VITHALDAS RAMA LOTLIKAR Vs. JOSE MENINO GODINHO

JUDGEMENT

(1.) THIS is an appeal directed against the order of the learned Civil Judge, S. D. , Margao, dated 25th June, 1991 in Civil Misc. Applications No. 381/88/b, 398/88/b,399/88 and 65/90/b, attached to Special Civil Suit No. 205/88/b and Civil Misc. Application No. 4690/b attached to Special Civil Suit No. 32/90/b whereby he dismissed, among others, the appellants Application No. 381/88/ seeking to restrain the respondents from interfering in the suit property "dubaxalem" situated at Calata.

(2.) THE appellant had filed a suit against the respondents alleging that he is the owner in possession of the suit property consequent upon its purchase by deed of Sale dated 8. 4. 1988. The property was belonging originally to the late Manual Agostinho Godinho and after his death it devolved on his four children, namely Rumaldino, Belezinha, Clementina and Jose Gulalberto. It is an admitted position that, on the death of his two sisters and brother Jose Gulalberto, Rumaldino became the exclusive owner of the property. The said Rumaldino and his wife Elvira had executed on 15. 10. 81 a general Power of attorney in respect of their properties in favour of one Gonsalo Luis. Prior to that all the properties were being administered by Gonsalos late brother Jose Roque and from 1981 the same were being managed by Gonsalo. The Deed of sale was thus executed by the said Gonsalo as Power of Attorney holder for Rumaldino and Elvira and prior to this an Agreement of sale, dated 16. 4. 84, had been entered into with the appellant by Gonsalo on behalf of the prospective sellers. By virtue of this agreement the property was to be sold to the appellant for Rs. 2 lakhs and an advance of Rs. 40,000/- was paid by him on the occasion. The property was sold in 1988 with the exclusion of an area admeasuring 650 sq. meters which the sellers had already disposed of before, also through Gonsalo, to one Antonio Mariano Fernandes and his wife Janette. The said Gonsalo sold many other properties of Rumaldino and his wife including the one situated at Betalbatim surveyed under No. 31/11 (which was the subject matter of Suit No. 32/90/b) and which is located about 200 meters away from the suit property purchased by him. The said property was sub-divided by Gonsalo into 10 plots and sold to various persons. Similarly Gonsalo sold another property, surveyed under No. 68/5; situated at Guiriem of Majorda Antonio Nazareth.

(3.) ON 4. 5. 1987 Gonsalo Luis gave possession of the suit property to the appellant and executed a Power of Attorney in his favour. Since then the respondents No. 2 to 5 who were living in the property as mundcars started disturbing the Appellants possession but inspite of their efforts the appellant has been able to do all the pluckings. For this reason a complaint was lodged by the appellant before the Police and a legal notice was also sent to them. In reply the respondents No. 2. to 5, although acknowledging that they were mundcars of the property, some of them however claimed that they were in the enjoyment of the said property as "tolls" caretakers, expressing at the same time their willingness to purchase their respective plots. One of the respondents, being respondent No. 3, even filed a case against Gonsalo before the Mamlatdar of Salcette to declare him as mundcar and as such he was so declared.