IMPORTANT POINT
The courts upheld the principle that documentary evidence must be reconciled with the actual state of the property, and findings of fact based on the preponderance of evidence are not to be disturbed unless shown to be perverse.

JUDGMENT/ORDER

1. Heard Mr Joaquim Godinho for the appellant.

2. This Second Appeal was admitted on 16/12/2011 on the following substantial question of law:-

<WXY>(I) Whether the Courts below have come to a perverse finding of fact that the disputed nullah is not existing at the site despite of the documentary evidence on record namely the documents of purchase of the appellant and the respondent and the survey records?</WXY>

3. The appellant is the original plaintiff, and the respondent is the original defendant in Regular Civil Suit No.161/2000/A/C instituted in the Court of the Civil Judge, Junior Division at Panaji, Goa.

4. The appellant's case is that he is the owner in possession of the property surveyed under No.101/3 of Taleigao Village, bounded on the West by a nullah or sangria and to the North by the property surveyed under No.101/2 belonging to the respondent. The appellant's case is that even the respondent's property is bounded on the West by a nullah or sangria and on the East by Panaji-Taleigao road.

5. The appellant's case further was that the nullah on the property's western boundary, though shown in the 1983 sale deed by which the appellant purchased his property and in the survey plan, was no longer existing on the loco at the time of such purchase. But the nullah or the sangria shown in the purchase document or survey plans of the respondent's property was very much existing. However, by putting up a construction above this existing nullah, the respondent has closed the nullah, thereby affecting the appellant's enjoyment of his property.

6. Based on the above pleadings, the appellant sought the following two substantive reliefs in the plaint:-

<WXY>(a) To order the defendant to demolish the compound wall to the height permitted by Municipal Laws;

(b) To order the defendant to open the nalla shown as the western boundary of his property and in the survey plan.</WXY>

7. Mr Godinho, learned counsel for the appellant, submitted that given the substantial question of law on which this Appeal was admitted, the Appeal is now restricted to the relief in terms of prayer clause (b) above.

8. Mr Godinho submitted that the purchase documents and the survey records concerning the respondent's property depict the existence of nullah on the western boundary. Further, the evidence shows that the west boundary was indicated as nullah when the respondent applied for permission to construct on his property. Given this documentary evidence, the Trial Court and the First Appellate Court's finding about the non-existence of the nullah at the site is vitiated by perversity.

9. To appreciate Mr Godinho's contention, some reference is necessary to the appellant's pleadings in his plaint. Firstly, the appellant admitted having purchased his suit property surveyed under No.101/3 of Taleigao Village by a 1983 sale deed. This sale deed explicitly states that the appellant's property is also bounded on the West by a nullah or a sangria. So also, the appellant has pleaded that the respondent's property surveyed under No.101/2 is bounded on the West by a nullah in terms of the 1992 sale deed by which the respondent purchased the property surveyed under No.101/2.

10. Thus, the sale deeds of the appellant and the respondent show that a nullah or sangria bounds their respective western boundaries. The evidence on record shows that even the survey plans reflect these boundaries and the position about the western boundaries being a nullah or a sangria. Permissions were typically applied based on the sale deeds and survey plans. Therefore, even the parties' applications for licenses to the local authorities reflect the western boundaries of the two plots as a nullah or a sangria. Therefore, if we have to go strictly by the documents on record, then the existence of a nullah on the western boundary of the appellant's property and the respondent's property cannot be seriously disputed.

11. However, the appellant has pleaded in the plaint that notwithstandi