FRANCISCO JOAO GIL BARRETO Vs. FILIPE GAMA

JUDGEMENT

(1.) THE appellant (plaintiff in the suit) had filed a suit for permanent injunction in order to restrain the respondent (defendant in the suit) from plucking coconuts and tapping toddy from the coconut trees in the suit properties and from entering in the suit properties. THE appellant also sought damages to the tune of Rs. 26,000/ -. An application for temporary injunction was filed in the said suit which was dismissed with reference to Chalta Nos. 6 to 9 of P. T. Sheet No.143 and Chalta No.34 of P. T. Sheet No.125. In respect of Chalta No.20 of P. T. Sheet No.145, the lower Court came to the conclusion that the plaintiff was in possession of the same. THE appellant challenges the said order dated 30th August,1993.

(2.) PLAINTIFF's case, in brief, is that the said suit properties, chalta numbers of which have been enumerated above situated at Vaddem belonged originally to Fr. Jose Gabriel Barreto who by will dated 9th November,1965 bequeathed the same to the appellant. The coconut trees in the said properties were allowed to be plucked by Alzira Barreto Mascarenhas by the appellant on moral grounds and she had engaged the respondent as caretaker who used to sell the coconuts for the said Alzira Mascarenhas and keep some commission for himself. The appellant, was previously residing at Portugal, came to goa in 1991 and authorised his brother Advocate J. A. Barreto and his sister-in-law to do the plucking. The respondent was paid Rs. 5400/- for his services as caretaker and his services were terminated. The case of the appellant further is that his Attorney plucked the coconut trees in January, 1993 and April,1993, but in the later plucking respondent interfered and took away 100 coconuts after which a criminal complaint was lodged with the Police and a private criminal complaint was filed before the J. M. F. C. , Vasco-da-Gama. The suit came to be filed in the above mentioned circumstance.

(3.) IN respect of Chalta No.20 of P. T. Sheet No.145 the trial Court came to the conclusion that the appellant could be presumed to be in possession of the same, yet no relief in respect of the same was granted by trial Court and the application was dismissed as a whole 5.Learned Advocate Shri Barreto submitted before me that the presumption under Section 105 of the Land Revenue Code cannot be said to be rebutted by the documentary evidence produced by the respondent and in this connection he relied upon Shri Winston Pereira v. Shri Rama Gadekar & 4 Ors. (1989 (2) Goa Law Times, 255) and Shri Damodara Ranum Porobo Loundo v. Shri Bhasker R. Jalmi and Ors. (1990 (2) Goa L. T. , 407 ). IN respect of documents dated 2.1. 49 and 27.1. 1971, it was submitted that the said documents are fabricated documents and that the same are not executed by the persons shown therein and even the receipts produced by the respondent are also fabricated.