GOPAL VISHNU GAUDE Vs. MANIKRAU AMRUTRAO PRABHU DESSAI

JUDGEMENT

(1.) The Appellant is the original Defendant. The Appellant has filed this Second Appeal challenging the Judgment and Order passed by the Civil Judge, Junior division, Sattari at Valpoi, Goa, in Regular Civil suit No. 63 of 1978 who was pleased to decree the suit filed by the Respondents which decree was confirmed by the Additional District Judge at Panaji by Judgment and Decree dated 17-12-1994. When the Second Appeal came up for admission on 04-07-1996, the learned Single judge of this Court was pleased to admit this second Appeal by framing two substantial questions of law, namely (1) Whether the documents relied upon by the parties have been misconstrued vis-a-vis identification of the suit property and (2) Whether the Courts did not address to the question of adverse possession with reference to the concept of possession under the Portuguese law which need not necessarily be to the knowledge of the owner

(2.) The learned Counsel appearing on behalf of the Appellant has submitted that the description of the property in question which is given in the plaint filed by the Plaintiff and the description of the property mentioned in the title of documents relied upon by the plaintiff are different. He has submitted that both the lower Courts have not discussed this issue though, it was specifically pleaded by the appellant in his written statement. He has submitted that no issue on this point was framed by the trial Court though a composite issue regarding the question of title of the plaintiff was framed. Neither the trial Court nor the lower Appellate Court have addressed themselves to this point which was specifically pleaded and argued.

(3.) The brief facts are that the Plaintiff filed a suit on 01-08-1978 being Regular Civil suit No. 63/78 for a declaration that he is entitled for the possession of the property described in para 1 of the plaint, namely property known as "doncol" situated in village Pissurlem of sattari Taluka surveyed under Old Cadastral survey No. 4 having boundaries described therein and for an order of perpetual injunction restraining the Appellant from disturbing his possession in respect of the suit property.