SHRI ANTONIO DSOUZA,SON OF FRANCISCO DSOUZA,OF MAJOR AGE, RESIDING AT VALPOI, SATTARI - GOA Vs. SHRI ARMINDO AUGUSTO ANDRADE, OF MAJOR AGE, RESIDING AT VALPOI, SATTARI - GOA

JUDGEMENT

(1.) HEARD Shri Pangam, learned Counsel appearing for the Appellant and Shri Ramani, learned Counsel appearing for the Respondent. The above Second Appeal has been admitted by this Court by Order dated 11.03.2004, on the following substantial questions of law:

(2.) SHRI Pangam, learned Counsel, appearing for the Appellant, has assailed the impugned Judgment passed by the Lower Appellate Court essentially on the ground that the Appellant was duly constituted Attorney of Smt. Fatima Bi and that a suit against the Appellant could not have been filed when said Fatima Bi was not a party to such proceedings. Shri Pangam, learned Counsel, has further taken me through the evidence of Pw.1 and pointed out that Pw.1, himself, has admitted that prior to the filing of the suit, a complaint was lodged by Pw.1 to the Municipal. Learned Counsel further pointed out that pursuant to a Power of Attorney executed by the said Fatima Bi and thereafter the Appellant was entrusted with the maintenance of the suit property and, according to him, all the activity carried out by the Appellant was on behalf of the said Fatima. The learned Counsel further pointed out that the Respondent has also failed to identify the suit plot and, as such, the question of granting any permanent injunction as against the Appellant without such identification cannot be accepted. Learned Counsel further pointed out the findings of the learned Trial Judge whilst disposing the suit filed by the Respondent wherein the learned Judge has come to the conclusion that the Respondent has failed to identify the property granted to the ancestors of the Respondent by the Alvara executed by the then Government and that the area which is alleged to have been resumed in favour of the ancestor of the Respondent, has not been properly identified. Learned Counsel has taken me through the plan on record and pointed out that the plan itself discloses that the suit property claimed by the Respondent does not correspond to the area allegedly resumed in favour of the ancestors of the Respondent. Learned Counsel further pointed out that considering the fact that the Respondent has admitted that the encroachment was carried out by the said Fatima Bi, by obtaining a relief against the Appellant, it would in other words effect the rights of the said Fatima Bi over the suit plot. Learned Counsel further pointed out that the said Fatima Bi is in possession of the suit plot and, as such, the question of granting any permanent injunction in favour of the Respondent does not arise at all.

(3.) ON the other hand, Shri Ramani, learned Counsel appearing for the Respondent, has supported the impugned Judgment. The learned Counsel dealing with the contention of Shri Pangam, learned Counsel appearing for the Appellants, that the Lower Appellate Court had not permitted the Appellant to assail the findings against them arrived by the learned Trial Judge, has pointed out that on perusal of the impugned Judgment passed by the Lower Appellate Court, one cannot find any such submission advanced before the Lower Appellate Court. Learned Counsel further pointed out that having failed to advance any such submission, it is not open to the Appellant to raise such grievance before this Court. Learned Counsel has taken me through the findings of the learned Trial Judge on issue no. 5 and pointed out that the learned Trial Judge while appreciating the evidence on record has come to the conclusion that the alleged principal of the Appellant is one Fatima Bi Shaikh Yacub whereas the person in whose name the property is surveyed under no. 64/2 is one Fatima Bi Ahmed Khan whereas the name figuring in the Survey Plan in the other rights column is one Fatima Bi and that the learned Trial Judge has come to the conclusion that the Power of Attorney claimed to have been executed in favour of the Appellant is a fake Power of Attorney. Learned Counsel further pointed out that whilst deciding issue nos. 4 and 5, the learned Trial Judge has come to the conclusion that there is no evidence to establish that the said Fatima Bi had any right to the suit plot. Learned Counsel pointed out that relief which has been granted is only for permanent injunction and, considering that the Appellant has not disputed that he had carried out such activity in the suit property though claiming that they were on behalf of one Fatima Bi by itself does not disentitle the Respondent to seek a permanent injunction against the Appellant. Learned Counsel further pointed out that the Respondent has established by evidence on record that an area of 16600 square metres was resumed in favour of the ancestors of the Respondent and that the suit plot forms part and parcel of the said area. Learned Counsel pointed out that the learned Judge has erroneously come to the conclusion that the property has not been identified when, on the basis of the expert Surveyor examined by the Respondent, being Pw.4, the suit plot has been correctly identified. Learned Counsel further pointed out that the boundaries as shown in the plan by Pw.4, which is at exhibit Pw.4/H collectively, clearly depicted the suit plot and the boundaries shown therein correspond to the boundaries as disclosed in the plaint of the Respondent. Learned Counsel points out that the Appellant has failed to establish any right to the suit plot and, as such, there is no reason for any interference in the Judgment passed by the Lower Appellate Court. Learned Counsel as such submits that both the substantial questions of law framed by this Court are to be answered in the favour of the Respondent and the Appeal preferred by the Appellant be dismissed.