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2014 Supreme(Bom) 174
In the High Court of Bombay at Goa
R.S. DALVI, J.
Coiro Malgo Velipo, (deceased) represented by LRs. & Others
Versus
M/s. Sociedade Timblo Irmaos, represented by its Directors
Second Appeal No. 61 of 2003
Decided on: 24-01-2014
For the Appellants:S.D. Lotlikar, Senior Advocate with C. Padgaonkar, Advocate.
For the Respondent:D. Pangam, Parikshit Sawant, Advocates.
Headnote:Civil Procedure Code, 1908 - Section 100 - Second appeal. - In a second appeal, only question of law and not a question of fact, can be considered. - It is not in dispute that the suit property which is fenced either by the plaintiffs or by the defendants called Tudou was covered by the village Tudou. The claim of prescription and adverse possession of the defendants can be seen from the written statement in which they themselves claimed to have cultivated and fenced the property in dispute which is the original suit property. It cannot even be disputed that the plaintiffs acquired ownership under the sale deed dated 26.12.1952 in view of the production of the sale deed itself. The boundaries mentioned would have to be seen had there been any dispute with regard to any of the villages in which the proprietary right is claimed by the plaintiffs. Even if the ownership of the plaintiff’s is seen after scrutinizing the ownership of the predecessor-in-title of the respondents from whom the plaintiffs purchased the suit property, is a question of fact to be seen from the various inscriptions made in respect of the suit property which shall be considered presently. The possession of 100 years claimed by the defendants would have to be seen by the Court only if it was shown by the defendants and is only a question of fact. Whether the plaintiffs were out of possession or not is also similarly only a question fact. Whether hearsay evidence has been considered by the Court which vitiates the decision thereupon, is similarly only a question of fact.
The only question of law which could be considered, as reframed, is whether the plaintiffs’ claiming ownership of the vast portion of land called "the suit property" can claim such ownership rights only if they have traced the title of their vendors, or whether the plaintiffs can claim ownership of the entire property without scrutinizing the ownership of their own vendors.
This second appeal is filed challenging the judgment of the first appellate Court in favour of the original plaintiffs, decreeing the suit for injunction which was dismissed by the trial Court. The plaintiffs' suit is for injunction against the defendants restraining them from carrying on with plantation of any nature at a place called Tudou, in village Verlem, and interfering with the plaintiffs' plantation. The plaintiffs claimed to be owning a vast piece of land consisting of various villages of which boundaries were given in the plaint. The plaintiffs claimed to be growing paddy, coconut trees, fruits and having various gardens therein. The plaintiffs claimed their title under a Sale Deed dated 26th December, 1952. The plaintiffs claimed that their employee one Surya Shankar Gaunkar used to supervise the property.
2. It was the case of the plaintiffs that the defendants were staying in the place called Tudou. The defendants were allowed to erect their huts for residential purpose and were required to vacate them when called upon by the plaintiffs. The plaintiffs claimed that they had raised a fence in an area of 180 feet x 126 feet in Tudou, about half a mile away from the houses of the defendants for cultivation of coconut trees. The plaintiffs claimed that the defendants uprooted the coconut saplings and caused damage, against the acts of which the plaintiffs sued the defendants for injunction.
3. The defendants do not claim any right, title or interest in any property other than the fenced portion at the place, Tudou. This fenced portion is, therefore, the property in dispute. It is, therefore, the suit property out of the vast land owned by the plaintiffs. However, the plaintiffs claimed entire land to be the suit property.
4. The defendants denied the plaintiffs' ownership and possession of the entire property, as shown by the plaintiffs. However, the defendants claimed in para 4 of their written statement that they reside in ward Dumiavado of Village Tudou, in which they have their 13 houses for more than 100 years, The defendants belong to the members of Valipo, Gaunkar and Bogoto (Bhagat) families. They denied the gratuitous licence claimed by the plaintiffs in respect of their houses. The written statement shows 11 houses of Velipo, one house of Gaunkar and one house of Bogoto. It also shows that the property around the houses is enjoyed by the defendants by cultivation. This is claimed to be joint and ancestral property. The plaintiffs have no quarrel with the houses of the defendants, as also their plantation around the houses.
5. With regard to the claim of fencing a small portion of the property admeasuring 180 x 126 feet in Tudou claimed by the plaintiffs in paragraph 6 of the plaint, the defendants have denied that fact and emphasized that they had constructed the fence during the monsoon of 1976 to grow bananas. They contended that they had sugarcane plantation for 8 years. It could not be raised in the last 3 years due to shortage of water, which is explained in their evidence that it was because the plaintiffs had diverted the water supply. The defendants claimed that after their banana plantation was made, the plaintiffs removed it and put up coconut saplings, which were removed by the defendants. But the defendants denied any damage caused by them. Consequently, the case of the plaintiffs of removal of coconut saplings planted by them by uprooting them is admitted in the written statement itself.
6. The defendants showed their possession in the small portion of plaintiffs' land admeasuring 180 x 126 feet, which is the disputed land, only since 1971 ( eight years prior to the written statement which is filed on 30th March, 1979). Thus the cultivation of sugarcane was for 8 years prior to the filing of the written statement and it was not cultivated since 3 years prior to the filing of the written statement. Despite the claim of this cultivation from 1971, the defendants claimed to have fenced tha
