(Naresh H. Patil, J.)

1. This Second Appeal is filed against the Judgment and Decree dated 5th November 2004 passed by the IInd Ad-hoc Additional District Judge at Panaji in Regular Civil Appeal No. 56 of 2001.

2. The appellant is the original defendant. In the present case, the Plaintiffs filed a suit with substantive prayer clauses:

(a) For a declaration that the Plaintiffs are the owners in possession of the suit property.

(b) For a direction to the Enquiry Officer, City Survey at Panjim, to delete the name of the Defendant from the records maintained by the same officer under the Land Revenue Court and to insert the names of the Plaintiffs in the said records.

3. The plaintiffs contended that they are the owners in possession of a property situated at Alto de Pilotos bearing Chalta Nos. 87 to 91 of P.T. Sheet No. 44 of City Survey of Panjim bounded on the east with the lane of steps, on the West with the hill and property of Leonardo Fernandes and others, on the North with the lane which separates this property from the house of Carmina Fernandes and on the South with the urban property of Antonio D'Souza. The said property bears matriz No. 401 old corresponding to 306 new and this property bears No. 6645 at pages 6 of Book B 18 New.

4. The plaintiffs contended in the plaint that the suit property belongs to Caetano Mariano Fernandes, the father-in-law of the plaintiff no.1 and on his death, the husband of the plaintiff no.1, the father and father-in-law of the remaining plaintiffs late Antonio Nery Francisco Fernandes, became the sole owner. The Caetano Mariano Fernandes was married to Ana Florinda George alias Florinda Fernandes. The said Antonio Nery Fernandes expired on 05/06/1976 leaving behind him the plaintiff no.1 as his co-sharer and the remaining plaintiffs as his heirs.

5. The plaintiff no.1 had approached the Rent Controller in Case No. Rent/ARC/24/86, and at that time, it came to notice of the plaintiff no.1 that the records of the same showed the suit property recorded in the name of the Defendant as per the Judgment and order dated 13/06/1986 delivered by Enquiry Officer, City Survey, Panjim. The defendant, thereafter, gathered copies of the documents and then sent a notice to the tenants of the plaintiff Mr. Nareshwar Maralkar informing that the defendant is the owner of the suit property and they should pay rent to him. This letter was issued on 18/02/1996.

6. The plaintiffs specifically contended that the suit property is the property of the plaintiffs and parts of the same have been in possession of the plaintiffs for more than 30 years. The plaintiffs, thereafter, decided to file suit claiming that they are owners of the suit property. The cause of action arose on 18/02/1986 when the tenants of the plaintiffs received letter from the defendant.

7. The defendant filed written statement, in which it was contended that the Deed of Sale dated 04/04/1946, was duly registered in the Notary Office of Fernando Jorge Colaco. Mr. Licurgo Pedro Paula da Costa, purchased from Dr. Joaquim Joao Aleixo do Rosario da Santa Rita Colaco a house property. The said property was registered in the Land Registration Office of Ilhas under number 2177 of Book B 6 New, corresponding to Lote No. 13 and also another property which is one eighteenth part, corresponding to Lote No.14 of the property known as 'Bairro Alto Dos Pilotos', both situated at Panaji, Goa. It is contended that the defendant managed to get the possession of few tenements while few remained with the tenants. The plaintiffs contended that the suit property belongs to them and they are the owners of the said property. The plaintiffs claim regarding ownership was decided by the Deputy Collector.

8. The application under Order VI Rule 5 of Civil Procedure Code was filed by the the defendant on 19/06/1987. Paragraph 5 of the application reads as under :

“5. The plaintiffs have pleaded in para 8 that the suit property was the property of the pla