MARIA ROSA COSTA DIAS Vs. COMUNIDADE OF CHICOLNA

JUDGEMENT

(1.) ORIGINAL defendants Nos. 1 to 9 in Special Civil Suit No. 143/92 on the file of Civil Judge, Senior Division, Vasco-da-Gama, filed Appeal No. 75/93 (the original defendant No. 10 being their mother since died ). Defendant No. 11 in the said suit filed Appeal No. 80/93. The appellants in both the appeals are challenging the order passed by the learned Civil Judge, Senior Division, Vasco-da-Gama, in Civil Miscellaneous Application No. 254/93 dated 25-5-1993. Since these two appeals arise out of a common order, I propose to dispose of these two appeals by this common judgment.

(2.) THE Special Civil Suit No. 143/92 was filed by the Comunidade of Chicolna, through its Attorney, for the reliefs of granting the declaration of title of the suit property and recovery of possession thereof. It also contained prayers for a declaration of annulling a sale deed executed by the defendants Nos. 1 to 10 in favour of defendant No. 11 and also cancellation of the mortgage alleged to have been executed by the defendant No. 11 in favour of defendant No. 12 for a loan of Rs. 30,00,000/ -. The property in dispute is measuring about 1,23,150 square metres. It is alleged that there are properties belonging to defendants Nos. 1 to 10 lying contiguous to the suit property. Going by the allegations in the plaint and the written statement, it can be seen that the real dispute between the parties is with regard to the identification of boundaries of their properties. In the suit the respondent filed the aforesaid Civil Miscellaneous Application No. 254/92 for the following interim reliefs : i) A temporary injunction granted ex-parte restraining the defendants Nos. 11, their contractors, agents, servants or members from in any manner interfering, developing or doing anything in or respect of the suit property bearing Survey No. 7/2 of Chicolna Village, Mormugao Taluka, pending the hearing and final disposal of the suit. (ii) For an order for preservation of the suit property bearing survey No. 7/2 and 4/2 of Chicolna Village Mormugao Taluka, without altering its nature and further for appointment of a Government Head Surveyor as Commissioner authorising him to enter upon into the suit property to inspect the same, carry out survey and record his observation so as to verify whether the suit property Survey No. 7/2 and 4/2 of Chicolna Village form an integral part of plaintiffs property known as Lote No. XVII and Lote No. XVIII in terms of the old cadastral plan drawn by the Portuguese Government. The two prayers contained in the civil miscellaneous application have been granted by the Court in the order under appeal. These interim reliefs sought were granted by the Court below on the basis that it finds a prima facie case and the balance of convenience in favour of the plaintiff. Therefore, I am called upon to examine these findings of the Court below on the basis of the materials available before the Court. The Court below, of course, has gone in detail through the materials produced before it by either side. The main document relied upon by the plaintiff in order to prove a prima facie case is a plan of Tombo at Exhibit X-1 and also Exhibit P which show the position of the new survey in relation to the Tombo plan, whereas the dendants have produced the Matriz No. 77 having registration No. 2648. They have also produced an order passed by the Mamlatdar of Record of Rights dated 19-3-1976 under the provisions of the Civil Code. Both the parties contested the veracity and reliability of these documents produced by them. The plaintiff contended that the Matriz No. 77 does not tally with the suit property and therefore it cannot be relied upon. As regards the order of Mamlatdar of Record of Rights, the Court below finds that it is not binding on plaintiff as it was passed without hearing the Comunidade. The defendants, on the other hand, submit that the Tombo plan is a private plan which cannot be relied upon to prove title of the plaintiff. They cited various provisions of the Code of Comunidades. The witnesses were also examined and a surveyor was appointed and he has prepared the plan. Regarding the reliability on the certificate issued by the Mamlatdar of Record of Rights, the Court below observed thus :-

(3.) I do not think that the observation by the Court below regarding the reliability of the documents produced by the defendants is proper and legal. The learned Civil Judge, Senior Division was discussing about the presumption available under section 114 (c) of the Evidence Act to the Tombo plan. I find no reason why the said presumption equally available to an order passed by the Mamlatdar under a statutory provision unless and until it is strongly rebutted by other cogent evidence. At this stage, however, it is not proper on the part of the Court below to discard an order passed by a statutory authority against another document which was prepared by the plaintiff for the purpose of finding out a prima facie case in favour of the plaintiff. This action of the Court below cannot be appreciated as it fails to approach in correct perspective. The only attack against that order issued by the Mamlatdar is that it was passed by him behind the back of Comunidade as the notice of enquiry was served not on the plaintiff. It is admitted that the notice was served on a person named Gregorio Goes on 9-12-1975. One cannot jump up to the conclusion about the competency and authority of the said Gregorio on 9-12-1975 to receive notice from the Revenue Authorities on behalf of the Comunidade without enquiring into under what circumstances, the Revenue Authorities served notice on him in compliance with the provisions of the Revenue Code. It is interesting to note that said notice was produced by the plaintiff. This fact will go a long way to infer that the notice was received in plaintiffs office and it was in its possession. The fact that the plaintiff was aware of the proceedings of the Mamlatdar, therefore, cannot be disputed. What is the authority of the person who received the notice and how he happened to receive that notice and when the notice came into the possession of the plaintiff are matters to be gone into. All these matters can be considered only during the stage of trial. Therefore, a public document unless it is finally disproved by set of cogent and strong evidence, cannot be rejected at the threshold, particularly when those documents are pressed into service for finding out a prima facie case.