BHAVESH HARISCHANDRA SHIRODKAR Vs. BABULI MAHADEV CHODANKAR

JUDGEMENT

(1.) THIS is a Second Appeal by the original Plaintiff in Regular Civil Suit no.308/88/C which was dismissed by the Trial Court on 31/7/2000. The Appeal being Regular Civil Appeal No.143/2000 against the Judgment and Decree of the Trial Court has also been dismissed by the First Appellate Court by Judgment dated 24/1/2002. The suit filed by the Appellants in the Court of Civil Judge, Junior Division, Panaji was for a permanent injunction for restraining the respondents (original defendants), their servants, agents, labourers or any person/s claiming through them from interfering with the appellant's possession and enjoyment of the suit property surveyed under nos.191/1 and 191/2, which are part of the property known as " Morod Xeth" belonging to Monica Joy Gonsalves and situate at Chorao in Kerem. It is stated in the plaint that this property is subdivided into various portions, out of which four portions bearing survey nos.191/1, 191/2, 191/7, 191/8 were given on tenancy by Josinho Gonsalves the late father -in -law of Monica Gonslaves to the appellant's father Harischandra Shirodkar more than 40 years ago. Prior to institution of the suit the appellant's father expired in July 1987 after which the appellant/plaintiff inherited the estate of his father. It is the case of the appellant that his father was a tenant and deemed owner of these portions. It is stated that in the portion surveyed under no.191/2 no cultivation was done, but cereals like moog, nachinim are sometimes grown, whereas in the other plots paddy is grown. The name of the appellant's father was recorded as a tenant in respect of all the aforesaid survey numbers except survey no.191/2. According to the appellant/plaintiff the respondents/defendants have no right in survey holding no.191/1 and 191/2. The original defendant/respondent no.1 made an application to the Mamlatdar of Record of Rights claiming to be a co -tenant of the paddy field "Morod", surveyed under no.191/1 and in joint possession of the same. In the application dated 19/2/1981 Babuli Mahadev Chodankar requested that his name be inserted as one of the tenants in the above survey number in the Record of Rights. The said request of defendant no.1 for inclusion of his name as co -tenant in survey no.191/1 formed subject matter of Dispute Case no.472 of Chorao village. The plaintiff's father made an application on 16/2/1981 for including his name as tenant in survey number 191/2 and this request was subject matter of Dispute Case no.445 of Chorao village. Subsequently, the defendant no.1 also made another application on 30/5/1981 claiming to be joint tenant along with plaintiff's father in respect of survey number 191/2. The said application formed subject matter of Dispute Case no.613 of Chorao village.

(2.) THE Awal Karkun Record of Rights conducted a joint inquiry and by the order dated 18/1/1985 he directed that the name of defendant no.1 be included as tenant in respect of survey no.191/1 and 191/2. The name of the Plaintiff's father was ordered to be included in the tenant column in respect of survey no. 191/2.. The said order was challenged by the plaintiffs father by filing an Appeal before the Deputy Collector Goa, North Division being R.T.S. Appeal No.30/85 to the extent it directed inclusion of the name of defendant no.1 as co -tenant in respect of survey no.191/1 and survey no.191/2. The Deputy Collector was pleased to allow this appeal on 10/2/1987 and the order of the Awal Karkun was set aside. The case was remanded for fresh inquiry to the Mamlatdar, Record of Rights. Despite this order no corrections were made in the entries in the Index of Land. Therefore, there is a patent mistake according to the plaintiff and what the plaintiff alleges is that the defendants have no right, title or any connection of whatsoever nature with the suit property. It is stated that the possession and enjoyment of the plaintiff's father and even of the plaintiff in respect of these two survey numbers was interrupted when the defendants came on the property namely paddy field on 18/12/1988 and threatened to uproot the plants. It is stated that the defendants were trying to take advantage of the obvious mistake of Record of Rights. Taking advantage of such entry the plaintiff apprehended that the defendants were forcibly dispossessing him. It is in such circumstances that the permanent injunction was sought to restrain the defendants, their agents, servants or any body claiming through or under them from interfering with the plaintiff's possession and enjoyment in respect of survey nos.191/1 and 191/2 of Chorao village.

(3.) THIS Written statement was filed on 11.1.1989.