CONSTANCIO LUIS CAETANO RUBINA LOBO Vs. LEANDRINA ANTAO

JUDGEMENT

(1.) The Appeal revolves around the property admeasuring 503 sq.m known as 'Mixto Sonarxeilem, 2nd Adicao or Mixto Sonarxetilem, situated at village Camurlim of Salcete Taluka and as averred in the plaint, is enrolled in the Revenue office at Margao under Matriz No.167 with an existing house registered in Taluka office under Urban No.85. The said property is surveyed under Survey No.109/7. The discord revolving around the property arises out of the description of the said property given in the plaint by the plaintiff and the defence set up by the defendant in their written statement to the effect is that there exist no such property as described in the plaint and the survey holding no.109/07 of Village Camurlim forms part and parcel of the opponents bigger property described in land registration office of Salcete under No. 45018 and Matriz No. 166. The parties are in controversy about the ownership and possession of the said property.

(2.) The Appellant in this appeal is the plaintiff who instituted a Suit for declaration, possession and perpetual injunction vide Regular Civil Suit No. 294 of 1987 and since deceased, his legal heirs are on record. The respondents are the original defendants and on demise of the defendant nos.1, 2 and 3, their legal heirs are on record and are contesting the Appeal.

(3.) The pleadings in the plaint and the relief sought is denied by the defendants by filing a written statement. The defendants specifically denied the existence of the property described in the plaint and stated that the survey holding no.109/7 of village Camurlim form part and parcel of the defendants bigger property described in the land registration office of salcete under no.45018 and matriz under 166 with the following boundaries "on the east by the street or municipal road; on the west by public road, on the north by first addition of the property Laquia Naicalem Patoly, of Augusto F. Boaventura Andrade, and on the south by the property Mixto Sonarxetilem bata of Jeremias A.de Carvalho and property of Patricio Caetano Dias, Pedrinho Dias and others." The defendants raised a plea of res-judicata by referring to the earlier proceedings of injunction filed by the plaintiff in the year 1966. Further the defendants pleaded that they are in enjoyment of the portion under Survey No.109/7 as owners since its acquisition. By amending the written statement, pursuant to order dated 31/08/1994 defendants without prejudice, claim to be in exclusive possession of part surveyed under Survey No.109/7 since the date of sale dated 28/09/1965 against owner or against any claimants thereof.