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Bombay High Court
(DECEMBER 21, 2004)
COMMUNIDADE OF MOROMBIO GRANDE
Versus
JOSE AUTONIO RODOILO ACUAVIVA BRAGANZA
Portuguese Civil Procedure Code, 1939 - Articles 535, 552 and 559 - Civil Procedure Code, 1908, Section 96 - Suit for declaration and mandatory injunction. - Since trial Court held defendants as encroachers of suit land hence plaintiffs entitled to mesne profits.
Possession and Injunction - Suit for declaration, injunction and mesne profits. - Once defendants were held to be encroachers on suit land by trial Court, plaintiff entitled to decree and receive mesne profits. - Suit was filed for declaration and mandatory injunction as well as mesne profits in respect of the property situated at Morombi O Grande. The suit was instituted by the appellant-Comunidade of Moromobi O Grande. Defendant No. 1 was the father of defendant No. 3 Angelica and defendant No. 4 Egidio. Defendant No. 2 was the second wife of defendant No. 1 and step-mother of defendants No. 3 and 4. The first wife of defendant No. 1 and the mother of defendants No. 3 and 4 died on 22.5.1963. The suit property which was alleged to have been encroached upon by the father of defendant No. 1 sometime in 1946. It was contended by the plaintiff that it is an absolute owner and possessor of a rustic property. It was contended by defendants that they were owners of the suit land by virtue of adverse possession and the plaintiff had no subsisting right whatsoever in the said land. The suit land was possessed by them through their grandfather Egidio since 1916 and upon his death, by defendant No. 1. The documents showed that an area admeasuring 26,370 sq. metres was granted to late Egidio and the deceased had encroached upon neighbouring area admeasuring 1,44,342 sq. metres. For the first time, the encroachment was sought to be regularized by application of August, 1967, and followed by another application in October, 1973. Both these applications came to be rejected in 1975 by the plaintiff. Defendant No. 1, in both these applications has clearly admitted the encroachment having been made on the suit land. These documents were maintained in the normal course and as per the registers maintained under the Code of Communidades. They were duly proved by the evidence of PW 1 to be the extracts from the register maintained by the Communidade. These documents also showed that as per the provisions for regularisation, as set out in the Code of Communidades, defendant No. 1 had tried for regularisation, but the same was rejected in 1975. Defendant No. 1 was thus, an encroacher when he submitted the first application itself. The theory of ownership by adverse possession has been rejected by the trial Court. Therefore, the same is not available to the defendants, unless they had challenged the said finding and the challenge was upheld. This issue has attained its finality. Once the defendants have been held to be the encroachers on the suit land, the plaintiff was entitled to receive mesne profits with respect to the said property. Suit is decree against the defendants. It is held that the defendants have no right whatsoever over the land. It is further declared that the said land belongs to the plaintiff. The defendants are directed to quit and vacate the suit land and deliver peaceful possession thereof to the plaintiff. The defendants are also directed by perma-nent injunction, on handing over the suit property to the plaintiff, to refrain themselves and their servants, agents and workers from, in any way, interfering with the said land.
( 1 ) THIS appeal arises from the Judgment and Order dated 4-9-1999 passed by the learned Civil Judge, Sr. Division, at Panaji in special Civil Suit No. 91/81 which was filed for declaration and mandatory injunction, as well as mesne profits in respect of the property situated at morombi O Grande. The suit was instituted by the appellant-Communidade of morombi O Grande. Defendant No. 1 is the father of defendant No. 3 Angelica and defendant No. 4 Egidio. Defendant No. 2 is the second wife of defendant no. 1 and stepmother of defendants No. 3 and 4. The first wife of defendant no. 1 and the mother of defendants No. 3 and 4 died on 22-5-1963.
( 2 ) THE suit property which was alleged to have been encroached upon by the father of defendant No. 1 sometime in 1946 or thereafter was shown as bounded by letters L, M, N, O, P, Q, B, A, H, G, I, J, K and L and it admeasured 1,44,340 sq. metres. The plaintiff Communidade who was otherwise holding agricultural land in Survey No. 218/1 admeasured 7 hectares 9 ares and 87 sq. metres, as well as Survey No. 219/1 admeasured 12 hectares, 44 ares and 75 sq. metres. It appears that sometime in 1972, the State Government acquired land admeasuring 45,260 sq. metres from Survey No. 218/1 and bounded by letters L, X, Y, H, G, I, J, K and L. The Land Acquisition Officer passed an Award on 26-2-1973. The plaintiff submitted an application to the Dy. Collector praying for release of the amount in its favour. As there was a dispute between the plaintiff and defendant No. 1 regarding the apportionment, in respect of the compensation amount, the amount came to be deposited with the Dy. Collector and it was not disbursed to any of the contesting parties.
( 3 ) IN Special Civil Suit No. 91/81, it was contended by the plaintiff that it is an absolute owner and possessor of a rustic property at Morombi O Grande which bore no special name and is bounded on the east by property of Francisco xavier da Costa Pegado, on the west by the Village Murda, on the north by the property of heirs of Manuel Jose Caldeira, Roberto Caldeira, Alvaro dos remedies Furtado and Jose Antonio Gonsalves and on the south by the public road and the property of the plaintiff. Out of the said property, an area admeasuring 45,260 sq. metres was acquired by the State Government. In the plan annexed to the plaint, Part I and Part II were shown in respect of this acquired land and it was contended that Part I area admeasuring 3400 sq. metres fell in the share of the defendants and the remaining area admeasuring 41,800 sq. metres was from the holding of the plaintiff. The plaintiff was, therefore, entitled for the compensation in respect of the land admeasuring 41,800 sq. metres. The defendants were entitled for compensation in respect of the balance area i. e. 3400 sq. metres only. The area admeasuring 3400 sq. metres was shown by letters a, x and y in the plan; whereas, the balance area (Part II) was shown by letters i, J, K, L, X, A, Y, H, G and I. In short, the suit filed was for declaration that the defendants have no right whatsoever in the land shown as Part JJ and bounded by the letters I, J, K, L, X, A Y, H, G and I in the plan marked x and submitted with the plaint as well as for the compensation in respect of the said area by giving part of the compensation to the defendants in respect of the area marked as part I and bounded by the letters A, X and Y Part-I (triangular in shape ). Theplaintiff had also prayed for mesne profits in respect of the area marked as Part II in Annexure X as well as directions to vacate the remaining suit land and deliver its peaceful possession to the plaintiff. A permanent injunction to refrain the plaintiff and its servants, agents, workers etc. , from interfering with the remaining suit land marked as Part III, in any manner was also prayed for.
( 4 ) WRITTEN statement was filed by defendants No. 3 and 4 and defendants no. 1 and 2 did not choose to file written statement or any pursis, adopti
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