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IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 84 OF 2009

Mr. Nicolau Rosario Goes,

Senior Citizen,

Through his duly constituted

Power of Attorney Mr. Joquim Goes,

Son of Mr. Nicolau R. Goes,

Resident of House No.230,

Afonsowaddo,

Cavelossim, Salcete-Goa. ...... Appellant

V e r s u s

Mr. Joaquim Manuel Ires Gomes,

Major of age, Landlord,

Resident of Cavelossim,

Salcete-Goa. ...... Respondent

Mr. G. Shirodkar, Advocate for the Appellant.

Mr. M.P. Almeida, Advocate for the Respondent.

CORAM: F. M. REIS, J

DATE: 6TH AUGUST,2010.

ORAL JUDGMENT:

Heard the Learned Counsel for the Appellant and the

Respondent.

2.

The above appeal challenges the Judgment and Decree

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passed in Regular Civil Suit No.15 of 2009 by the learned District

Judge, South Goa, Margao, whereby the appeal preferred by the

Appellant came to be dismissed.

3.

The suit was filed by the Appellant on the ground

that he had been staying in the landed property known as

“Bigeleahem” or “Danghealem” situated at Afonsowaddo of

Cavelossim village, Salcete Taluka, Margao, for the last more than

45 years and that he is possessing a dwelling house bearing house

no.230 (new) and 13 (old) in the suit property, wherein he was also

carrying on bakery business for many years in the village. It is

further his case that the property where the dwelling house is

situated is surveyed under survey no.160/14 of Cavelossim village

which has been promulgated. It is further his case that he is

illiterate and that he made an application to the Deputy Collector to

delete the wrong entries in the survey records. It is his contention

that the Talathi directed him to move the Court for such correction.

It is further his case that beside residing in the dwelling house

bearing house no.13(old) and 230(new), he has also been

undertaking bakery business of preparing bread and supplying

them in the village with the help of others and his family members.

He further contents that the payment of house tax, trade tax and

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light tax to the local Panchayat was made by him. It is further his

case that the electricity supply continues to remain in the name of

his son Mr. Joao Rosario Goes and this aspect continues in view of

some family arrangement between the family members. It is

further his case that the respondent being the neighbour and

landlord of the property in the village requested the respondent to

sell of the portion of the suit property covering the house of the

appellant as they were in possession and enjoyment since their

childhood. However, after repeated requests the respondent agreed

not to disturb the use and enjoyment and possession of the

appellant's dwelling house, but did not agree to sell the plot

wherein the appellant had his dwelling house. It is further his case

that the appellant is not paying any rent or any payment to the

respondent. It is further his case that in view of the erroneous

entries in the survey records and for the purpose of correcting the

record of rights and deletion and cancellation of wrong entries as

shown therein, he filed an application dated 31.1.1992 before the

Deputy Collector. As the appellant was asked to move the civil

Court for rectification, the appellant filed the suit praying inter alia

for a mandatory injunction and/or direction and with the prayer to

change, to alter, to cancel and remove the words “rented” in the

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other rights column in survey no.160/14 of Cavelossim village,

Salcete Taluka and also for a mandatory injunction or direction of

mandatory nature directing the survey authorities including the

Talathi to carry out the orders and direction of the Civil Court.

3.

The Respon