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2010 Supreme(Bom) 1125
In the High Court of Bombay at Goa
MR. JUSTICE U.D. SALVI
Shri Shaikh Mohammad Sharif Ibrahim mamlekar Major of age & Another
Versus
Shri Shaikh Mohammad Ali Abdul Razad Mamlekar, Major of age & Another
SECOND APPEAL NO. 51 OF 2006
Decided on: 10-08-2010
For the Appellants:Parag Rao, Advocate. For the Respondents:M. Amonkar, Advocate.
Headnote:Portuguese Civil Code - Articles 528 and 529 - Civil Procedure Code, 1908, Section 100 - Second Appeal - Against dismissal of counter claim and its endorsement by trial Court as well as by First Appellate Court - Suit for declaration, possession and permanent injunction by respondents against appellants - Counter-claim to - Dismissed by trial Court - First Appellate Court confirmed judgment and decree of trial Court - Second appeal by defendants - Substantial question of law - Impugned judgment and decree vitiated by perversity and non-application of mind - Held - Courts below ignored plea of ownership raised by appellants on basis of prescription in terms of Article 529 of Code - By virtue of Article 529 of Code, appellants/defendants perfected their title to suit property - First Appellate Court erred in not declaring appellants as owner of said property despite recording finding that appellants in possession of said property for more than 4 decades - Impugned judgment and decree set aside - Defendants/appellants declared to have acquired title to suit house - Appeal allowed with costs.
Portuguese Civil Procedure Code, 1867 - Articles 528 and 529 - Second appeal against dismissal of counter-claim in RCS - Respondent prayed for they are absolute owners of suit property - Including house of appellants - Plea of defendants - They are in possession of suit house for a long time - Trial Court dismissed a well as counter claim - First appellate Court confirmed decision - Second appeal dismissed at admission stage - Court gave negative findings - Trial Court engaged in thought of adverse possession - Fully overlooked acquisition of title by positive prescription - Possession for more than decades of ownership raised by appellants on basis of Articles 528 and 529 of Code - First appellate Court was wrong in not declaring appellants as owners - Appeal allowed - Cost to be paid. - It appears that the first Appellate Court completely misread Jose Da’Costa’s case and examined the case at hand only from one angle that the case was one of adverse possession. The first Appellate Court completely overlooked or ignored the other provision of Portuguese Civil Code governing the acquisition of title by prescription. On the backdrop of the facts established in evidence showing the possession of the suit house in the hands of the appellants/ defendants for more than decades, the Courts ought to have given thought to the plea of ownership raised by the appellants defendants on the basis of prescription in terms of Articles 528 and 529 of the Portuguese Civil Code.
It is not difficult to find that the Courts below ignored the plea of owner ship raised by appellants on the basis of prescription in terms of Article 529 of Portuguese Civil Code on a misconception that the prescription under the Portuguese Civil Code is akin to the claim of ownership of adverse possession under the Indian Limitation Act, 1963. By virtue of Article 529 of Portuguese Civil Code, the appellants/defendants had perfected their title to the suit property i.e. house and the landed property described in the counter claim. The first Appellate Court, therefore erred in not declaring the appellants as the owners of the said property despite recording of finding that the appellants were in possession of the said property for more than 4 decades. The remaining substantial questions of law are, therefore, answered accordingly.
The plaintiffs or any person claiming through them are restrained from interfering in any manner with the possession and enjoyment of the defendants in respect thereof.
This second appeal questions the dismissal of the counterclaim in RCS No.49/1998/C and its endorsement in RCA No.6/2004 by the Trial Court- CJJD at Bicholim and the First Appellate Court – Additional District Judge, Mapusa respectively.
2. The respondents /plaintiffs prayed for declaration that they are the absolute owners of the suit property including the house bearing No.23 in occupation of the appellants / defendants being the part of the property popularly known as Gharbhatule surveyed under Survey No.40/15 of Bicholim, Muslimwada, Goa and for consequential deletion of entries of the names of the defendants in occupant's column of the suit property, and for the order directing the defendants to vacate the said house and deliver its vacant possession and further for permanent injunction restraining them from interfering in any manner in the suit property.
3. According to the plaintiffs (the respondents herein), the father of the plaintiff No.1 Shaikh Mohammad Ali had purchased 1/7th part of the said property popularly known as Gharbhatule in public auction held on 10th November, 1915 and the other 1/7th part of the said property adjoining thereof along with the said house was originally belonging to the father of the plaintiff No.1 thereby giving rise to the suit property being 2/7th part of the big property Gharbhatule; and the defendants' mother being close relative of the plaintiff No.1 was allowed to stay in the said house property as a caretaker and after some years the defendant No.1 Shaikh Mohammad Sharif (the appellant No.1 herein) had started residing in the suit house with his mother. It was also the case of the plaintiffs that in the month of April 1993, the defendant No.1 Mohammad Sharif had deceptively obtained a 'No objection' from the plaintiff No.1 upon a misrepresentation that such 'no objection' was required for undertaking minor repairs to the said house and for water connection; and as such the said 'no objection' is void-abinitio. In the written statement resisting the plaintiffs' case, the defendants (the appellants herein) besides denial specifically contended that the suit house was constructed by the mother of the defendant No.1 in 1953 with the money given to her by the defendant No.1 at the same place where one storeyed family house of the defendants was standing; and the defendants are in possession and enjoyment of the suit house and all the open area in front of it upto the public road since 1953 peacefully, openly, continuously and without obstruction from any person whatsoever as owners thereof. The Counterclaim to: the declaration that the defendants have acquired title to the defendant's property falling in Survey No.40/15 of Bicholim, and bounded on the East by compound wall supporting the house possessed by the plaintiff, and on the West by property of Nanhe Xaculi, on the North by the property of Yunus and on the South by Mapusa-Valpoi Road by way of prescription and/or adverse possession; and the injunction restraining the plaintiffs or the persons claiming through them from interfering in any manner with the possession and enjoyment of the defendants with respect to the said property - was duly made by the defendants in the said suit.
4. Parties led the evidence and upon considering the evidence and hearing the parties, the Trial Court dismissed the suit as well as the counterclaim. The First Appellate Court found no merit in the appeals preferred by the parties to the said suit and confirmed the judgment and decree of the Trial Court dismissing the suit as well as the counterclaim.
5. The Second Appeal preferred by the respondents herein challenging the dismissal of the suit, came to be dismissed at the admission stage. However, the present second appeal preferred by the defendants came to be admitted on the following substantial questions of law:
1. Whether the impugned decree upholding the Judgment and Decree of the trial Court is vitiated by perversity and non-appli
