Judgment:
This is plaintiffs' Second Appeal.
2. The plaintiffs had filed Special Civil Suit No. 22/78/I for a declaration that they are entitled to ownership and possession of right to one half of the five properties identified in the plaint with the right to enjoy one half of its produce from the said properties, the same right being acquired by them by way of succession and prescription. The plaintiffs further prayed for permanent injunction to restrain the defendants from obstructing the plaintiffs, their families and servants from entering and staying in the suit house no. 12970 and from collecting their share in the income of the properties identified in the plaint. The plaintiffs lastly prayed for mandatory injunction directing the defendants who are in charge of the said agricultural properties to deliver to the plaintiff annually half of the produce in kind or money valued at Rs. 200/- since 15/06/1976 onwards.
3. Case of the plaintiffs was as follows:
The plaintiff no.1 and Benedito Francisco da Costa, who is father of the original Defendant no.1, were brothers, their parents being Manuel Silvestre da Costa and Ana Piedade Ines Mafalda Alvares. Said Manuel Silvestre da Costa was the owner of the following suit properties :
(a) House property known as 'Predio Urbano com seu peteo e quintal' bearing land registration no. 12970;
(b) Property known as 'Quervota' (7/8) bearing land registration no. 14161;
(c) Property known as 'Modvolsai' (1/16) bearing land registration no. 14320; and
(d) Property known as 'Roulabata' bearing land registration no. 18982.
After the death of Manuel Silvestre da Costa, by a deed of partition executed on 21/12/1921, all the suit properties were allotted to his widow Smt. Ana Piedade Ines Mafalda Alvares who is the late mother of plaintiff no.1 and said Benedito Francisco da Costa. 1/8th portion of the property with house bearing land registration no. 12970 and also under number 14103 was gifted to the plaintiff no.1 by his paternal aunt Ana Rita Matildas da Costa, by Deed of Gift dated 20/01/1933, as the same belonged to her. The mother of the plaintiff no. 1 was in charge of the said properties, and during her life time, by mutual agreement the income of the said properties was divided into two equal shares: one of the plaintiff no.1 and other of his brother Benedito Francisco da Costa. After the death of their mother, Benedito Francisco da Costa was in charge of the house at Curtorim and he used to divide the income of the suit properties into two shares between him and plaintiff no. 1. The said Benedito Francisco da Costa was earlier living at Margao and started residing at the house at Curtorim since about eight years prior to the institution of the suit. The plaintiff no.1 used to reside in Sanvordem and used to often go to Curtorim and stay in the house there. The said Benedito Francisco da Costa expired on 13/06/1976. For the last three years prior to his death, Benedito Francisco da Costa, had paid Rs. 300/- per anum as share of the plaintiffs in the produce of the paddy field, 100 coconuts for each plucking, 6 bags of mangoes, 1 basket of tamarind and about 20 jack fruits as share of income from the suit properties. After the death of Benedito Francisco da Costa, the defendants are obstructing the plaintiffs from entering the common house and are also preventing them from getting their share in the income of the suit properties. Hence the suit.
4. By way of written statement the defendants alleged as follows:
The properties have been already partitioned and the plaintiffs have no right to seek partition of the same for the second time. An Inventory Proceeding bearing no. 12468 was instituted by Benedito Francisco da Costa, in which the plaintiff no.1 had participated. In the said Inventory Proceedings, the properties were distributed between the plaintiff no. 1 and Benedito Francisco da Costa. The properties were so divided sometime in the year 1952. It is false that Benedito Francisco da Costa used to divide the income of the properties between him and plaintiff no.1. The plaintiffs were always residing at Sanvordem and not in the house of Curtorim. The plaintiffs have no right in the house and the properties.
5. Upon analysis of the evidence on record, the learned Additional Civil Judge Senior Division(I), Margao (trial Court) held that the final order in the Inventory Proceedings produced at Exhibit DW1/A establishes that the suit properties specified in the plaint were allotted to Benedito Francisco da Costa which allotment was not challenged by the plaintiff no.1 though he was one of the parties to the said Inventory Proceedings . The trial Court further held that pursuant to the said allotment the properties have been inscribed in the land registration office in the name of Benedito Francisco da Costa, in the year 1955 and this Registration Certificate which is produced as Exhibit DW1/B proves the title of Benedito Francisco da Costa. The trial Court further held that the plaintiff had not challenged the said Registration Certificate and therefore cannot claim title to the suit properties by inheritance or succession. The trial Court found from the evidence on record that the defendants are in exclusive possession of the suit properties and that there are no necessary pleadings insofar as the claim of title by prescription is concerned. The trial Court therefore dismissed the suit.
6. The plaintiffs then approached the learned District Judge, South Goa at Margao and in Regular Civil Appeal no. 15 of 1999 the First Additional District Judge (first Appellate Court) held that the trial Court was perfectly justified in declining to grant the relief to the plaintiffs. The first Appellate Court held that the plaintiffs have not proved that they have one half share in the suit properties. Insofar as the Gift Deed dated 20/1/1933 is concerned, the first Appellate Court observed that the plaintiffs have not explained as to how 1/8th part of the property Predio Urban could be gifted to the plaintiff no. 1 by his paternal aunt when the entire property was already allotted to his mother, Ana Piedade. It is further observed by the first Appellate Court that the plaintiff no.1 had not produced the said gift deed before the Inventory Court and had also not claimed right to 1/8th part of the said property, on the basis of the said gift deed. The appeal therefore came to be dismissed.
7. The plaintiffs filed this Second Appeal against the judgment and decree of the First Appellate Court and of the trial Court and the same has been admitted on the following substantial question of law:
a) Whether the conclusion recorded by the trial court, and the First Appellate Court, that the appellants failed to establish any co-ownership right in respect of the property known as “Predio Urbano com seu poteo e quintal” registered in the Land Registration Officer, Margao, under No. 12970 is illegal, being rendered by misreading of the pleading of the Appellants, wrong assumption that the inscription in respect of the said property is in respect of the entire property and consequent upon discarding admissible evidence in favour of the Appellants in the form of the Deed of Gift dated 20/01/1933?”
8. Mr. S. D. Lotlikar, learned Senior Counsel appearing on behalf of the plaintiffs, contended that the Deed of Gift dated 20/01/1933 which has been produced by the plaintiffs as Exhibit P-3 duly proved that 1/8th share of the house property bearing land registration no. 12970 was gifted by the paternal aunt of the plaintiff no. 1 by name Ana Rita Matildas da Costa, to the plaintiff no.1. He pointed out from the evidence that there was no denial to the fact that the said Ana Rita Matildas da Costa was the paternal aunt of the plaintiff no. 1 and there was also no challenge to the said Gift deed. He, therefore, argued that by virtue of the said Gift Deed, the plaintiffs are co-owners of the said house property to the extent of 1/8th share. He then pointed out that in the Inventory Proceedings No. 12468 of 1949 only 3/4th of the property bearing land Registration No. 12970 was included as item No. 29 and the same was allotted to Benedito Francisco da Costa. He further pointed out that the inscription of transmission no. 46011 shows that 3/4th part of the property described under number 12970 has been inscribed in the name of Benedito Francisco de Costa. Therefore, according to the learned senior counsel, the defendants are co-owners of only 3/4th share in the house property bearing land registration no. 12970 and they do not claim the remaining 1/4th. He therefore argued that co-ownership of the plaintiffs to the house property cannot be denied and therefore the suit filed by the plaintiffs could not have been dismissed, in toto.
9. Per contra, Mr. C. Coutinho, learned counsel appearing on behalf of the respondents invited my attention to paragraphs no. 1 and 2 of the plaint and pointed out that according to the plaintiffs the suit properties which include the house property originally belonged to the parents of the plaintiff no.1 namely Manuel Silvestre da Costa and Ana Piedade Ines Mafalda Alvares. He then invited my attention to paragraphs 3 and 4 of the plaint and to the Deed of Partition dated 01/11/1921, by virtue of which all the suit properties including the house property were allotted to the mother of the plaintiff no.1 namely Ana Piedade Ines Mafalda Alvares. He further pointed out that, the plaintiff no. 1 was party to the Inventory Proceedings and no property has been allotted in favour of the plaintiffs in the said Inventory Proceedings. Since in terms of paragraphs no. 1 and 2 of the plaint, according to the plaintiffs the suit properties including house property originally belonged to the parents of the plaintiff no.1, the learned counsel appearing for the defendants questioned as to how the plaintiffs could now say that 1/8th of the house property belonged to Ana Rita Matildas da Costa, the sister of the father of the plaintiff no.1. He further pointed out that, if the Partition Deed dated 21/12/1921 is perused it can be seen that name of Ana Rita Matildas da Costa does not at all figure in the same. He further submitted that the suit as filed was not for 1/8th part of the house property bearing land registration no. 12970, but for half of all the suit properties. Therefore, according to Mr. Coutinho, the plaintiffs cannot get any right to the house property through the said Gift Deed, since the person who is stated to have gifted the same had no right to it.
10. In rejoinder, Mr. Lotlikar, learned Senior Counsel appearing for the plaintiffs, contended that since in paragraph 5 of the plaint the plaintiffs have averred that 1/8th of the said house property belonged to the paternal aunt of the plaintiff no.1 and she has gifted the same to the plaintiff no.1, it only means that the parents of the plaintiff no.1 namely Manuel Silvestre da Costa and Ana Piedade Ines Mafalda Alvares cannot be the owners of the entire said house property. He submitted that there is mistake in the pleadings insofar as paragraph 2 of the plaint is concerned. He pointed out that the plaintiff has referred to the Partition Deed as well as to the Inventory Proceedings and has produced the said Gift Deed proving the plaintiffs to be co-owners of 1/8th share in the house property.
11. I have carefully gone through the record and proceedings including the documents produced by the parties.
12. First of all it is seen that there are concurrent findings of both the courts below to the fact that the plaintiffs have not proved that they are entitled to half share in the suit properties, as prayed for.
13. In paragraphs 1(a) to 1(d) of the plaint, the plaintiffs have described the suit properties. In paragraph 2 of the plaint, the plaintiffs have clearly pleaded that the suit properties were originally owned by Manuel Silvestre da Costa and Ana Piedade Ines Mafalda Alvares, the parents of the plaintiff no. 1 and of Benedito Francisco da Costa. It is further pleaded in paragraphs 3 and 4 of the plaint that by deed of partition dated 21/12/1921, all the suit properties had been allotted to the mother of the plaintiff no. 1. Therefore, nothing of the suit properties, which include the house property bearing land registration no. 12970, remains to be owned by any sister of Manuel Silvestre da Costa, by name Ana Rita Matilda da Costa. Though in paragraph 5 of the plaint it is averred that 1/8th of the suit property with house, bearing land registration no. 12970 and also no. 14103 had been transferred to the plaintiff no.1 by Gift Deed dated 20/01/1933 by the paternal aunt of the plaintiff no.1 by name Ana Rita Matildas da Costa, to whom it was belonging, however the plaintiffs have not explained as to how could the said Ana Rita Matildas da Costa own 1/8th share in the house property when in fact all the suit properties belonged to Manuel Silvestre da Costa and his wife Ana Piedade Ines Mafalda Alvares. On account of the own pleadings of the plaintiffs, the Gift Deed dated 20/01/1933 cannot be given any value.
14. It is seen from the evidence on record that P.W.1 who is the daughter of the plaintiffs and who holds power of attorney, on their behalf, has deposed that after the death of her grand father Manuel Silvestre, a deed of partition was executed on 21st February 1921, and all the four properties except the right to 1/8th of the house property was allotted to her grandmother Inez. The above deposition of P.W.1 is contrary to the pleadings. She has produced the Deed of partition dated 21/12/1921 as Exhibit P-2. A bare perusal of this Deed of Partition reveals that P.W.1 has not stated the correct facts. As per the said Deed of partition, entire urban property with residential house bearing land registration no. 12970 and the other suit properties were allotted to Ana Piedade Ines Mafalda Alvares. There is no dispute that upon the death of said Manuel Silvestre da Costa, the suit properties including the house property were allotted to his wife that is Ana Piedade Ines Mafalda Alvares by virtue of said Deed of Partition dated 21/12/1921. It is further seen from the records that after the death of Ana Piedade Ines Mafalda Alvares, the Inventory Proceedings were initiated by Benedito Francisco da Costa, the father of the defendant no.1. It is noticed from the said Inventory Proceedings that plaintiff no.1 was a party to the same. The certificate of Inventory Proceedings is at Exhibit DW1/A. It is seen that 3/4th of the house property and the other suit properties were allotted to Benedito Francisco da Costa in the said Inventory Proceedings. The plaintiff no. 1 was not allotted any property in the said Inventory Proceedings. The Inscription Certificate which is at Exhibit DW1/B-colly reveals that pursuant to the said allotment in the Inventory Proceedings, 3/4th of the house property and other suit properties have been inscribed in the Land Registration Office in the name of Benedito Francisco da Costa. There is no evidence on record with respect to the ownership to remaining 1/4th of the house property bearing land registration no. 12970. There is no evidence as to how the paternal aunt of the plaintiff no. 1 namely Ana Rita Matildas da Costa came to own 1/8th share in the said house property.
15. It has been rightly held by the first Appellate Court that the plaintiffs have not produced any documentary evidence to show that 1/8th part of the house property belonged to Ana Rita Matildas da Costa. The plaintiffs have not explained as to how 1/8th part of the house property could be gifted by the said Ana Rita Matildas da Costa to the plaintiff no.1. It may be that the defendants have not proved their right to the remaining 1/4th of the house property but that does not mean that the plaintiffs get right to 1/8th of the same.
16. Since it is not at all proved by the plaintiffs that Ana Rita Matildas da Costa had 1/8th share in the house property, the question of she gifting the said share to the plaintiff no. 1 does not arise. The said Gift Deed dated 20/01/1933 cannot therefore prove that the plaintiffs are co-owners of the house property.
17. As far as the possession and enjoyment of the suit properties including the house property is concerned, there is concurrent finding by both the courts below that the plaintiff could not prove the joint possession and enjoyment by the plaintiff no.1 and father of the Defendant no.1 namely Benedito Francisco da Costa.
18. In the circumstances above, the substantial question of law, as formulated, gets answered against the plaintiffs.
19. In the result, there is no merit in the second appeal. The same is dismissed. However in the facts and circumstances of the case parties to bear their own costs.