DAMEANA RODRIGUES Vs. PEDRO DOMINGOS MIRANDA

JUDGEMENT

(1.) THIS appeal arises from the dismissal of Special Civil Suit No.7 of 1979 by the leaned Civil Judge, Senior Division at Bicholim, vide Judgment and Order dated 31st October, 1995. The said suit was instituted by the present appellants for declaration and partition.

(2.) IT was the case of the plaintiffs that they are descendants of one Jeronimo Miranda, whereas defendant nos.1 to 6 are the descendants of late Pedro Miranda and defendant Nos.7 to 9 are the descendants of late Constancio Miranda. These three persons, namely Constancio Miranda, Jeronimo Miranda and Pedro Miranda, had taken "aforamento" from the Comunidade of Dhumashem jointly on "fora" in the year 1897 and the "fora" was paid every year in the name of these three individuals. The "aforamento" was known as "Aimpa Xetatil Mali" or "Aimp Mali" situated at Dhumashem of Bicholim Taluka. The property was given two survey nos.i.e. 43 and 46. The first property was sub-divided in 8 parts, whereas the second property was divided into 9 sub-divisions. They had claimed that they had 1/3rd share in the entire suit property and they were therefore entitled for partition to that extent, alongwith the fruit trees standing on the respective shares.

(3.) ON behalf of the plaintiffs, P.W.1, Simao Miranda, P.W.2, Laxman Sawant, P.W.3, Sitaram Naik and P.W.4, Nakul Porob, were examined, whereas the defendants had examined D.W.1, Inacio Miranda, D.W.2, Mahadev Parab, and D.W.3, Angela Lobo. The case of the plaintiffs was based on the documentary evidence at Exh.P.W.1/A, Exh. P.W.l/B colly. and P.W.1/C colly. At Exh.P.W.1/E, a copy of the plan was placed on record in addition to the order dated 6th June, 1972, passed by the Awal Karkun, Bardez, and marked as Exh. P.W.1/F. The death certificate of Jeronimo Miranda, birth certificate Simao Miranda (2) and death certificate of Simao Miranda (1) as well as the birth certificate of Jose Luis de Miranda, were placed on record. The defendants on the other hand, had placed on record Form I and Form XIV as well as the certificate at Exh. D.W.1/A. The document in Form I and Form XIV are part of the revenue record and the plaintiffs have duly proved that the property in Survey nos.43/7, 43/9, 43/11 and 46/9 were jointly held by them with some of the defendants, though not all of them. On the other hand, the defendants' case that the plaintiffs did not have any share in the other sub-divisions of survey nos.43 and 46 has been accepted by the trial Court. This is more so because of the order at Exh.P.W.1/F. This was an application made by some of the defendants to the Talathi of Dumashem for a declaration that they had 2/3rd ownership right in the entire property by inheritance and that the plaintiffs had only 1/3rd right in the said property and on this basis, request was made to delete the names of the plaintiffs from survey nos.43/7, 43/11 and 46/9, alleging that they were wrongly entered as co-occupants. This application came to be rejected by Order dated 6th June, 1972 and it received finality.