CAETANO GOMES Vs. ANA FERNANDES

JUDGEMENT

(1.) HEARD Mr. C. A. Coutinho, learned counsel appearing for the appellants and Mr. Sudesh Usgaonkar, learned counsel appearing for the respondent.

(2.) THE above appeal came to be admitted by order dated 19.10.2005 on the following substantial question of law : "Whether a suit for injunction simplicitor based upon title could be decreed, despite a clear holding that the plaintiff has failed to prove title to the property, only on the basis of an entry in survey records -

(3.) MR . C. A. Coutinho, learned counsel appearing for the appellants in support of the above substantial question of law has pointed out that the property which is under dispute is surveyed under no.98/11 of Davorlim Village which though stands in the name of the respondent in the occupants column nevertheless, the learned trial Judge while disposing of the suit filed by the respondent has come to the conclusion that the appellants were in possession of the suit property. The learned counsel further pointed out that both the Courts below have come to the conclusion that the appellants and the respondent have failed to establish their title. The learned counsel as such points out that in such circumstances, the only point which would be relevant is to find out as to who is entitled for possession of the suit property. The learned counsel further submits that the appellants and the respondent have their houses in the disputed property besides there exists other four structures which are being occupied by the other persons. The learned counsel further submits that the learned Lower Appellate Court while examining the presumption under Section 105 of the Land Revenue Code has erroneously come to the conclusion that such presumption can be rebutted only by documentary evidence. The learned counsel further pointed out that the appellants have produced oral evidence on record to show that they are in possession of the disputed property and as such, the findings of the learned Lower Appellate Court that the presumption can be rebutted only by documentary evidence is misconceived. The learned counsel has thereafter taken me through the judgment of the learned Lower Appellate Court and pointed out that the learned Judge has erroneously come to the conclusion that the appellants are not entitled to extend the structure of the house existing in the suit property on the premise that the respondent is in possession thereof. The learned counsel further pointed out that the appellants are in lawful possession of the property and the findings of the learned Lower Appellate Court that the respondent is in lawful possession of the disputed property is misplaced. The learned counsel as such submits that the question of granting any relief in favour of the respondent in such circumstances is totally uncalled for.