ANTONIO FILIPE VAZ Vs. COMUNIDADE OF MARGAO

JUDGEMENT

(1.) THIS appeal arises out of the judgment and Decree dated 26th May, 1993 passed in Regular Civil Appeal No. 1 of 1992 by the District Judge, South Goa at Margao. The learned Judge dismissed the said appeal and confirmed the judgment and decree passed by the Additional Civil Judge, Senior Division, Margao in Regular Civil Suit No. 15247 of 1956/b. The learned Civil Judge had decreed the suit for demarcation of the suit property.

(2.) THE appellants herein are original defendants Nos. 1 to 4. The original plaintiff Aleixo Caetano Cardozo of whom present respondents Nos. 2 (a) to 2 (f) are the legal heirs, had filed the said suit against the appellants and others for demarcation of the property known as "cupangali" situated at Cupangali Ward, Margao which was initially described in the Land Registration Office of Salcete under No. 33332 and later on registered in the name of the deceased plaintiff under No. 45004. In the plaint, the plaintiff described the boundaries of the suit property as being on the east by the land granted on perpetual lease to defendant No. 3, on the west the properties of defendants Nos. 1 and 2, on the north the property of the heirs of one Antonio D Silva (that is, defendants Nos. 7, 8 and 10) and on the South a public road. The plaintiff further averred that on the western boundary of the suit property there was no boundary stone or mark. Similarly the other three boundaries do not bear any mark except one or two stones. Hence, according to him, this property was mixed up with the adjoining property. The plaintiff, therefore, prayed for demarcation of the suit property by fixing boundary stones.

(3.) THE defendants resisted the suit and denied the plaintiffs title and possession of the suit property. They contended that the property sought to be demarcated by the plaintiff is contiguous to the leasehold property which was granted to Lourenco Vaz by the Comunidade. The said Lourenco was the grandfather of the appellants-defendants. The defendants further averred that in 1902 the said Lourenco applied for a grant of lease of 30000 sq. metres adjoining the property "cupangali" already held by him as "aforamento". However, the Comunidade did not grant the application to Lourenco Vaz. But, in the course of time, Lourenco committed encroachment upon the adjoining property to the extent of 10 metres. According to the defendants, after the death of Lourenco in 1910, there was an inventory proceedings in respect of his properties and in the said inventory proceedings the said encroached portion was allotted to his daughter Francisco. The said Francisco later on got married to Simao Cardozo and went to live with him. In the meantime the said encroached portion which was allotted to Francisco continued to be in possession of her brother Jose Bento Vaz, who made further encroachment upon the property of the Comunidade towards the east. The fact of such encroachment was acknowledged and recorded at the time of the demarcation work carried out by the Comunidade in 1923 and it was noted that the encroachment upon the property of the Comunidade consisted of two parts, the northern part admeasuring 9821 sq. metres and the southern part admeasuring 12734 sq. metres. Thus, according to the defendants, Jose Bento Vaz, the son of Lourenco, was in actual possession of an area of 12106 sq. metres being the land held as Aforamento by his father Lourenco plus an area of 22555 sq. metres being the portion of total encroachment upon the property of Comunidade. The defendants contended that the said Jose Bento had become owner of the entire land by prescriptive right and as such the plaintiff, who claimed to have purchased the suit property from Simao Cardozo did not get any title. The defendants also contended that the suit for demarcation was not maintainable since the property was already demarcated.