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2013 Supreme(Bom) 870
In the High Court of Bombay at Goa
U.V. BAKRE, J.
Ajit R. Alve
Versus
Smt. Laxmi Vithal Gaonkar & Others
First Appeal No. 161 of 2005
Decided On : 25-04-2013
Advocate Appeared:
For the Appellant:J. P. Mulgaonkar, Advocate.
For the Respondent:R9, R10 & R11, Ms. Neha Kholkar, Additional Government Advocate.
The main legal point established in the judgment is that while a suit for demarcation need not be preceded by exact proof of identification of the property, the plaintiff must prove the location and identification of the disputed land to succeed in a demarcation suit.
Headnote:
Demarcation - Property Dispute - Portuguese Civil Code - Articles 2340, 2341, 2342, 2343, 2344
Fact of the Case:
The plaintiff filed a suit seeking demarcation of property boundaries. The trial court dismissed the suit, finding that the property had not been identified and the suit was barred by limitation. The plaintiff appealed the decision.
Finding of the Court:
The court found that the suit was not barred by limitation as the cause of action arose when the prayer for demarcation was rejected. However, the plaintiff failed to prove the location and identification of the disputed land, and the suit was dismissed.
Issues: The main issues were whether the suit was barred by limitation and whether the plaintiff had proved the location and identification of the disputed land.
Ratio Decidendi: The court held that the suit was not barred by limitation, but the plaintiff failed to prove the location and identification of the disputed land, leading to the dismissal of the suit.
Final Decision: The appeal was dismissed, and no costs were awarded.
This appeal has been preferred against the Judgment, Order and Decree dated 9/3/2005 passed by the learned Adhoc Additional District Judge, FTC-II, in Civil Suit No. 128 of 2004 (New)/Regular Civil Suit No. 45 of 1996/A (Old), by which the said suit has been dismissed.
2. The appellant was the plaintiff in that suit, whereas the respondents no. 1 to 8 and 12 were the defendants no. 1 to 8 and 12 and the respondents no. 9, 10 and 11 were defendants no. 9, 10 and 11. The parties shall, hereinafter, be referred to in the same manner as they appear in the cause title of the said suit.
3. The plaintiff had filed the said suit for the following relief:
“That the Directorate of Land Survey Panaji and or the Office of the Inspector of Survey and Land Records, South Goa, Fatorda, Margao, be ordered and directed to demarcate the southern boundary of the property “Datrichem Upor” under Alvara No. 1597 & Plan No. 15371 vis-a-vis the northern boundary of the Aforamento under title No. 1959 & the Plan No. 17639 and the plans of survey nos. 21/1, 21/2, and 22/0 of Maulinguem village and to separate the area of the property 'Datrichem Upor” under title No. 1597 & Plan No. 15371 included in survey no. 21/2 of Maulinguem village; that a separate survey holding number be ordered to be given to the separated area and the Mamlatdar, Sanguem and or the Talathi of village Kalay and or the Dy. Collector, Quepem be ordered and directed to record the separated or newly formed survey holding in the name of late Ramanata Govind Alve.”
4. Case of the plaintiff, in short, is as follows:
He is Cabeca-de-Casal/Head of the Family appointed by the Court of Civil Judge, Senior Division, Margao in Inventory Proceedings No. 18910/75/A, which are pending and which were initiated upon the death of Shri Ramanata Govind Alve and his wife Smt. Janqui Ramanata Alve, who are parents of the plaintiff. In the said Inventory Proceedings, at Item No. 2 of the list of Assets, a property known as “Datrichem Upor” situated in village Maulinguem, in Sanguem Taluka admeasuring 83627 square metres having the shape and extension as per the Plan No. 15371 which is a Government Aforamento granted to late Shri Ramanata Govind Alve under Title No. 1597, has been listed. The said Aforamento land comprises of various plantations and is surrounded by a barbed wire fence on all sides except on the eastern side to the extent it touches survey no. 17 of Maulinguem village belonging to Government and the northern part of survey no. 23 of Maulinguem village. The plaintiff and his family members have been in possession and enjoyment of the said entire area of 83627 square metres. During the recent survey conducted for the purpose of Record of Rights, the said Aforamento of late Ramanata Govind Alve, to a major extent, came to be surveyed under no. 21/1 of Maulinguem village having an area of 77250 square metres, in the name of said Ramanata, while a substantial area from the remaining area of said Aforamento, came to be surveyed under no. 21/2 of Maulinguem village and has been recorded in the name of late Vithal Vasu Gaonkar. The said late Vithal Vasu Gaonkar has also been granted, by the Government, an Aforamento having an area of 67468 square metres vide Aforamento no. 1959 and having the shape and extension as shown in the Plan no. 17639. Said Vithal Vasu Gaonkar was the husband of defendant no. 1 and the father/father-in-law of defendants no. 2 to 8. The said Aforamento of late Vithal Vasu Gaonkar came to be surveyed under no. 22/0 of village Maulinguem with an area of 63525 square metres and partly in survey no. 21/2 having an area of 7575 square metres. Thus, the name of Shri Vithal Vasu Gaonkar is wrongly recorded as lessee in survey no. 21/2. In the plan no. 15371 pertaining to the plaintiff's Aforamento, the boundary stone marks are numbered and the area of late Shri Ramanata Govind Alve left out and included in survey no. 21/2 is from the stone marks bearing numbers 7-8
