Judgement

SARKARIA, J.:- This appeal by special leave is directed against a judgment dated January 20, 1968, of the Additional Judicial Commissioner, Goa, Daman and Diu.

2. The defendants, Jose Da Costa and his wife, Isabela Braganca, are the appellants, and the plaintiffs, Bascora Sadasiva Sinai Narcornim and is situated in the town of Sanguem, District Goa.

3. The plaintiffs instituted a suit on February 27, 1961 in the Court of Judge of Quepem Comarca in accordance with the Portuguese Law then in force in these territories for ejectment of the defendants from the suit property. It was alleged that on the death of Sadasiva, father of the plaintiff Bascora, in partition proceedings with minors (inventario), this plot was assigned to Bascora s mother Sitabai towards her moiety in the estate. On Sitabai s death, the property devolved on the plaintiffs-Bascora and his six sisters. Before the partition, of the property among the legal heirs of Sitabai, Bascora acquired the rights from some of his sisters and became the owner of the suit property with other heirs. Bascora s parents had inherited this property from their ancestors. The father of Bascora had permitted the ancestors of the defendants to build a house for their residence on a part of the property subject to the condition that they shall have to vacate the plot when called upon to do so. In the latter event, they shall be entitled to remove the super-structures of the building raised by them.

4. Notwithstanding the condition, Caetana Esperanca Fernandes, the mother of the appellant Jose da Costa. executed a deed on November 16, 1920 before the notary public of Comarca, which indicated that she and her family members were owners of the plot. On the basis of this deed, the defendants asserted ownership of that part of the plot on which stands the house built by their ancestors.

5. On the preceding allegations, the plaintiffs prayed for a declaration to the effect that the plaintiff, Bascora, and the other heirs of his mother, Sitabai, are the only owners of the plot in dispute and that the house in the occupation of the defendants on a part of that plot was constructed in the circumstances and subject to the terms aforesaid. They further prayed that the defendants be directed to vacate the plot after removing the materials of their house.

6. The defendants traversed the plaintiffs allegations and pleaded that it was Visnu Bascora Sinai Narcornim, an ancestor of the plaintiffs, who had given the suit property on perpetual lease to Pascoal da Costa, an ancestor of the defendants, in the year 1875 at an annual rent of Rupees 2/4/-. It was stated further that no such rent has been paid for over forty years before the suit nor has any rent ever been claimed by the family of the plaintiffs for such a long time. It was Pascoal da Costa, who possessed the plot as his own and originally built one house on it, but subsequently, his descendants constructed more houses so that at present there are three houses and one stable on the plot in dispute. On Pascoal da Costa s death, in inventario proceedings, this property on 16-11-1920 was "consolidated in full ownership in the patrimony of the descendants of the said Pascoal da Costa".

7. The defendants further averred that the suit property has been in their "public, peaceful and continuous" possession including that of their predecessors-in-interest, as owners for a period of more than 50 years and that they had acquired title by prescription.

8. The plaintiffs in their replication denied the grant of any perpetual lease as also the fact that Visnu Sinai Narcornim was their ancestor. It was stated that Visnu was only a brother of the father of the plaintiff. They further asserted that the document purporting to be a copy of the perpetual lease executed by the said Visnu was fake and forged.

9. By its judgment dated 30-4-1966, the trial court held that "the plot of land in question belonged to the household of the parents of the plaintiffs and