Court, if really the property purchased in auction proceedings was the one bearing land registration no. 27202 as also the 1/5th part of the property bearing matriz no. 344, which was given matriz no. 343, then the southern boundary of the same ought to have been the property belonging to Preciosa e Gomes and not that of Manuel Antonio Vaz. The original plaintiff no. 2 was himself the purchaser in the said auction held on 17/08/1972 and ought to have raised objection regarding the southern boundary. There is no explanation regarding the said discrepancy. PW2 has admitted that whenever any merger or amalgamation was done, the law provided for recording such merger or amalgamation in the Books of Land Registration. Article 154 of the Portuguese Decree No. 42565 (Land Registration Law) provides that the description of one property after the same is effectuated shall never be cancelled, however the same can be completed, rectified, restricted, amplified or utilized by virtue of supervenient circumstances by means of amendment. Admittedly, the alleged merger or amalgamation of the property bearing land registration no. 27202 and 1/5th of matriz no. 344 has not been recorded in the land registration office. The area of the suit property as indicated in the plan Exhibit PW2/A is not borne out from any document but as stated by PW2, he had himself worked them out on the basis of survey records and on the basis of fractions.
18. In the left side margin on the top of the first page of this sale deed dated 14/02/1912, there is some hand written note saying as follows: âThis part is included in another of 'Zorody'; now this 'Zorody' is already registered in the name of Leaoâ. Learned counsel for the plaintiffs contended that this endorsement manifests that the 1/5th part of âZorodyâ purchased in 1912 was included, enjoyed and possessed as a part of the property registered under no. 27202, by the owners. In the plaint such an interpretation of the said endorsement is not pleaded. According to PW2, he was told by PW1 that the said note was made on the said copy of the deed by Leao to the effect that the said part will form part of their own compound described in the land registration office under no. 27202 and matriz no. 345. However there is neither pleading in the plaint in this regard as deposed to by PW2 nor PW1 has stated so. There is no date or month or year written on this endorsement. Land registration no. 27202 is also not mentioned in the said endorsement and hence it is not known as to in which land registration, the same is included. The said writing is not an integral part of the said sale deed. There is no explanation as to how Leao could make such writing on the copy of the deed when the said 1/5th part was purchased by his mother who had other children also. The conclusion which the learned Counsel for the plaintiffs wants to arrive at from the said endorsement is imaginary and not at all established.
19. PW1, the original plaintiff no. 2, in her deposition, said that the property purchased by her in the auction bears land registration no. 27202, but did not at all say that the said property included 1/5th of the property bearing matriz no. 344. She deposed that she purchased the property known as âZorodyâ along with a house enclosed by a fence. She explained that the defendant's father (Leao Constancio Diniz) had purchased the suit property during his life time and at that time it comprised of two parts and after having purchased the two parts of the suit property, the defendant's father had amalgamated a portion of one part of the suit property and made a bigger plot and the said bigger plot was disposed of in the court auction held in the inventory proceedings and he purchased this bigger plot in the said court auction. Thus, as has been rightly contended by the learned counsel for the defendants, PW1, the original plaintiff no. 2 does not refer to the sale deed dated 14/02/1912 but to the sale deed dated 03/08/1925 by which the defendant's father i.e. Leao Constancio Diniz had purchased the entire property, bearing matriz no. 344.
20. At Exhibit P-1 is the document of inventory proceedings no. 133/1951, which inventory proceedings were initiated upon the death of Leao Constancio Diniz. Under item 14, in the above inventory proceedings, 2/3rd of the said property registered under no. 27202 and enrolled under matriz no. 345 was included. At Exhibit P-2, is the document of inventory proceedings no. 15814 of 1958, which inventory proceedings were initiated upon the death of Father Jose Napoleon Enrico Pascoal Diniz, the brother of Leao Constancio Diniz. In these inventory proceedings, under item no. 10, 1/3rd of the property rustic and urban with its compound known as âZorodyâ enrolled under matriz no. 345 was enlisted. Both together make the entire property bearing land registration no. 27202. It is pertinent to note that in both the inventory proceedings under both the items no. 14 and 10, there is no mention of any portion of the property bearing matriz no. 344. On the contrary, under item no. 22, in inventory proceedings no. 133/1951, the property âZorodiâ bearing land registration no. 29845 and matriz no. 344 has been separately included. If, on account of purchase of 1/5th of the property bearing matriz no. 344 in the year 1912, during the period from 1912 to 1916, the said 1/5th part of the property bearing matriz no. 344 was annexed to or amalgamated with the property bearing land registration no. 27202, to form one single and distinct unit, then the question of describing the property in the above manner in the inventory proceedings would not arise.
21. The plaintiffs have pleaded in paragraph 6 of the plaint that after the purchase of 1/5th of the property âZorodyâ bearing matriz no. 344, made by the mother of Leao Constancio Diniz, by deed dated 14/02/1912, the original property with the new acquisition was encircled by laterite stone wall which was on the east, west and south and not to the north as there was low lying paddy field on this side and that this was done during the period from 1912 to 1916. Though, PW1, nowhere in her deposition, stated that there was laterite stone wall on east, west and north of the said property, however, in paragraph 6 of the written statement, the defendants did not specifically deny the fact of construction of laterite stone wall on the east, west and south of the original property with the purchase made under the deed dated 14/02/1912. What the defendants stated was that they were unable to state whether the said construction of the boundary wall around the said property together with portion of plot no. 344 purchased by deed dated 14/02/1912 was done between 1912-1915. Besides the above, the cross-examination of DW1 establishes that such wall was built. Merely because, 1/5th part of the property bearing matriz no. 344 was purchased in the year 1912 and because a laterite stone wall was constructed on the east, west and south of the original property bearing land registration no. 27202 and the 1/5th purchased in 1912, though that may be with an intention to enjoy and possess both the parts together, however, that cannot mean that this entire property within the compound wall on three sides and the paddy field on the fourth side was sold in auction in 1972. Learned First Appellate Court has rightly observed that an owner of two or more properties can encircle the properties within one compound wall and may thereafter choose to dispose of one of the said properties within the compound wall. The defendants have specifically pleaded in the written statement that the construction of the boundary wall has nothing to do with the annexation or unification of the property. It was contended by the learned counsel for the plaintiffs that since the house property bearing land registration no. 27202 and 1/5th part of matriz no. 344 were enclosed by walled compound, it formed courtyard and therefore there is reference to the property with courtyard in the auction proceedings. Merely because in the auction proceedings there is mention of the word 'courtyard' that does not mean that the auction proceedings included 1/5th part of the property bearing matriz no. 344 having outhouse in it. The case of the plaintiffs is mostly based on imaginations and conjectures, with no support of documentary evidence.
22. Case of the defendants is that the sale deed dated 14/02/2012 was never acted upon and that 1/5th of the property bearing matriz no. 344 was never dis-annexed from the said entire property and annexed to the property bearing matriz no. 345. The entire property âZorodyâ bearing matriz no. 344 was purchased by Leao Constancio Diniz by sale deed dated 03/08/1925 (Exhibit C-1) and consequently it was registered in the land registration office, being described under no. 29845 and inscribed under no. 20439, in the name of Leao Constancio Diniz. Thus, prior to the sale deed dated 03/08/1925, the property âZorodyâ bearing matriz no. 344 was not registered in the land registration office. In terms of Article 8 of the said Decree No. 42565, the definitive registration presumes that not only the rights which are registered exist but also that the same belong to the person in whose name the same are inscribed in the precise terms in which the registration defines the same. The learned First Appellate Court has relied upon Article 953 of the Portuguese Civil Code which says that the inscription in the registration of a title of conveyance without condition precedent involves irrespective of any other formality, the transfer of possession in favour of a person in whose favour such inscription has been done. In terms of Article 12 of the said decree no. 42565, the facts proved by registration cannot be challenged in the court without simultaneously making the prayer for cancellation of the respective registration. The plaintiffs, therefore ought to have sought declaration that said registration of inscription under no. 29845, at least insofar as the said 1/5th of the said property, is null and void. Learned Counsel for the plaintiffs argued that since 1/5th of the property bearing matriz no. 344 was already sold in the year 1912, the same cannot be sold again in the year 1925, since the vendors had right only to 4/5th part which they could have sold. It is the parties to the sale deed dated 14/02/2012 who could challenge the subsequent sale deed dated 03/08/1925 and not the plaintiffs. Even if it be true that the transaction of the year 1925 cannot nullify the sale deed of the year 1912, that will not automatically mean that said 1/5th of matriz no. 344 was included in the auction proceedings. In my view, merely because 1/5th part of the property was purchased by the mother of Leao Diniz i.e. by Smt. Lucrecia Purificacao Collaco, in the year 1912, that does not mean that the property auctioned in the year 1972 included the said 1/5th part of the property bearing matriz no. 344. In the circumstances above, even if the the First Appellate Court had erred in holding that the fact that said endorsement was made would only establish the case of the defendants that sale of 1912 was not acted upon and if the substantial question no. (2) is answered in favour of the plaintiffs, that would not establish that the property purchased by the original plaintiffs in Court Auction on 17/08/1972 included 1/5th of the property bearing matriz no. 344.
23. It is false to say that the defendants have not denied in the written statement that the original plaintiffs were put in possession of the property. The defendants have specifically denied that the said âEntrega judicialâ has anything to do with the disputed outhouse. They have specifically pleaded that the alleged continuous rooms is an outhouse situated in plot no. 344 which has nothing to do with the plaintiffs' auction purchase. In paragraph 14 of the written statement, the defendants specifically pleaded that the order dated 29/09/1973 was made without giving notice to them. They have further pleaded that the plaintiffs had obtained possession of the outhouse by getting the defendants arrested under warrant based on false and frivolous complaint. It was the case of the plaintiffs themselves that on 30/09/1973, the pluckers of the defendants broke the lock, opened the door and plucked the property purchased by the plaintiffs and removed the tiles of the said room and started throwing down the wooden rafters of the said room. Thus, the defendants did the above acts because they claim to be the owners in possession of the said land being integral part of the property bearing land registration no. 29845 and matriz no. 344. In the circumstances above, merely because the Court, under the impression that the land shown under plot 'B' was part of the property purchased in auction dated 17/08/1973,handed over to the plaintiffs the said area, that would not mean that the plaintiffs are in lawful possession of the said land. Unless the plaintiffs prove that what was purchased in auction dated 17/08/1972 included 1/5th of the property bearing matriz no. 344, containing the outhouse, the possession of the plaintiffs of the said land cannot be termed as lawful so as to make them entitled to the reliefs claimed. There was injunction operating against the defendants during the pendency of the suit. The suit was mainly for declaration of ownership based on auction proceedings and other reliefs were consequential. The additional substantial question no. (3) is therefore answered against the plaintiffs.
24. In view of the above, the impugned Judgment and Decree dated 24/10/2008, passed by the learned First Appellate Court in Regular Civil Appeal No. 135/2000 is in accordance with the settled principles of law and no interference with the same is called for.
25. In the result, the appeal is rejected. No order as to costs in the facts and circumstances of the case.