& Anr Vs. Alba Flora Herminda D'souza & Ors  Insc 208 (19 February 2008)
& Altamas Kabir
APPEAL NO.7349 OF 2001 A.K. MATHUR, J.
This appeal is directed against the order dated 5.3.2001 passed in Second
Appeal No.55 of 2000 by the High Court of Bombay at Goa whereby learned Single
Judge has set aside the order of the first appellate court and allowed the suit
of the original plaintiff and granted injunction restraining the defendants
from proceeding with the construction in the suit property or doing anything in
the suit property and the defendants were directed to restore the suit property
in its previous condition by filling up the foundation trenches and removing
anything done or might have been done by the defendants in the suit property.
Aggrieved against this order the present appeal was filed.
facts which are necessary for disposal of this appeal are that the suit
property was granted by the Governor General Do Estado Da India, to one Mr.
Antonio D' Souza on payment of Rupees four nine anna and twenty paise payable
each year to the State. Antonio D'Souza died leaving behind his heirs, his
children Jose Maria D' Souza and Elisa D' Souza. Jose Maria D' Souza expired
leaving behind her daughter Umbelina D' Souza.
D' Souza, husband of Umbelina D' Souza also died.
D' Souza died leaving behind the plaintiff and his brothers.
plaintiff was staying in Bombay, he requested one Amorim Velho, son
of Elisa D' Souza to look after the property and accordingly, he was looking
after the suit property till 1977. Thereafter, Joildo De Aguiar looked after
the property. In August,1981 Aguiar went abroad and returned in November,1981.
On his return he found that some construction work was undertaken by M/s.Pinto
Engineers and Contractors, Defendant No.3 through their agents. Then Robert D'
Souza filed a regular suit in the court of the Civil Judge, Junior Division, Panjim
and prayed that the defendants and their agents should be restrained by perpetual
injunction from interfering in any manner with the possession of the plaintiff
and his brothers in respect of the suit property and they be restrained from
proceeding with the works of construction in the suit property and to return
the suit property in its original condition. The defendants filed their written
statement and resisted the suit.
during the pendency of the suit the plaintiff died and respondents l to 7 were
brought on record as legal representatives of the deceased plaintiff. On
5.12.1998, learned Civil Judge, Junior Division, Panjim decreed the suit
restraining the defendants by perpetual injunction from interfering with the
possession of the plaintiffs in respect of the suit property and from
proceeding with the work of construction. Learned Civil Judge, Junior Division
further directed the defendants to restore the suit property in its previous
condition by filling up the foundation trenches and removing anything done in
the suit property. Thereafter a regular civil appeal being Regular Civil Appeal
No.1 of 1999 was filed in the Court of Additional District Judge, Panaji.
Learned Additional District Judge by order dated 10.4.2000 allowed the appeal
filed by the appellants and dismissed the suit.
respondent Nos. 1 to 7 filed a second appeal being Second Appeal No.55 of 2000
in the High Court of Bombay at Goa.
Single Judge of the High Court framed the following questions of law:
Whether the District Judge erred in dismissing and/or rejecting the claim of the
plaintiffs for permanent injunction on the ground that from the plaint it could
be inferred that the plaintiffs had admitted loss of possession of the suit
property in favour of the defendants/ respondents ?"
Single Judge after considering the matter allowed the second appeal and set
aside the order passed by the first appellate court and confirmed the decree of
the trial court.
the present appeal.
have heard learned counsel for the parties and perused the record. Learned
Single Judge after examining the matter found that in fact on the date Aguair
came to know that the defendant Nos. 1 & 2 had induced the defendant No.3
to believe that they were the owners and possessors of the suit property and
that on such a condition the defendant No.3 entered into an agreement with
Defendant Nos.1 & 2 whereby the defendant Nos.1 & 2 had promised to
sell the suit property to defendant No.3 and who was allowed to construct the
building consisting of flats in the suit property and Aguair also came to know
that on 1.9.1979 a deed of justification was recorded by the Registrar cum-Sub
Registrar and Notary, ex- Officio Ilhas, Goa wherein it was falsely declared
that Defendant No.1 was the owner and was in possession with exclusion of any
other persons of the suit property and had possessed the suit property for more
than 30 years. On further query he came to know that the defendant No.1 managed
to get the suit property registered in the records of the land revenue office
in her name and thereafter they got the plan for construction sanction approved
by the Panaji Municipality. But when Aguair raised objection then defendant No.3
stopped construction work for four days and thereafter he again started the
work by placing the steel reinforcement for casting footing. Therefore, the
plaintiff apprehended that they would proceed with further construction and
therefore, the plaintiff was constrained to file the suit. Therefore, on that
basis it was submitted before the learned Single Judge of the High Court that
from these facts it was more than apparent that the plaintiff lost the
possession. Therefore, at the relevant time the plaintiff was not in possession
of the suit property. As such, there was no cause for filing the suit for
permanent injunction. Learned Single Judge after considering the matter found
that these averments did not constitute the basis on the part of the plaintiff
that he was not in possession of the suit property. On the contrary, learned
Single Judge found in reply to paragraph 13 of the plaint, the defendants in
their written statement admitted that the work was stopped by the defendant
No.1 for some time but they restarted the work again.
according to learned Single Judge was a proof of the fact that the Defendant
Nos.1 & 2 and Defendant No.3 were not sure about the possession and right
of the defendant Nos.1 & 2 over the property. In fact, what it transpires
from all these facts that the trial court reached the same conclusion as the
learned Single Judge in second appeal in High Court. It is true normally in the
second appeal the High Court should not interfere on the questions of fact. But
if on the scrutiny of the evidence it is found that the finding recorded by
first appellate court is totally perverse then certainly the High Court can
interfere in the matter as it constitutes the question of law. In the given
facts it is more than apparent that the plaintiffs who are claiming the right
over the property by way of prescription but that has been denied by the
plaintiffs that they were the owners of the property and it was being looked
after by Aguair and in absence of Aguair the defendants registered the deed of
justification and on that basis they claimed the right over the property. But
when the original owner protested to the so called deed of justification, then
the construction work was also stopped for some time. This goes to show that
the defendants were not sure of their possession as well as their title over
the suit property by way of adverse possession. In these circumstances, the
trial court granted injunction but the first appellate court wrongly reversed
it without adverting to the finding of the trial court. The said finding of the
first appellate court was set aside by the High Court in second appeal.
Therefore, in these facts and circumstances of the case, we are of opinion that
the view taken by the learned Single Judge of the High Court in second appeal
appears to be just and proper and there is no ground to interfere with the
the appeal is dismissed with no order as to costs.
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