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IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 103 OF 2008

Smt. Laxmibai Govind Bhat Korde,

Major of age,

Widow of Govind S. Korde,

Resident of

priol, Ponda-Goa.

(through her power of attorney

Shri Manaohar Deuba Bhat Korde)

…...

Appellant

V e r s u s

Shri Yeshwant Palni,

(Since deceased)

Represented through his legal heirs

1(a) Smt. Indira Yeshwant Palni

(since deceased)

1(b) Shri Pandurant Yeshwant Palni

1(c) Miss Padmaja Y. Palni

All major of age,

All residents of House no. 745,

Priol, Ponda - Goa.

…...

Respondents

Mr. S. D. Lotlikar, Senior Advocate with Ms. G. Xettigar, Advocate for the

Appellants.

Mr. Gaurish Agni and Mr. Shaikh Fahad, Advocates for the Respondents.

Coram

:-

F. M. REIS, J

Date :

23

^rd October, 2015.

ORAL JUDGMENT

Heard Shri S. D. Lotlikar, learned Senior Advocate appearing for the

Appellants and Shri G. Agni, learned Counsel appearing for the Respondents.

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2. The above Appeal came to be admitted on 17.09.2009, on the following

substantial question of law :

"(1) Whether the impugned judgment and

decree is vitiated for failure on the part of the

First Appellate Court, to appreciate that a Civil

Suit is to be decided on preponderance of

probability and the Trial Court after concluding

that the plaintiff had established title as well as

possession in respect of the suit property, had

decreed the suit of the Appellant against the

defendant, who was found by the Trial Court to

have neither title, nor possession in respect of

any part of the property surveyed under No.

118/0, particularly in view of the fact that the

First Appellate Court found nothing wrong in the

Trial Court's finding that the defendant had failed

to establish such title or possession ?

(2) Whether the appreciation of evidence by the

First Appellate Court, and the reversal of the

judgment of the Trial Court, based on

appreciation of oral evidence duly supported by

documentary evidence, is arbitrary ?

(3) Whether the First Appellate Court could have

dismissed the suit of the appellant in toto, when

the ownership and title of the appellant in

respect of the property surveyed under No.

126/2 which is a part of the suit property, was

not disputed by the defendant, who claimed a

right to be in possession of only part of the

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property surveyed under No. 118 ?

3.

Shri S. D. Lotlikar, learned Senior Advocate appearing for the

Appellants, has pointed out that the Appellants have filed a suit for permanent

injunction, inter alia, on the ground that the Appellants are owners and in

possession of the property surveyed under no. 126/2 and 118(part) and 317/2 of

Velling Priol Village. Learned Senior Advocate has pointed out that it is the case of

the Respondents that the Respondents are the tenants of the property surveyed

under no. 126/3 and 175/3 of the same Village. Learned Senior Advocate further

pointed out that the dispute in the present suit is with regard to a portion of the

property surveyed under no. 118/0 of the said Priol Village which, according to the

Appellants, forms part of the property belonging to the Appellants. Learned Senior

Advocate has pointed out that the Respondents have no title or interest in respect

of the property surveyed under no. 118/0 as, according to him, the property which is

tenanted to the Respondents is surveyed under no. 175/3 which is located on the

southern side of the property surveyed under no. 118/0. Learned Senior Advocate

further pointed out that the Appellants have clearly averred in the plaint that the

portion of the property surveyed under no. 118/0 belonging to the Appellants and is

encircled by cactus plantation. Learned Senior Advocate has thereafter taken me

through the written statements filed by the Respondents to point out that the

existence of such cactus plantation boundary separation has not been disputed by

the Respondent but the