IMPORTANT POINT
A claim of settled possession must be substantiated by clear evidence and cannot be established merely through assertions; the burden of proof lies with the claimant to demonstrate possession and the terms of any alleged family settlement.

JUDGMENT/ORDER

1. This second appeal impugns judgment and decree dtd. 29/1/2010 of the District Court, Mapusa passed in Regular Civil Appeal 64/2009. The appeal has been admitted on the following substantial questions of law:

(i) Whether the Appellate Court committed illegality by reversing the order passed by the Learned Trial Court, which had allowed the appellants' Counter Claim for permanent injunction as also mandatory injunction thereby directing the respondents to remove the wooden showcase/ wooden planks fixed on the door of the suit shops leased to the appellants, despite the Appellate Court giving a categorical finding that the respondents had no right to do so, and that, the said act was an act of encroachment?

(ii) Whether the findings of the Appellate Court that the respondents were in settled possession of the space outside the door of Shop No.98, based on the exhibits PW1/J, PW1/M, PW1/E, and PW1/C and the bills from the year 1989 to 1992 can be sustained in law, when neither the authors of the said documents were examined nor the said documents taken at its face value could establish the respondents' possession of the space outside Shop No.98?

(iii) Whether the Appellate Court misconstrued the concept of 'Settled Possession' and thereby erred in disallowing the permanent and mandatory injunction granted by the Learned Trial Court in favour of the appellants, when the said concept, in law, does not mandate that a person in settled possession can never be injuncted but only implies that, recourse should be had to law for removal of such a person?

The appellants herein are the original defendants to Regular Civil Suit No. 68/1999/C filed by deceased respondent Raghuvir Shamba Amonkar, the sole plaintiff in the proceedings; for the sake of convenience and easy reference, the appellants in this appeal shall be referred to as "defendants" and the deceased respondent herein shall be referred to as "plaintiff".

2. The facts that have led to the filing of the present second appeal are the following:

a) The plaintiff instituted Regular Civil Suit 68/1999/C claiming a relief of permanent injunction against the defendants from interfering with the suit shop, described in para 3 of the plaint as shop no. 98 situated in Mapusa Municipal Market, at Mapusa, Goa. According to the pleadings in the plaint, the suit shop was owned by the Mapusa Municipal Council(MMC) and was leased to the late Vishwanath Gunaji Amonkar, 38 years prior to the filing of the suit (which would date to the year 1961); apart from the suit shop, it is the plaintiff's case that another shop bearing shop no. 95 in the same market was leased to the said Vishwanath simultaneously with the lease of shop no. 98.

(b) The plaint further avers that Vishwanath died about 22 years prior to the institution of the suit (which would be in the year 1977) and his estate was succeeded by 11 children, being two sons, Gunaji and Anand, and 9 daughters. The plaintiff claims to be the husband of one of Vishwanath's daughter named Tulshi whom he married 45 years prior to the filing of the suit.

(c) It is further the plaintiff's case that about 28 years prior to the filing of the suit (which would be in the year 1971), during the lifetime of Vishwanath, an oral family settlement was arrived at, under which Vishwanath handed over possession of the suit shop to the plaintiff (his son-in-law), and allowed him to occupy the same and conduct a business therein. That after being put in possession, the plaintiff commenced a business of grocery and general store in the suit shop, in respect of which the plaintiff was regularly paying the sale tax with respect to the business, which was registered under the Weights and Measures Act, 1985, Shops and Establishment Act and was paying house tax and rent for the suit shop to the Mapusa Municipality in the name of Vishwanath.

(d) The plaint further states that the defendants, (who are the sons of Gunaji), have no right to interfere with the possessi