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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. E.S. Da Silva, J.
Fabrica da Igreja de N.S. de Milagres.... Appellant.
Versus
Union of India and others.... Respondents.
First Appeal No. 104 of 1989, decided on 6-7-1994.
Advocates appeared :
F. Rebello, for the appellant.
J.E. Coelho Pereira, A.G. with J. Godinho, for the respondents.
See Limitation Act, 1963-Article 67.
Sections 3 and 61.
See Specific Relief Act, 1963-Section 38.
Article 67-Evidence Act, 1872-Sections 3, 60 and 61,
Prescription title-Specific pleading and proof of uninterrupted possession for specific period to be given for.
SPECIFIC RELIEF ACT, 1963
Sections 2 (d), 34, 38-Scope of.
This being a suit originally instituted by the appellant for permanent injunction simpliciter based on possession wherein no declaration is required to be sought, the question of applicability of Section 34 of the Specific Relief Act does not seem to arise. Indeed, as rightly pointed out by Shri Rabello on behalf of the appellant, it is Section 38 of the Act which comes into play in the facts of this case and according to this provision a suit for perpetual injunction is always available for the plaintiff who seeks to prevent a breach of an obligation existing in his favour. In terms of the definition Clause (b) of Section 2 obligation includes any duty enforceable by law.
In the instant case the appellant who has approached the Court to protect his alleged possession on the suit plot against the attempted encroachment by the respondents is not to be said as having lost he same and therefore there cannot be any dispute that the appellant has a right to secure legal enforcement by the respondents of a duty or obligation cast upon them not to cause dispossession unless by the due process of law.
In this case a Single Judge of the High Court, while dealing with the relevant scope of Sections 34, 37 and 38 of the Specific Relief. Act, held that the difference between Section 34 on the oe hand and Sections 37 and 38 on the other is that the Court may not grant a declaration where the matter capable of consequential relief. But there is no such restriction put on injunctions and the Court may grant an injunction as a substantive relief without any prayer for declaration, although I many cases a declaration may be implicit in the grant of a perpetual injunction.
Section 38-Evidence Act, 1872, Sections 3 and 61- Title declaration and permanent injunction suit against dispossession.
Neither possession source or entry right pleaded nor proved -- Possessions time and legality thereof not proved by sufficient evidence-Entries in making document neither source of title nor proof of possession-It is only for purposes of collection of revenue.
2. The case of the plaintiff/appellant (hereinafter called the appellant) is that they are the owners in possession of a plot of land, situated at Cortali of Sanguem Taluka, described in the Land Registration Office under No. 26737, in the Revenue Office under No. 542 and in the Old Cadastral Survey under No. 209. The said property is surrounded on all four sides by property Patem belonging to the Sanguem Municipality. The appellant claims that the property is in their open, peaceful and public possession and enjoyment for the last more than 50 years. There was a cemetry located in the property which was demolished 50 years ago and the new cemetry was built at some other place. Presently the land is barren. In the new survey the suit plot was included in Survey No. 121/0 which was shown in the occupation of the Government. When the appellant learnt about the inclusion, a representation was made on 15-9-1976 to the survey authorities requesting that the plot be given a separate number which application is still pending. It was further pleaded by the appellant that the respondent No. 3, a Medical Officer of the Government Hospital, Sanguem was planning to construct a building on the suit land and for that purpose instructed its agents and contractors to dig pits in part of the land. No consent of the appellant was obtained and the work continued inspite of their protests. The appellant prayed for a declaration of ownership and possession of the suit land for an order restraining the respondents from trespassing therein or from carrying on any construction on the land.
3. The defence of the respondents in the suit was that the suit land is part and parcel of the property Patem belonging to the Sanguem Municipality with an area of 5946 sq. metres and surveyed under No. 121. It was denied that the land was belonging and in possession of the appellant. It was stated that the fact that there was a cemetry in the plot does not show that the land belongs to the appellant. It is the respondent No. 2 Government of Goa that is erecting a building in the suit plot to be used as staff quarters for the Primary Health Centre of Sanguem.
4. Mr. Rebello, learned Counsel for the appellant, has firstly submitted that this suit having been originally filed for injunction simpliciter, although later on a prayer for declaration was inserted by way of amendment. After the matter of temporary relief was sorted out by mutual consent, the appellant need not ask for declaration of title in the suit since the same was based on its possession derived from a better title in relation to the title of the respondents. According to the learned Counsel from the evidence on record it was shown that the land in dispute was admittedly corresponding to the property surveyed under No. 209 in the Old Cadastral Survey. It has further come on record from the deposition of D.W. 10 Rajaram Kobleshwar that all the properties of the Municipality of Sanguem are surveyed in the Old Cadastral Survey. The appellants witness P.W. 1 Joao Mascarenhas has produced the Old Cadastral Survey which shows that the suit plot stands in the name of the appellant (pg. 16 of the trial Court file). The learned Counsel further contended that the matriz document of the property is also in the name of the appellant and besides a deed of justification of possession dated 1-11-1966 was also on record which refers to the matriz document under No. 542. The learned Counsel invited my attention that the said document of matriz is prior to 1966 and that on the basis of the deed of justification the property was registered in the name of the appellant in the Land Registration Office. The learned Counsel further urged that the oral evidence also establis
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