HERALD DLIMA AND ORS. Vs. WALTER DSOUZA

JUDGEMENT

(1.) THE case of the plaintiff is that her husband acquired the plaint 'A' schedule property in the registered partition deed dated 31.03.1953, entered into between himself and his brother Marcel D'Lima, who has been in exclusive possession and enjoyment of the land described as 'C' schedule property. After the death of Francis D'Lima, the plaintiff and her children succeeded to the plaint 'A' schedule and they are in possession and enjoyment of the same. The property described as 'D' schedule property was allotted to the brother of the husband of the plaintiff namely, Marcell D'Lima and he was in possession and enjoyment of the same. It abuts 'A' schedule property.

(2.) IN 1983, Marcell D'Lima, the brother of the husband of the plaintiff sold the above property in favour of the defendant. The property purchased by the defendant is subject to all the reservations and condition as set -out in the partition deed. That there is a common Well in the property allotted to Marcell D'Lima and the right to draw water from the said Well is reserved to all the sharers. The plaintiff has been drawing water from the said Well for domestic and other purposes. There is a passage to reach the said Well. The roofs of the buildings belonging to the plaintiff and Marcell D'Lima were extending to one another's property and due provisions were made to enjoy the building without making any alteration.

(3.) ON service of summons, the defendant entered appearance and denied the suit averments. That the defendant has never obstructed to the usage of the Well or plucking of the coconuts, so far as those mentioned in the partition deed is concerned. That there is no dispute with regard to the ownership of the plaintiff's property. That the defendant has never attempted to interfere with the plaintiff's possession. Hence, he sought for dismissal of the suit.