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CASE NO.: Appeal (civil)  7349 of 2001

PETITIONER: Maria Colaco & Anr

RESPONDENT: Alba Flora Herminda D’Souza & Ors

DATE OF JUDGMENT: 19/02/2008

BENCH: A.K.MATHUR & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.7349 OF 2001

A.K. MATHUR, J.

1.              This appeal is directed against the order dated  5.3.2001 passed in Second Appeal No.55 of 2000 by the High Court  of Bombay at Goa whereby learned Single Judge has set aside the  order of the first appellate court  and allowed  the suit of the  original plaintiff and granted injunction restraining the  defendants from proceeding with the construction  in the suit  property or doing anything in the suit property and the  defendants were directed to restore the suit property in its  previous condition by filling up the foundation trenches and  removing  anything done or might have been done by the  defendants in the suit property. Aggrieved against this order  the present appeal was filed. 2.Brief facts which are necessary for disposal of this appeal  are that the suit property was granted by the Governor General  Do Estado Da India,  to one Mr. Antonio D’ Souza on payment of  Rupees four nine anna and twenty paise  payable each year to the  State. Antonio D’Souza died leaving behind  his heirs, his  children Jose Maria D’ Souza and Elisa D’ Souza. Jose Maria D’  Souza expired leaving behind her daughter Umbelina D’ Souza.  Lawrance D’ Souza, husband of Umbelina D’ Souza also died.   Umbelina D’ Souza died leaving behind the plaintiff and his  brothers.  As the plaintiff was staying in Bombay, he requested   one Amorim Velho, son of Elisa D’ Souza to look after the  property and accordingly, he was looking after the suit property  till 1977. Thereafter, Joildo De Aguiar looked after the  property.  In August,1981 Aguiar went abroad and returned in  November,1981. On his return he found that some construction  work was undertaken by  M/s.Pinto Engineers and Contractors,  Defendant No.3 through their agents.  Then Robert D’ Souza filed  a regular suit in the court of the Civil Judge, Junior Division,  Panjim   and prayed that the defendants and their agents should  be restrained by perpetual injunction from interfering  in any  manner  with the possession of the plaintiff and his brothers   in respect of the suit property and they be restrained from  proceeding with the works of construction in the suit property   and to return the suit property in its original condition. The  defendants filed their written statement and resisted the suit.  Thereafter during the pendency of the suit the plaintiff died  and respondents l to 7 were brought on record as legal  representatives of the deceased plaintiff. On 5.12.1998, learned  Civil Judge, Junior Division, Panjim decreed the suit  restraining the defendants by perpetual injunction from  interfering with the possession of  the plaintiffs in respect of

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the suit property  and from proceeding  with the work of  construction. Learned Civil Judge, Junior Division further  directed the defendants to restore the suit property in its  previous condition by filling up the foundation trenches and  removing anything done in the suit property. Thereafter a  regular civil appeal being Regular Civil Appeal No.1 of 1999 was  filed in the Court of Additional District Judge, Panaji. Learned  Additional District Judge by order dated 10.4.2000 allowed the  appeal filed by the appellants  and dismissed the suit.  Thereafter, respondent Nos. 1 to 7 filed a second appeal being  Second Appeal No.55 of 2000 in the High Court of Bombay at Goa.  Learned Single Judge of the High Court framed the following  questions of law:

               (i)     Whether the District Judge erred in dismissing  and/or rejecting the claim of the plaintiffs for permanent  injunction on the ground that from the plaint it could be  inferred that the plaintiffs had admitted loss of possession of  the suit property in favour of the defendants/ respondents ?"

Learned Single Judge after considering the matter allowed the  second appeal and set aside the order passed by the first  appellate court and confirmed the decree of the trial court.  Hence the present appeal. 3.              We have heard learned counsel for the parties and  perused the record. Learned Single Judge after examining the  matter found that in fact on the date  Aguair came to know that  the defendant Nos. 1 & 2 had induced the defendant No.3 to  believe that they were  the owners and possessors of the suit  property and that on such a condition the defendant No.3 entered  into an agreement with Defendant Nos.1 & 2 whereby the defendant  Nos.1 & 2 had promised  to sell the suit property to defendant  No.3 and who was allowed to construct the building consisting of  flats in the suit property and Aguair also came to know that on   1.9.1979 a deed of justification  was recorded by the Registrar\026 cum-Sub Registrar and Notary, ex- Officio Ilhas, Goa wherein it  was falsely declared that Defendant No.1 was the owner and was  in possession with exclusion of any other persons  of the suit  property  and had possessed the suit property for more than 30  years.  On further query he came to know  that the defendant  No.1 managed to get the suit property registered  in the records  of the land revenue office in her name and thereafter they got  the plan for construction sanction approved by the Panaji  Municipality.  But when Aguair raised objection then defendant  No.3 stopped construction work for four days and thereafter he  again started the work by placing the steel reinforcement for  casting footing. Therefore, the plaintiff apprehended that they  would proceed with  further construction and therefore, the  plaintiff was constrained to file the suit. Therefore, on that  basis it was submitted  before the learned Single Judge of the  High Court   that from these facts it was more than apparent  that the plaintiff lost the possession. Therefore, at the  relevant time the plaintiff was not in possession of the suit  property. As such, there was no cause for filing the suit for  permanent injunction. Learned Single Judge after considering the  matter found that these averments did not constitute  the basis  on the part of the plaintiff that he was not in possession of  the suit property. On the contrary, learned Single Judge found  in reply to paragraph 13 of the plaint, the defendants in their  written statement admitted that the work was stopped by the  defendant No.1 for some time but they restarted the work again.   This, according to learned Single Judge was a proof of the fact  that the Defendant Nos.1 & 2 and Defendant No.3 were not sure  about the possession and right of the defendant Nos.1 & 2 over  the property. In fact, what it transpires from all these facts

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that the trial court reached the same conclusion as the learned  Single Judge in second appeal in High Court. It is true normally  in the second appeal the High Court should not interfere on the  questions of fact. But if on the scrutiny of the evidence it is  found that the finding recorded by first appellate court is  totally perverse then certainly the High Court can interfere in  the matter as it constitutes the question of law. In the given  facts it is more than apparent that the plaintiffs who are  claiming the right over the property by way of prescription but  that has been denied by the plaintiffs that they were the owners  of the property and it was being looked after by Aguair and in  absence of Aguair the defendants  registered the deed of  justification and on that basis they claimed the right over the  property. But when the original owner protested  to the so  called deed of justification, then the construction work was  also stopped for some time. This goes to show that the  defendants were not sure of their possession as well as their  title over the suit property by way of adverse possession. In  these circumstances, the trial court granted injunction but the  first appellate court wrongly reversed it without adverting to  the finding of the trial court.  The said finding of the first  appellate court was set aside by the High Court in second  appeal. Therefore, in these facts and circumstances of the case,  we are of opinion that the view taken by the learned Single  Judge of the High Court in second appeal appears to be just and  proper and there is no ground to interfere with the same.  Consequently, the appeal is dismissed with no order as to costs.