Oral Order:
Heard Shri V. Menezes, the learned Counsel appearing for the appellants.
2. The above appeal challenges the judgment and decree passed by the Courts below whereby the suit filed by the respondent no.1 inter alia to declare the right of ownership over the suit property came to be decreed.
3. The respondent no.1 filed the suit on the ground that they are the owners in possession of the suit property surveyed under no.63/1 and 65/2 of Village of Majorda which according to the said respondent is a part and parcel of the property described in Land Registration Office under no.1944. The property was thereafter described by inscription no.11809 in favour of Joao Miguel Gomes and others. It is further their case that by Deed of Gift dated 12/03/1916, the suit property was gifted and partitioned. It is further their case that by Deed of Sale dated 30/09/1977, they purchased half share of Maria Fatima Filomena and Oliveira Vas of the suit property and as such they became owners in possession of an area of 20, 750 square metres of the property surveyed under no.63/1 and an area of 13,250 of the property surveyed under no.65/2 totally admeasuring an area of 34,000 square metres of the suit property. It is further their case that the name of the respondent no.2/defendant no.1 has been recorded in the occupants column in respect of the property surveyed under no.63/1 and that the name of the appellants has been fraudulently shown as occupants in Survey No.65/2. Consequently, as the appellants and the said respondent no.2 were trying to encroach in the suit property the suit came to be filed claiming reliefs for declaration that the respondent no.1 is the owner in possession of the suit property in respect of property surveyed no.63/1 and 65/2 as shown in the plan and also for an injunction restraining the appellants and respondent no.2 from in any way interfering in the property and for mandatory injunction. The respondent no.2/defendant no.1 filed the written statement inter alia contending that the respondent no.1 is in no way connected with the property surveyed under no.65/2 and that the respondent no.1 and the appellants are in collusion with one another. It is further their case that the property surveyed under no.63/1 is not part of the larger property described under no.1944. It is further their case that respondent no.1 was never in possession of the property surveyed under no.63/1 and that the same was always in possession of the said respondent no.2. It is further their case that the property surveyed under no.63/1, 63/3 and 63/4 originally belonged to the father of the said respondent no.2 and that upon his death the said respondent and his wife became exclusive owners thereof. It is further their case that the said respondents are owners in possession of the property surveyed under no.63/1 which is part and parcel of the property described in Land Registration Office under no.36572 which was owned by the father of the said respondent which thereafter devolved upon the said respondent.
4. The appellants also filed their written statement disputing the claim put forward by respondent no.1. It is further their case that the suit property belongs to the said appellants and a small portion thereof belongs to the respondent no.2 to the extent of an area of 495.50 square metres of survey number 63/1. It is further their case that they have been enjoying the suit property besides the said area openly, peacefully without any interference as a matter of right for the last over 55 years and consequently acquired right to the suit property by prescription and adverse possession.
5. Shri V. Menezes, the learned Counsel appearing for the appellants has pointed out that the lower appellate Court whilst considering the appeal preferred by the appellants has not at all scrutinized the evidence on record to come to any independent finding confirming the finding of the learned trial Judge. The learned Counsel has taken me through the impugned judgment passed by the lower appellate Court and pointed out that the learned Judge has only referred to the documentary evidence adduced by the respondents without scrutinizing as to whether respondent no.1 has established his right of ownership over the suit property. The learned Counsel further pointed out that non consideration of such material on record itself vitiates the judgment passed by the lower appellate Court which calls for interference by this Court. The learned Counsel further submitted that the suit filed by the respondents is for declaration of ownership and as such it was incumbent upon the respondents to adduce cogent evidence to establish their claim. The learned Counsel further pointed out that the lower appellate Court has not at all considered the material on record and as such has arrived at perverse finding in the impugned judgment to the effect that respondent no.1 is the owner of the suit property. The learned Counsel as such submits that there are substantial questions of law in the present appeal which call for interference by this Court.
6. I have duly considered the submissions of the learned Counsel appearing for the appellants and have gone through the impugned judgment and the material on record. On perusal of the records the suit filed by the respondent no.1 was inter alia on the ground that respondent no.1 has become owner in possession of an area of 20,750 square metres of the property surveyed under no.63/1 and an area of 13,250 square metres of the property surveyed under no.65/2 pursuant to two sale deeds executed in their favour one dated 30/09/1997. It was the case of the respondent no.1 that the property bearing survey no.63/1 and survey no.65/2 did not stand in the name of the respondent no.1 and as such according to the respondents the entries made therein were fraudulent. It is further the case of the respondent no.1 that they are the owners in possession of the said two portions of the property which forms part and parcel of this property and consequently in view of the interference of the appellants and respondent no.2 the suit came to be filed for a declaration of title.
7. The respondent no.2 who is the defendant no.1 in the suit disputed the claim put forward by the respondent no.1. It is his case that the portion which is recorded in his name in respect of the property surveyed under no.63/1 of village of Majorda is part and parcel of the property belonging to his father described in the Land Registration Office under No.36572. It is further his case that respondent no.1 has no right at all to the said property.
8. The appellants also filed their written statement disputing the claim put forward by the respondent no.1. It is inter alia the case of the appellants that besides an area of 492.50 square metres surveyed under no.63/1 the remaining portion of the property surveyed under no.63/1 as well as the portion of the property surveyed under no.65/2 is in their possession for last over fifty years over which the appellants have claimed their right of prescription and/or adverse possession.
9. The learned Judge after framing the issues and recording of evidence by judgment and decree dated 9/10/2009 after appreciating the evidence on record and considering the documentary evidence adduced by the parties partly decreed the suit of the respondent no.1 thereby declaring that the respondent no.1 is the owner in possession of the suit property surveyed no.63/1 and 65/2 of village of Majorda and that the entries in the records of right to that effect in the name of original appellants and the respondent no.2 in the survey records are wrong. The learned Judge further restrained the appellants and the respondent no.2 from interfering in any manner with the possession of respondent no.1 in respect of the suit property.
10. Being aggrieved by the said judgment and decree the appellants preferred an appeal before the lower appellate Court which came to be rejected by the impugned judgment and decree dated 17/09/2011.
11. Being aggrieved by the said judgment the present Second Appeal has been preferred.
12. On perusal of the judgment of the learned trial Judge it would be pertinent to note that in the cross-examination of DW1 who is the original defendant no.1 in the suit there is a specific statement recorded by the learned Judge that DW1 has specifically admitted the claim put forward by respondent no.1. The said witness has further admitted that the property surveyed under no.63/1 does not form part and parcel of the property claimed by the defendant no.1 in the written statement to be included in the property registered under Land Registration No.36572. Once the said claim of the respondent no.2 does not survive, it can be safely assumed that the suit property claimed forms part and parcel of the property registered in Land Registration Office under no.1944 which stands inscribed in the name of the predecessors-in-title of respondent no.1/plaintiffs.
13. Apart from that the learned Judge has also considered the claim of the appellants and has found that there is no material on record to establish their claim of adverse possession. On perusal of the written statement of the defendant no.2 the appellants herein there is no pleading to establish their claim of adverse possession. There is nothing disclosed as to when such possession started and when such possession was hostile. On the contrary, the learned trial Judge while passing the impugned judgment has found that it was the case of DW2 that originally he was permitted by the vendors of respondent no.1 to put up a structure in the suit property. This statement itself shows that the alleged claim of adverse possession has no basis. There is no evidence on record nor any pleadings to establish any hostility to establish their adverse possession.
14. The contention of Shri V. Menezes, the learned Counsel appearing for the appellants to the effect that the lower appellate Court has not scrutinized the evidence on record whilst passing the impugned judgment cannot be accepted. On perusal of the judgment of the lower appellate Court there are specific references made therein to the effect that the learned lower appellate Court has considered the land registration document and other materials including the sale deed relied upon by the respondent no.1 to come to the conclusion that the respondent no.1 is the owner in possession of the suit property. The Courts below have also come to the conclusion that the appellants are not in possession of the suit property. Hence, such concurrent findings cannot be reappreciated by this Court in a Second Appeal. The scope of interference by the High Court in Second Appeal under Section 100 of the Civil Procedure Code has been drastically changed and is strictly confined to cases involving a substantial question of law. This Court would not be justified in dealing with any Second Appeal without there being a substantial question of law. The said legal position will have to be kept in mind before interfering in the case of concurrent findings of fact. The question to interfere in the concurrent findings as such without there being any substantial question of law does not arise. Whilst going through the substantial question of law proposed by the appellants, I find that the same would not arise in the present Second Appeal. The respondent no.1 has for the reasons stated above on the basis of title documents including the land registration document and the duly registered Sale Deed have established their title over the suit property. I find no reason to interfere in the said concurrent findings arrived at by the Courts below. The learned Counsel appearing for the appellants has failed to point out any perversity in the findings in the impugned judgment. Apart from that, the lower appellate Court has rightly scrutinized the material on record and has come to the conclusion that the claim of adverse possession has not been established. The learned Counsel was not in a position to show any evidence on record to establish any adverse possession of the appellants in the suit property which would entitle the appellants to claim title to the suit property.
15. Considering the facts and circumstances of the case and considering the judgment passed by the Courts below, I find that there are no errors committed by the Courts below whilst passing the impugned judgment. As such no interference is called for in the impugned judgment. There are no substantial questions of law which require consideration of this Court. Hence, the second appeal stands summarily dismissed.