VINCENTINHO GOMES Vs. SHREE MAHADEO DEVALAYA OF KAKODA

JUDGEMENT

(1.) The Second Appeal has been filed challenging the Judgment and Decree dated 05.02.2000, passed in Regular Civil Appeal No. 20/87 by the learned Addl. District Judge, Margao, dismissing the appeal challenging the Judgment and Decree dated 17.03.1987 by the Court of learned Civil Judge, Senior Division at Quepem. The Respondents who were the plaintiffs filed the suit claiming that they are the owners of a vast property known as "Bogor" consisting of different pieces of land having different names which have been bifurcated into two parts by the Quepem-Curchorem public road. It is further their contention that said part of the property which is located on the eastern side is not the subject matter of the suit while the other portion which is located towards the western side of the said road is the suit property which is known as "Colarjachem Bandul", bounded towards the east by public road, towards the west by the property "Tariyaguddi" belonging to late Vicente Joao Figueiredo, towards the south the boundary line of Village Xeldem and towards the north the boundary line of the property belonging to Bhangui and Vicente Joao Figueiredo. It is further their contention that the property consists of paddy field and open plot "Mordy" and is enrolled in the Land Revenue Office under matriz nos. 10, 11, 12 and 14 and that the portion of the property surveyed under nos. 11 and 12 is the suit portion lying towards the western side of the said road. It is further their contention that in the year 1913, one Shri Jose Caotano Gonsalves, secured an aforamento of the portion of the vacant land admeasuring an area of 21450 square metres of the land belonging to the Respondents for cultivation. The said portion consisted of three different plots of different sides, one lying towards the east of Quepem-Curchorem Road and the remaining two on the west thereof. It is further their case that they are in physical possession of the entire property "Bogor" excluding the said three plots which were allotted to said Gonsalves. The Respondents contend that the Appellants, who are the original defendants, somewhere in March 1969, started illegal construction of a structure in the vacant land of the Respondents which was in their possession. It is further their case that the Appellants also started digging a well near the said construction and, consequently, called upon the Appellants to demolish the said structure which they failed to do and that the original defendant nos. 3 and 4 who are the Appellants nos. 3 and 4 herein, sold some of the land to the original Appellant no.1 to defraud the rights of the Respondents over the suit property. As such, the suit was filed by the Respondents for a declaration, permanent injunction and other reliefs as stated in the plaint.

(2.) The Appellants filed their written statements contending that the original Appellant nos. 1 and 2 purchased the property known as "Baltabogavoril", situated at Cacora, from the original Appellant nos. 3 and 4 by Sale Deed dated 23.12.1968 and that they are constructing their house in their own property which was purchased by them. It is further their contention that the said property was acquired by the Appellant nos. 3 and 4 in view of the Gift dated 22.07.1943, which property was purchased by the donor from the erstwhile owner Shri Pascoal Lourenco Gonsalves and Laurina Almeida by Deed dated 30.07.1929. It is further their contention that the property is described in the Land Registration Officer under no. 19538, 19539 and 19540 since the year 1936 and, as such, as the period was more than 30 years since the registration itself establishes their claim to the suit property as the claim of the Respondent was time barred. It is further their contention that the house under construction is in the property registered under no. 19539 which is 4/6 of Segunda Adicao of the property registered under no. 18,119 (Baltabogavoril). As such, it is their contention that the Respondents were not entitled for any reliefs in the suit.

(3.) After framing the issues and recording of evidence, the learned Civil Judge, Senior Division, at Quepem, dismissed the suit by Judgment and Decree dated 10.12.1973. An Appeal was preferred by the Respondent being Civil Appeal no. 22/1974 before the learned District Judge and by Judgment and Decree dated 30.04.1977, the Appeal was allowed and the matter was remanded for appointment of a Commissioner to locate and identify the suit property and the suit construction. Accordingly, a Commissioner from the Survey Department, was appointed who filed his report and the Appellants were given an opportunity to cross examine the Commissioner.