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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT GOA
Bharati H Dangre, J.
Constancio Luis Caetano Rubina Lobo - Appellant
Versus
Leandrina Antao - Respondent
Second Appeal No. 94 of 2005
Decided On : 11-02-2021
ADVERSE POSSESSION - LIMITATION ACT - POSSESSION - TITLE - TRESPASS - OWNERSHIP
Fact of the Case:
Plaintiff filed a suit for declaration, possession, and perpetual injunction over a property, claiming ownership and possession through inheritance. The defendant denied the existence of the property and claimed adverse possession since 1965. The trial court declared the plaintiffs as owners and entitled to possession, but the appellate court reversed the decision, finding the suit barred by limitation.
Finding of the Court:
The appellate court's decision was upheld. The plaintiff failed to establish ownership of the property, and the defendant proved adverse possession for over 12 years, barring the suit under Article 65 of the Limitation Act.
Issues: 1. Whether the plaintiff proved ownership and possession of the property? 2. Whether the defendant proved adverse possession? 3. Whether the suit was barred by limitation?
Ratio Decidendi: 1. The plaintiff failed to establish ownership of the property through the land registration document and matriz certificate, as they did not correspond to the property described in the plaint. 2. The defendant proved adverse possession through evidence of construction, cultivation, and regular agricultural operations on the property since the date of purchase in 1965. 3. The suit was barred by limitation under Article 65 of the Limitation Act, as the defendant's possession became adverse to the plaintiff in 1966, and the suit was filed in 1987.
Final Decision: The second appeal was dismissed, upholding the judgment of the appellate court.
JUDGMENT
Bharati H. Dangre, J. - The Appeal revolves around the property admeasuring 503 sq.m known as 'Mixto Sonarxeilem, 2nd Adicao or Mixto Sonarxetilem, situated at village Camurlim of Salcete Taluka and as averred in the plaint, is enrolled in the Revenue office at Margao under Matriz No.167 with an existing house registered in Taluka office under Urban No.85. The said property is surveyed under Survey No.109/7. The discord revolving around the property arises out of the description of the said property given in the plaint by the plaintiff and the defence set up by the defendant in their written statement to the effect is that there exist no such property as described in the plaint and the survey holding no.109/07 of Village Camurlim forms part and parcel of the opponents bigger property described in land registration office of Salcete under No. 45018 and Matriz No. 166. The parties are in controversy about the ownership and possession of the said property.
2. The Appellant in this appeal is the plaintiff who instituted a Suit for declaration, possession and perpetual injunction vide Regular Civil Suit No. 294 of 1987 and since deceased, his legal heirs are on record. The respondents are the original defendants and on demise of the defendant nos.1, 2 and 3, their legal heirs are on record and are contesting the Appeal.
The suit for declaration and consequential possession as mentioned above was based on the property mentioned above and the plaint outlined the boundaries of the suit property shown under Matriz no.167 with the land registration no. 28030 at Folios 51-V of Book 'B' no.72, New series as Sonarxeta Bata @ Gor Bata. The plaintiff claimed that the suit property referred to in paragraph 1 of the plaint was in ownership, possession and title of one Mariano Angelino Dias and his brother Joaquim Antonio Dias and from whom the property devolved up on their daughter Maria, Santena Rita Carolina Dias. Upon her death, it is the plaintiff no.1 who claim the property by inheritance. The plaint pleaded that since the plaintiffs are residing at Mumbai and the defendant no.1, who owns a property to the West of the suit property, taking advantage of their absence has fraudulently entered the suit property in her name and that she has no right, title or interest in the suit property. On gaining knowledge about the plantation being done on the suit property and some laterite stones being pulled on the said property and when the attempt on the part of the plaintiff's attorney to examine as how the property has devolved upon them and not finding any satisfactory explanation, the suit is instituted on 1st October 1987 as the cause of action is pleaded to have arisen on or about June 1997 when the plaintiffs learned about the illegal acts of the defendants. It pleads that the Suit is within limitation and pray for judgment and decree declaring the plaintiff as owners in title of the suit property and for consequential possession thereof, with consequential deletion of the name of defendant no.1 from the Taluka Revenue Matriz and substitution of the plaintiffs name therein.
3. The pleadings in the plaint and the relief sought is denied by the defendants by filing a written statement. The defendants specifically denied the existence of the property described in the plaint and stated that the survey holding no.109/7 of village Camurlim form part and parcel of the defendants bigger property described in the land registration office of salcete under no.45018 and matriz under 166 with the following boundaries "on the east by the street or municipal road; on the west by public road, on the north by first addition of the property Laquia Naicalem Patoly, of Augusto F. Boaventura Andrade, and on the south by the property Mixto Sonarxetilem bata of Jeremias A.de Carvalho and property of Patricio Caetano Dias, Pedrinho Dias and others." The defendants raised a plea of res-judicata by referring to the earlier proceedings of injunction filed by the
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