QUEXOVA MADEVA PRABHU Vs. SHIVANAND VASSUDEV SALGAONKAR

JUDGEMENT

(1.) BY this second appeal, the appellants take exception to the judgment and decree dated 23rd January, 2007, passed by the learned District Judge, South Goa, Margao in Regular Civil Appeal No. 51/2005, dismissing the appeal against the judgment and decree dated 21st April, 2005 passed by learned Civil Judge, Junior Division, Quepem in Regular Civil Suit No.23/2004/A, filed by respondent No.1 against the appellants and respondents No.2 to 11. The parties shall, hereinafter, be referred to as per their status before the Trial Court. The plaintiff filed the above suit against Shri Quexova Madeva Prabhu Dessai and his wife Mrs. Meera Quexova Prabhu Dessai seeking a declaration that the area shown in the plan, as encroached upon, is part and parcel of the plaintiff's property "DOVORNEACHEM MOLLA". The plaintiff also sought recovery of possession and permanent injunction. The suit was contested by the defendants. It was the case of the defendants that the encroached portion belonged to the defendants and, as such, the plaintiff had no right to the area alleged to have been encroached by the defendants.

(2.) THE Trial Court, upon appreciation of the evidence led by the parties, decreed the suit. An appeal preferred by the appellants herein has also been dismissed by the lower Appellate Court. Hence, the present appeal. Mr. Kamat, learned Counsel appearing for the appellants urged that the plaintiff had not proved his title to the suit property, and, as such, both the Courts below have erred in decreeing the suit. Learned Counsel further submitted that according to the plaintiff, the suit property, a portion of which is alleged to have been encroached by the defendants, was allotted to him by a Deed of Partition dated 23rd March, 1972, as a member of Hindu Undivided Family. The learned Counsel further submitted that initially, the suit property was owned by one Madeva Vassudeva Salgaocar and it was the case of the plaintiff that the property was allotted on account of a partition amongst the members of Hindu Undivided Family, which concept does not exist in Goa. The learned Counsel, therefore, submitted that the plaintiff has no title to the suit property "DOVORNEACHEM MOLLA" and, as such, the decree passed by the trial Court and confirmed by the lower Appellate Court, deserves to be set aside. The learned Counsel further submitted that both the Courts below have relied upon the plans which have not been proved and, as such, the decree for possession of a part of the suit property could not have been passed by the trial Court and confirmed by the lower Appellate Court in the absence of proof of the said plans in terms of Section of the Indian Evidence Act. The learned Counsel further submitted that both the Courts below have relied upon inadmissible evidence and, as such, the following substantial questions of law arise for determination in this appeal :

(3.) PER contra, Mr. Usgaonkar, learned Counsel appearing for respondent No.1 submitted that in the written statement, the defendant did not dispute the title of the plaintiff and, as such, at this stage, the appellants are not entitled to challenge the title of the plaintiff. The learned Counsel further submitted that the defendants are also not entitled to challenge the plans upon which reliance has been placed by PW.4. The learned Counsel, after placing reliance upon the judgment in the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another, : (2003) 8 SCC 752, submitted that at this stage, the objection regarding the mode of proof cannot be urged, since the documents have been taken on record, without any objection on the part of the defendants. The learned Counsel, therefore, submitted that no substantial question of law arises in this appeal and there are concurrent findings of fact recorded by both the Courts below, against the appellants and, therefore, the appeal deserves to be dismissed, summarily. Mr. Usgaonkar placed reliance upon judgments of the Apex Court in the cases of Jahuri Sah and ors. vs. Dwarika Prasad Jhunjhunwala and ors., : AIR 1967 SC 109, and Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs., : (2001) 3 SCC 179/