Judgment:
U.V. Bakre, J.
The above Second Appeal No. 2/1998 arises out of Judgment and Decree dated 06/10/1997 passed by the learned Additional District Judge, Mapusa (first Appellate Court, for short) in Regular Civil Appeal No. 40 of 1993, which was filed by defendants no. 1, 2 and 3 of Regular Civil Suit No. 65 of 1990 against the judgment and decree dated 31/03/1993 passed by the learned Civil Judge, Junior Division, Sattari at Valpoi (trial Court, for short), in the said suit.
2. The above First Appeal No. 11/2003 has been filed against the Judgment and Award dated 17/09/2002 passed by the learned Additional District Judge, Mapusa(reference Court, for short), in Land Acquisition Case No. 98 of 1989.
3. The subject matter of the Second Appeal No.2/98 is 1/3rd share of Shaikh Aziz Shaikh Hassan, in the property known as Moxichem Mol, bearing survey nos. 14/1, 14/2 and 24/1 of village Nanus in Sattari Taluka. The subject matter of the First Appeal No. 11/03 is land admeasuring 30,135 square metres from said survey no. 24/1 of Nanus village. A statement was made by learned Senior Advocate Shri S. D. Lotlikar, in the Second Appeal, that the Gift Deed dated 20/05/1968 and the Sale Deed dated 22/07/1968 which were the subject matter of the suit from which the above Second Appeal arises, have already been set aside in the said Land Acquisition Case No. 98 of 1989 against which the above First Appeal has been filed. The parties to both the appeals showed their willingness that the Second Appeal be heard along with the First Appeal and that they would approach Hon'ble the Chief Justice so that the First Appeal and Second Appeal could be allotted to and heard by one Judge of this Court. Accordingly, in view of the order of the Hon'ble the Chief Justice, the First Appeal has been placed along with the Second Appeal for final hearing by the same Judge. Hence this common Judgment.
4. ShriShaikh Abdul Razak, the plaintiff in the said Regular Civil Suit No. 65 of 1990, who is respondent no. 2 in L.A.C. No. 98/89, had filed the said suit for following prayers namely:
a) That, this Hon'ble Court be pleased to pass a Decree of Declaration to the effect that Gift Deed dated 20th May, 1968, executed by Shri Shaikh Azis Shaikh Hassan in favour of Shri Shaikh Azamatulla Shaikh Hassan, in absence of approval and signatures of other Co-Owners namely Shri. Shaikh Idruz Shaikh Issub or his legal heirs and of Shri. Shaikh Karim Shaikh Abdul or his legal heirs, is ab-initio illegal and void and hence the same is not binding on the Plaintiff and that the same is delivered as cancelled in the Official Records of Sub-Registrar of Bicholim;
b) That this Hon'ble Court be pleased to pass a Decree of Declaration to the effect that the Sale Deed dated 22nd July, 1968, executed by the defendants no. 2, 3, 4 and 5, in favour of the defendant no. 1, in absence of approval and signatures of other Co-Owners namely Shri. Shaikh Idruz Shaikh Issub or his legal heirs and of Shri. Shaikh Azis Shaikh Hassan on the said Sale Deed, is ab-initio illegal and void and therefore the same is not binding on the Plaintiff and therefore the Sale Deed dated 22/7/1968 is delivered as cancelled in the Official Records of Sub-Registrar of Bicholim;
c) That this Hon'ble Court be pleased to pass a Decree of Declaration to the effect that the Compromise Decree dated 22/12/1986 passed by the Civil Judge, Senior Division, Bicholim in Civil Suit No. 97/1980 is ab-initio illegal and void and hence the same is quashed/set aside and the Civil Suit No. 97/1980 is dismissed being barred by Law of Limitation;
d) That this Hon'ble Court be pleased to pass a Decree of Declaration to the effect that the Plaintiff is lawful owner of portion of land admeasuring 10,000 square metres of Suit Property known as “Moxichem Mol” situated at Nanus, Valpoi, Sattari and surveyed under No. 24/1 of Nanus Village and which is described in the Sale Deed dated 22nd July, 1968;
5. Case of the plaintiff, in the said R. C. S. No. 65/90, in short, was as follows:-
In the Village Nanus of Sattari Taluka, there exists an immovable property known as “Moxichem Mol” described in the Land Registration Office under no. 10510 of Book B-27 (New) and bearing survey nos. 14/1, 14/2 and 24/1. Originally, the said suit property was purchased by Shri Shaikh Karim Shaikh Abdul, Shri Shaikh Idruz sheikh Issub, and Shri Shaikh Azis Shaikh Hassan, later two then minors and represented by their fathers and administrators namely Shri Shaikh Issub and Shri Shaikh Hassan, from Shri. Jose Salvador Lopez Pereira and his wife Maria Lopes Pereira de Almeida Saloma and her daughter Maria Eugenia Lopes de Almeida Saloma by Sale Deed dated 10/09/1924. Thus, Shri Shaikh Karim Shaikh Abdul, Shri Shaikh Idruz Shaikh Issub, and Shri Shaikh Azis Shaikh Hassan, are entitled to 1/3rd share each of the suit property which is not divided or partitioned amongst the co-owners. Shri Shaikh Azis Shaikh Hassan had obtained a loan of Rs. 3966/- for Poultry Farm and Rs. 4352/- for Horticulture from the Government of Goa for the purposes of starting Poultry Farm business in his 1/3rd share of the suit property, which loan was repayable in installments in stipulated time limit. In the meanwhile, Shri Shaikh Azis Shaikh Hassan had transferred his 1/3rd share of the suit property by way of gift to his younger brother namely Shri Shaikh Azamatulla by means of Gift Deed dated 20/05/1968, without consent, approval and signatures of other co-owners namely Shri Shaikh Karim Shaikh Abdul or his legal heirs and of Shri Shaikh Idruz Shaikh Issub or his legal heirs. Shri shaikh Azis Shaikh Hassan had incorporated clause no. 5 in the said Gift deed to the effect that the donee agrees to accept the said properties with encumbrance which at present exists on the said properties, with clear intention that donee should pay all debts of Shri Shaikh Azis Shaikh Hassan. However, soon thereafter, vide sale deed dated 22/07/1968, the donee Shri Shaikh Azamatulla Shaikh Hassan and his wife Smt. Aminabi along with Shri. Abdul Gaffur Aga and his wife Shabiram Bi, (defendants no. 2, 3, 4 and 5) and late Smt. Hafiza Bi Shaikh Karim sold a portion of the suit property ad-measuring 10000 square meters, from survey no. 24/1 to Shri Shaikh Kassam (defendant no. 1). Shri Shaikh Azis Shaikh Hassan could not repay the loan to the Government of Goa in stipulated time limit, due to which, the Government of Goa, through the Office of Mamlatdar of Sattari Taluka, by Order of Attachment of Immovable Property dated 16/11/1976, under provisions of the Land Revenue Code, 1968 (The Code, for short) had attached and put to auction the title/interest in 1/3rd share of the suit property belonging to Shri Shaikh Azis shaikh Hassan for recovery of outstanding loan amount with due interest thereon from him. The said 1/3rd share in the suit property was purchased by the plaintiff and Certificate of sale of attached immovable property, in Form No.9, under Rule 14 (b) of the Goa, Daman and Diu Realization of Land Revenue Rules, 1969, was issued, thereby declaring the plaintiff to be a lawful owner of the said 1/3rd share, which was originally belonging to Shri Shaikh Azis Shaikh Hassan. During the proceedings before the Mamlatdar, Shri Usman Khan Carol and Shri Shaikh Azamatulla Shaikh Hassan(defendant no.2) had raised objection to the attachment and sale of 1/3rd share of the suit property belonging to Shaikh Azis Shaikh Hassan. The Mamlatdar of Sattari, by an order bearing no. LRC/13/76 dated 13/09/1977, rejected the objections. On the strength of the said purchase made by him, under the sale deed dated 22/07/1968, Shri Shaikh Kassam (defendant no.1) filed suit being Civil Suit No. 97 of 1980 for permanent injunction, against the defendants no. 2 to 5 to restrain them from interfering with or obstructing him in enjoyment of the property purchased by him and for other reliefs. In the said suit, the defendants no. 1 to 5, fraudulently and in collusion with each other, filed consent terms on 22/12/1986, in which the claim of the defendant no. 1 namely Shri Shaikh Kassam was admitted by defendants no. 2 to 5 and accordingly the learned Civil Judge, Senior Division, Bicholim passed a Decree on 22/12/1986 thereby allowing the claim of the defendant no.1.
6. Defendants no. 1, 2 and 3, in R. C. S. No. 65/90, in their written statement, inter alia, stated as follows:
The suit property was never mortgaged or subjected to any encumbrances. It was not necessary to take consent or approval or signature of other co-owners of the suit property, while executing the Gift Deed dated 22/05/1968, as the same was within the powers of the owner, who gifted it. Shri Shaikh Aziz Shaikh Hassan, transferred his 1/3rd right to Shaikh Azamatulla by way of gift and therefore no consent under the law was required to be taken before such transfer. The Mamlatdar was hand in gloves with the plaintiff and without following the procedure as laid down in The Code and also without any legal base, he auctioned the 1/3rd share of suit property. However the said decision of Mamlatdar is under appeal before the higher authority, which is pending. The Mamlatdar acted in excess of and beyond jurisdiction since he published a property namely Morgudo or Morgudichem Barod situated at Nagvem, Sattari, but surreptitiously put the 1/3rd share of the suit property for auction when the debtor had no interest or right with respect to the same. The said auction was neither published in the official Gazette or in newspaper nor there was display of notice on the notice board of concerned Gram Panchayat.
7. The defendants no. 4 and 5, in said R. C. S. No. 65/90 also filed their written statement and they stated that they were parties to the sale deed of 22/07/1968 as the defendants no. 2 and 3 coerced them and used undue influence on them to sign the same and that they have not received any consideration for the same. They further alleged that the compromise decree dated 22/12/1986 passed in Civil Suit No. 97 of 1960 is not binding on them. The Defendants no. 4 and 5 otherwise supported the plaintiff.
8. In the said R. C. S. No. 65/90, the plaintiff examined Shri Shaikh Aziz Shaikh Hassan, his power of attorney holder as PW.1. The defendants examined Shri Ismail Khan Karol, the power of attorney holder of the defendant no. 1 as DW.1. Upon consideration of the evidence on record, the learned trial Court, held that plaintiff could not prove that he is entitled for declaration that Gift Deed dated 20/05/1968; sale deed dated 22/07/1968 and compromise decree dated 22/12/1986 are ab-initio illegal and void. However the trial Court partly decreed the suit and declared that the decree passed in Regular Civil Suit No. 97 of 1980 is not binding on the plaintiff and further that the sale deed dated 22/07/1968 executed by defendants no. 2 to 5 in favour of the defendant no. 1 is not binding on the plaintiff and lastly that the plaintiff has 1/3rd share in the suit property.
9. In Regular Civil Appeal No. 40 of 1993, which was filed by defendants no. 1, 2 and 3 of R. C. S. No. 65/90, the first Appellate Court held that since the trial Court decided all issues which were required to be proved by the plaintiff, against the plaintiff, it erred in granting the reliefs to the plaintiff due to which the impugned judgment is liable to be set aside. The first Appellate Court observed that there is no dispute that the plaintiff has purchased the suit property in public auction. According to the first Appellate Court, the question whether the purchase made by the plaintiff of the suit property in public auction is legal or illegal was not an issue for determination by the court. The first Appellate Court further held that merely because a compromise decree was passed in Civil Suit No. 97 of 1980 that by itself does not mean that cause of action had arisen to the plaintiff to file the suit. The first Appellate Court further held that even assuming that Shaikh Karim Shaikh Abdul and his legal heirs and Shaikh Idrus Shaikh Issuf and his legal heirs have not signed the Gift Deed dated 20/05/1968, the plaintiff could not make any grievance about the same and it is for the parties concerned to challenge the legality of the Gift Deed and the plaintiff has no locus standi to challenge the same. The first Appellate Court rendered similar finding with regard to sale deed dated 22/07/1968. The first Appellate Court further held that the relief regarding the Gift Deed and the Sale deed are barred by law of limitation. The first Appellate Court further held that since the compromise decree dated 22/12/1986 was passed on the basis of sale deed dated 22/07/1968 and since the plaintiff has no locus standi to challenge the said Sale Deed, the plaintiff also has no right to challenge the Compromise Decree. The first Appellate Court further found that there is no averment in the plaint that the defendants have denied or that the defendants are interested in denying the title of the plaintiff to the suit property. He, therefore, held that the plaintiff is not entitled to declaration that he is the owner of the suit property. In the result, the appeal filed by defendants no. 1, 2 and 3 was allowed and the impugned judgment and decree dated 31/03/1993 passed by the learned trial Court was quashed and set aside and the plaintiff's suit no. 65/90 was dismissed.
10. The plaintiff of the said original suit no. 65/90 has filed the present Second Appeal which has been admitted on the following substantial questions of law:
(I) Whether the appellant had no locus standi to challenge the Sale Deed and the Gift Deed in respect of the suit property in view of the fact that he had become absolute owner of one-third share in the suit properly, only after the execution of the Gift Deed and the Sale Deed?
(II) Whether the purchase made by the appellant of the one third share of the suit property in a public auction held under the provisions of the Land Revenue Code, would vest the property, namely one third share of the suit property in the appellant free from all encumbrances?
(III) Whether, in view of contents of the Gift Deed which made it conditional, the same would prevail over the subsequent purchase, by the appellant, of the said property in public auction under the land revenue code, which was held for recovering the dues of the Donor as arrears of land revenue?
(IV) Whether the very fact that the respondent had obtained a consent decree acknowledging the rights of respondent no.1 to a portion of the suit property admeasuring 10,000 square meters, a suit to which the appellant was not a party, would constitute a denial of the right or title of the appellant in respect of the suit property making his suit for declaration maintainable under the law?
(V) Whether the cause of action accrued in favour of the appellant to challenge the Sale Deed dated 22/07/1968 and Gift Deed dated 20/05/1968 on 22/12/1986, when the Consent Decree was passed and whether consequently the suit was well within the period of limitation?
11. In the Land Acquisition Case no. 98 of 1989, the Government had acquired an area of 30,135 square meters of land from survey no. 24/1 of the suit property “Mauxichem Mol”, situated at Nanus, Sattari for the purpose of construction of Sports Complex and an award was made thereby determining the amount of compensation. However, since there was dispute between the interested parties, reference was made, under section 30 of the Land Acquisition Act, to the District Court by the Land Acquisition Officer for apportionment.
12. In that L. A. C. No.98/89, the applicants Usman Khan Carol; Ismail Khan Carol and Sheikh Kassim, in their Written Statement, alleged as follows:- Shaikh Aziz Sheikh Hassan, by gift deed dated 20/5/68, gifted his 1/3rd share in the suit property to Sheikh Azamtulla Sheikh Hassan. Said Sheikh Azamtulla, his wife Smt. Aminabi, Hafiza Bi – widow of Sheikh Karim, Abdul Gaffor Aga - son-in-law of Sheikh Karim and Smt. Shabiram Bi – daughter of Sheikh Karim/wife of Abdul Gaffor Aga sold 5,000 square metres of said land to Ismail Khan Carol, by registered Sale Deed dated 22/7/1968. Same persons named above also sold 10,000 square metres of said land to Sheikh Kassam, by registered Sale Deed dated 22/7/1968. Again, same persons above named sold 5000 square metres of the said land to Usman Khan Carol by registered Sale Deed dated 22/7/1968. The Mamlatdar of sattari, in collusion with Sheikh Abdul Razak, declared that the land of these applicants is auctioned in satisfaction of loan/debt to the Government by Sheikh Aziz Sheikh Hassan. The order of Mamlatdar is illegal and is challenged in the Court of Collector, which appeal is pending. Initially, the land known as “Margundyachem Borod”, situated at Nagvem-Sattari belonging to Sheikh Aziz was declared to be auctioned but surreptitiously, the land of the name “Mauxichem Mol” was declared for auction. The applicants therefore claimed compensation awarded for 20,000 square metres of the acquired land.
13. The applicant, in the said L. A. C. 98/89, namely Shaikh Kassam was the defendant no. 1 in the said Regular Civil Suit No. 65/90. But the applicants, Usman Khan Carol and Ismail Khan Carol were not parties to the said Suit No. 65/90,
14. The respondent no. 2 in said L. A. C. 98/89, namely Shaikh Abdul Razak, who was the plaintiff in Regular Civil Suit No.65/90, filed his written Statement, in the same lines as in the plaint in that suit.
15. The respondents no. 4 and 5, in said L. A. C. 98/89, namely Smt. Shabirambi and her husband Adbul Gaffur Aga, who were the defendants no. 4 and 5 in the said Regular civil Suit No. 65/90, in their Written Statement, alleged the same facts as averred in the Written statement filed by them in the said suit.
16. In the said L. A. C. 98/89, the applicants examined Usman Khan Karol as AW.1; Shri Shaikh Hassan Shaikh Abdul as AW.2 and Shri Adam Aga Karim Aga as AW.3. The respondent no. 2 examined his power of attorney holder namely Shri Shaikh Rashik Shaikh Aziz, as RW.1. Learned reference Court held that Azamtulla had accepted the gift made by Sheikh Aziz Sheikh Hassan with the encumbrance, namely the loan secured by his predecessor and therefore the execution of the sale deed by the Donee/Vendor Azamtulla would still continue to be circumscribed by the original encumbrance which had not been discharged, at the time of the sale deeds. The reference Court therefore refused to rely upon the gift deed and the sale deeds and held that Shri Usman Khan Carol, Shri Ismail Khan Carol and Shri Shaikh Kassim were not entitled to receive the compensation. The reference Court held that Shri Shaikh Abdul Razak, by virtue of the sale certificate and purchase in auction of the share of Sheikh Aziz Sheikh Hassan, has established that he is entitled to 1/3rd right, along with Smt. Xec Xabirambi and Shri Gaffar Aga. The reference Court ordered that compensation shall be apportioned equally amongst Shri Shaikh Abdul Razak, Smt. Xabirambi and legal heirs of late Shri Gaffar Aga.
17. ShriUsman Khan Carol and Shri Shaikh Kassim have filed the above First Appeal against the Judgment and Award dated 17/9/2002 passed by the Reference Court in the said L. A. C. No. 98/89.
18. Mr. Lotlikar, learned senior counsel on behalf of Shri Shaikh Abdul Razak, the plainitff of R. C. S. No. 65/90, argued that the Mamlatdar had conducted the auction proceedings under Chapter X of The Code and in terms of section 159 of The Code, he had considered the third party claims of defendants no. 1 and 2 and had rejected the said claims. He further pointed out that in terms of the sub-Section 2 of Section 159 of The Code, said defendants no. 1 and 2 had to file a civil suit to establish their right to the property attached or proceeded against within one year from the date of the order of the Mamlatdar, which has not been done by the said defendants on account of which the order of Mamlatdar has become final. Learned Senior Counsel further argued that by sale deed dated 22/07/1968, the defendants no. 2, 3, 4 and 5 sold 10000 square meters from the same 1/3rd share purchased by plaintiffs to the defendant no. 1 and subsequently said defendant no.1 filed civil suit no. 97/1980 against the defendants no. 2, 3, 4 and 5 and late Smt. Hafiza Bi Shaikh Karim for permanent injunction and in collusion with one another they filed compromise terms in the said suit thereby admitting the claim of defendant no.1. Learned senior counsel contended that this compromise decree would constitute cloud of suspicion over the title of plaintiff since third parties may obtain loan on his land by relying upon the said compromise decree and therefore the plaintiff has cause of action. According to Mr. Lotlikar, the first Appellate Court has not reversed the finding of the trial Court to the effect that the plaintiff is the owner of 1/3rd share in the suit property since the first Appellate Court has held that there is no dispute that the plaintiff has purchased the suit property in public auction. He further argued that since the plaintiff has become absolute owner of the suit property and since there is a cloud of suspicion over his title, he was entitled to the declaration that he is the owner of the suit property and that the sale deed dated 22/7/1968 and the compromise decree dated 22/12/1986 in civil suit no. 97/1980 are not binding on the plaintiff. He therefore prayed that the Second Appeal be allowed and the Decree of the trial Court be restored.
19. Per contra, Shri D. J. Pangam, learned counsel for defendants no. 1, 2 and 3 in R. C. S. No. 65/90, argued that the foundation on which the said suit no. 65/90 was filed is that the other co-owners were not parties to the gift deed. He pointed out that when this Gift Deed was executed, the plaintiff was not the owner and therefore the plaintiff has no locus standi to challenge and it is the other co-owners who could have challenged the said gift deed. He further argued that merely because there was a clause in the said Gift Deed about encumbrances, the same cannot make the Gift Deed, invalid. He invited my attention to the said order of Mamlatdar in case no. LRC/13/76 wherein it is specifically mentioned that the property has been auctioned, inclusive of encumbrance. According to Mr. Pangam, the said encumbrance is the said gift deed. He argued that there is no evidence to prove that 1/3rd share of Shaikh Aziz Shaikh Hassan was mortgaged when he had obtained the loan. There is also no evidence that the said 1/3rd share was charged in favour of the Government. According to learned counsel, there was no encumbrance on the property and hence Mr. Shaikh Azamatulla could get the same in gift. Therefore, he submitted that the clause about encumbrance is superficial and non-est. He submitted that prayer clause (a) which was about the Gift Deed was not granted by the trial Court and no appeal was filed by the plaintiff against the same and hence the same has become final. He further pointed out that in the plaint there was absolutely no prayer for declaration regarding 1/3rd share and that the prayer was regarding a plot admeasuring 10000 square meters only which is very less as compared to the 1/3rd share. According to Mr. Pangam, the plaintiff has not shown acquisition of title flowing from auction and therefore he has no cause of action.
20. Mr. A. Mashelkar, learned advocate for the legal representatives of deceased defendant no. 4 adopted the arguments of Senior Advocate Mr. S. D. Lotlikar.
21. In the First Appeal No. 11 of 2003, Mr. D. J. Pangam, learned counsel on behalf of the appellants, namely the defendant no. 1 of R. C. S. 65/90 and Shri Usman Khan Carol adopted his arguments advanced in the Second Appeal whereas Mr. A. Mashelkar, learned Advocate for respondents no. 2, 3, 4 (I) to (viii) and 1 (a to e) adopted the arguments advanced by Mr Lotlikar, learned Senior counsel, in the Second Appeal.
22. Mr. V. A. Lawande, learned advocate for the legal representatives of the deceased respondent no.5 namely Shri Ismail Khan Carol, in First Appeal No. 11/2003, argued that on the date of auction, the person against whose property the auction was held had no right to that property. He further argued that in the year 1968 there were three sale deeds and that all the parties to those sale deeds were not joined as parties to said R. C. S. 65/89. He pointed out that Shri Ismail Khan Karol is not a party to the said suit. He further submitted that the plot of said property was sold to the deceased respondent no. 5(Ismail Khan Carol) on 30/07/1968 and the sale deed was registered on 18/08/1968 but there is no declaration about this sale deed, asked for in R. C. S. 65/89.
23. I have gone through entire material on record.
24. Chapter X of The Code deals with realisation of land revenue. Section 128 of The Code provides for sale of defaulter's immovable property. Under this provision, the Collector may also cause the right, title and interest of the defaulter in any immovable property other than the land on which the arrear of land revenue is due to be similarly attached and sold. Section 132 of The Code provides that all sales of property, movable or immovable, under this Chapter, shall be by public auction held in accordance with the provisions of the next succeeding sections. Section 153 of The code provides that after a sale of any occupancy or holding has been confirmed in the manner aforesaid, the Collector shall put the person declared to be the purchaser into possession of the land and shall cause his name to be entered in the land records as occupant or holder in lieu of that of the defaulter and shall grant him a certificate to the effect that he has purchased the land to which the certificate refers. Section 159(1) of The Code provides that If any claim is set up by a third person to the property attached or proceeded against under the provisions of this Code, the Collector may on a formal inquiry held after reasonable notice, admit or reject it. Sub-Section (2) of Section 159 of The Code provides that the person against whom an order is made under sub-section (1) may, within one year from the date of the order, institute a suit to establish the right which he claims to the property attached or proceeded against; but subject to the result of such suit, if any, the order shall be conclusive.
25. The Gift Deed dated 20/5/1968 pertains to 1/3rd share in the property “Mossichem Mol” situated at Nanus in Sattari Taluka and bearing land registration No. 10510, belonging to Shaikh Aziz Shaikh Hassan. In this Gift Deed it is clearly mentioned that the donee Shri Xec Azamatulla agrees to accept the said properties with encumbrance which at present exists on the said properties. In fact, in the said gift deed following was further mentioned but cancelled:- “The donee further agrees to pay all debts which the doner has secured by mortgaging the said properties.” Admittedly, the doner had secured loan from the Government Of Goa,which had remained unpaid. Shri Shaikh Aziz Shaikh Hassan(PW. 1), the power of attorney holder of the plaintiff in said R. C. S. No. 65/90 has stated that he requested Shaikh Azamatulla to pay the said loan by instalments of Rs. 50/- per annum and made the gift deed of his 1/3rd share in the suit property in favour of Shaikh Azamatulla. PW. 1 has stated that the condition of the gift was that the property could go to him only if the loan is paid off. If the encumbrance mentioned in the gift deed was not the unpaid loan of the doner, then it was for the donee i.e. the defendant No. 2 of said R. C. S. 65/90 to prove as to what it was. The trial court has held that the defendants no. 1, 2, and 3 have failed to prove that sheikh Aziz had not mortgaged the 1/3rd portion of the suit properties.
26. The Order dated 13/09/1977 passed in case no. LRC/13/76 pertains to the title and interest to 1/3rd of the landed property/house erected therein, known as “Mossichem Mol” situated at Nanus of Sattari Taluka bearing land registration no. 10510, belonging to Shri Xec Aziz Xec Hassan. The said Order of the Mamlatdar is at Exhibit PW-1/G in said R. C. S. No. 65/90. Notice under Rule 12(2)(c) 0f the Goa, Daman and Diu Realization of Land revenue Rules, 1969, in respect of the said property is produced on record as Exhibit PW-1/F in the said R. C. S. No. 65/90. The Order at Exhibit PW-1/G deals with the objections raised by Shri Usman Khan Karol and Shri Shaikh Azamatulla. The objection of Shaikh Azamatulla was specifically that said 1/3rd right of defaulter in the said property was donated to him. The learned Mamlatdar found that by the said Gift deed, the donee had accepted the gift with encumbrance existing thereon. The Mamlatdar was aware of the claim of shri Usman Khan Carol that he and others had purchased plots of the said property from said Shri sheikh Azamatulla. He held that it was obligatory on the part of said Shri Sheikh Azamatulla to clear off the Government dues before selling any area out of the said property to any persons. The Mamlatdar has observed that the transfer of plots from said 1/3rd right , by means of sale deeds, etc., would carry with them the encumbrance of government dues and it is the responsibility of the objection-petitioners to clear the said dues. By the said Order, objections have been rejected and the auction sale has been confirmed. The property has been auctioned inclusive of encumbrance and the parties interested have been advised to seek remedy from competent Civil Court, if so desired. A certificate of sale of attached movable property has also been issued in the name of plaintiff and this is at Exhibit PW1/H, in the said R. C. S. No 65/90. The Defendants no. 1 and 2 of R. C. S. 65/90 did not file any Civil Suit challenging the order of the Mamlatdar due to which the said order has become conclusive. The plaintiff is the owner of the said 1/3rd title/interest of Shri shaikh Aziz Shaikh Hassan, in the said property.
27. The learned trial Court, in R. C. S. No. 65/90 has declared that the plaintiff has 1/3rd share in the suit property. In paragraph 7 of the judgment impugned in the above Second Appeal, the first Appellate Court has held that there is no dispute that the plaintiff has purchased the suit property in public auction and further that the question as to whether the purchase made by the plaintiff, of the suit property in public auction, is legal or illegal was not an issue for determination by the court. Therefore, the first Appellate Court has also agreed that the plaintiff is the owner of 1/3rd share in the suit property. Merely because according to the first Appellate Court, there is no cause of action for the plaintiff to file the suit, the first Appellate Court has dismissed the said suit. In my view, it is wrong to say that according to the plaintiff cause of action arose because a compromise decree was passed by the Civil Judge, Senior Division, Bicholim. The cause of action arose because the defendants no. 2, 3, 4 and 5 and late Smt. Hafiza Bi Shaikh Karim sold the land admeasuring 10000 square meters from 1/3rd share of Shaikh Aziz Shaikh Hassan to the defendant no. 1 and the said defendant no.1 fraudulently and in collusion with the said defendants no. 2, 3, 4 and 5 and late Smt. Hafiza Bi Shaikh Karim filed the suit no 97/1980 and further filed compromise terms therein thereby admitting the claim of the defendant no. 1. On account of the above, there was a cloud over the title of the plaintiff, to the same 1/3rd share, which was acquired by him by virtue of the certificate of purchase. It would therefore be not correct to say that there was no cause of action for the plaintiff.
28. It may be that the plaintiff is not entitled for declaration that the Gift Deed dated 20/05/1968 is illegal and void or that the sale deed dated 22/07/1968 is illegal and void. Similarly, even if it is held that the plaintiff is not entitled for declaration that the compromise decree dated 20/12/1986 is illegal and void, then also, in terms of the Order dated 13/9/77 of Mamlatdar and the certificate of purchase, the plaintiff is certainly entitled to declaration that he is the owner of said 1/3rd share and that the sale deed dated 22/07/1986 and compromise decree, both of which pertain to land from 1/3rd share purchased by the plaintiff, are not binding on the plaintiff. In fact, once the plaintiff is held to be the owner of the said 1/3rd share of Shaikh Aziz Shaikh Hassan, the other documents like Gift Deed, Sale deeds, etc. hold no validity when they pertain to the 1/3rd share belonging to the plaintiff.
29. It is true that by prayer clause (d) in the said R. C. S. No. 65/90, the plaintiff had prayed for declaration that he is the lawful owner of the portion of land admeasuring 10000 square meters of suit property. However, it should be kept in mind that in paragraph 11 of the plaint, the plaintiff has pleaded that he is entitled in law to a decree of declaration that he is lawful owner of portion admeasuring 10000 square meters, being part and parcel of 1/3rd share, bought by the plaintiff in public auction, of the suit property and surveyed under 24/1 of Village Nanus, Valpoi, Sattari. Be that as it may, the trial court has declared that the plaintiff has 1/3rd share in the suit properties. The first Appellate Court has held that there is no dispute that the plaintiff has purchased the suit property in the public auction.
30. In view of the discussion supra, the substantial questions at serial nos. (ii), (iii) and (iv) are answered in favour of the plaintiff. The substantial questions at serial Nos. (I) and (v), in my view, do not arise. The plaintiff is entitled to the reliefs that have been granted by the trial Court, in R. C. S. No. 65/90.
31. The Judgment and Award of the reference Court in L. A. C. No. 98/89 is in accordance with settled principles of law, based on proper appreciation of the evidence on record. No interference is called for.
32. In the result, I pass the following:
ORDER
a) The Second Appeal is allowed.
b) The impugned judgment and decree passed by the first Appellate Court in Regular Civil Appeal No. 40/1993 is quashed and set aside.
c) The Judgment and decree passed by the trial Court in Regular Civil Suit No. 65 of 1990 is restored back.
d) The First Appeal No. 11/03 is dismissed.
e) In the facts and circumstances of the case, parties to bare their own costs.