SUBRAYA NARAYAN NAIK Vs. JOAQUIM VAZ

JUDGEMENT

(1.) This second appeal is directed against the judgment of the learned District Judge, South Goa, Margao, dated 28th June, 1989 in Regular Civil Appeal No. 1 of 1989 which has affirmed the earlier judgment and decree of the learned Civil Judge, Senior Division, Vasco-da-Gama dated 4th Oct., 1988 allowing the respondent's suit in Regular Civil Suit No. 71 of 1977.

(2.) The said suit was filed by the respondent for declaration and permanent injunction and the prayer was that he should be declared as owner of the property entitled to be in possession of the same and the appellant be restrained from in any manner interfering in the cultivation of the said property in the portion indicated by letter 'C' of the plan, situated on the northern side of the bund running in cast-west direction and meeting at a well existing in the suit property on the eastern side.

(3.) The case of the respondent was that he was the owner of the property known as "Sindolem" or "Palmar" also known as "Munelishir" situated at Sancoale which was purchased by him on 28-11-1970. The property has been divided and demarcated into two plots being one big and the other small. The small plot is situated on the western side wherein the appellant has his dwelling house and it admeasures an area of 870-75 square metres. The same was reserved by the previous owners to be sold to the appellant. The big plot is the remaining part of the entire property which was acquired by the respondent from his predecessors. The appellant was cultivating paddy in an area of approximately 1508 square metres of the suit property and there is a bund in cast-west direction meeting the well existing in the property on the eastern side. The bund separates the land of the respondent which is under agricultural tenancy with the appellant from-the remaining portion of the land. The appellant sometime prior to the filing of the suit instituted criminal proceedings against the respondent in the Court of Executive Magistrate, Vasco-da-Gama which are bearing No. MAG/4/71. By order dated 11-10-1971 the Magistrate held that the respondent had been forcibly and wrongly dispossessed by the appellant of the strip of land of "Munelishir" situated on the northern side of the bund shown with letter 'C' in the attached plan. Thereafter the appellant filed a tenancy case No. 47/71 in the Court of Mamlatdar of Mormugao for declaration as a tenant of the entire property. By order dated 12-11-1973 the Mamlatdar held the appellant as tenant of the paddy field of "Munelishir' excluding the land which was already given in the respondent's possession, namely, the strip of the land situated on the northern side of the bund. However, the appellant taking advantage of the respondent's absence from the village trespassed into the strip of land in his ownership and possession on the northern side of the said bund and cultivated paddy therein without respondent's permission. The respondent came to know about this fact only sometime in the month of Aug., 1977 and then the suit was filed.