SHAIKH MOHAMMAD SHARIF Vs. SHAIKH MOHAMMAD ALI

JUDGEMENT

(1.) This second appeal questions the dismissal of the counterclaim in RCS No.49/1998/C and its endorsement in RCA No.6/2004 by the Trial Court- CJJD at Bicholim and the First Appellate Court Additional District Judge, Mapusa respectively.

(2.) The respondents /plaintiffs prayed for declaration that they are the absolute owners of the suit property including the house bearing No.23 in occupation of the appellants / defendants being the part of the property popularly known as Gharbhatule surveyed under Survey No.40/15 of Bicholim, Muslimwada, Goa and for consequential deletion of entries of the names of the defendants in occupant's column of the suit property, and for the order directing the defendants to vacate the said house and deliver its vacant possession and further for permanent injunction restraining them from interfering in any manner in the suit property.

(3.) According to the plaintiffs (the respondents herein), the father of the plaintiff No.1 Shaikh Mohammad Ali had purchased 1/7th part of the said property popularly known as Gharbhatule in public auction held on 10th November, 1915 and the other 1/7th part of the said property adjoining thereof along with the said house was originally belonging to the father of the plaintiff No.1 thereby giving rise to the suit property being 2/7th part of the big property Gharbhatule; and the defendants' mother being close relative of the plaintiff No.1 was allowed to stay in the said house property as a caretaker and after some years the defendant No.1 Shaikh Mohammad Sharif (the appellant No.1 herein) had started residing in the suit house with his mother. It was also the case of the plaintiffs that in the month of April 1993, the defendant No.1 Mohammad Sharif had deceptively obtained a 'No objection' from the plaintiff No.1 upon a misrepresentation that such 'no objection' was required for undertaking minor repairs to the said house and for water connection; and as such the said 'no objection' is void-abinitio. In the written statement resisting the plaintiffs' case, the defendants (the appellants herein) besides denial specifically contended that the suit house was constructed by the mother of the defendant No.1 in 1953 with the money given to her by the defendant No.1 at the same place where one storeyed family house of the defendants was standing; and the defendants are in possession and enjoyment of the suit house and all the open area in front of it upto the public road since 1953 peacefully, openly, continuously and without obstruction from any person whatsoever as owners thereof.