BIBIANA FERNANDES Vs. LINO SANTANA FERNANDES

JUDGEMENT

(1.) THE above Second Appeal challenges the judgments passed by the Courts below whereby the suit filed by the Pascoal Fernandes who has now expired, to partition the suit property and mandatory injunction came to be dismissed. The suit came to be filed by the said Pascoal Fernandes/original plaintiff on the ground that there exists a property in the village of Calangute at ward Umtavaddo, which is known as 'Sapecarachem' surveyed in the records of right under No. 176/19. It is further his case that this property is surveyed under old cadastral survey No. 4172 and that there exists a house therein bearing house No. 5/132 belonging to the said Pascoal, defendant No. 1/respondent No. 1 herein and his brother respondent No. 3 herein. It is further his case that the house has been constructed by the parents of the said brothers and the said house is undivided and consequently the said Pascoal claims that he is entitled to 1/3rd undivided share in the said house. As such, the suit came to be filed for the aforesaid reliefs.

(2.) THE respondent No. 1 disputed the claim put forward by the said Pascoal and pointed out that he has no right to the suit property. It is further his case that pursuant to the sale deed executed in the year 1974, the said respondents have purchased an area of 204 square metres from the original owners and subsequently in the year 1980 the portion of the house which falls in the said area came to be demolished and reconstructed by the respondent No. 2.

(3.) THE learned Judge after framing the issues and recording of the evidence has come to the conclusion that the appellant has failed to establish that he has undivided share in the suit property and further on the basis of the sale deed, the learned Judge came to the conclusion that the portion of the house occupied by them belong exclusively to the respondent nos. 1 and 3. Consequently, the suit filed by the said Pascoal came to be dismissed.