Herald D''Lima and Others vs Walter D''Souza

Ravi V. Malimath, J.—The case of the plaintiff is that her husband acquired the plaint ''A'' schedule property in the registered partition deed dated 31.03.1953, entered into between himself and his brother Marcel D''Lima, who has been in exclusive possession and enjoyment of the land described as ''C'' schedule property. After the death of Francis D''Lima, the plaintiff and her children succeeded to the plaint ''A'' schedule and they are in possession and enjoyment of the same. The property described as ''D'' schedule property was allotted to the brother of the husband of the plaintiff namely, Marcell D''Lima and he was in possession and enjoyment of the same. It abuts ''A'' schedule property.

In 1983, Marcell D''Lima, the brother of the husband of the plaintiff sold the above property in favour of the defendant. The property purchased by the defendant is subject to all the reservations and condition as set-out in the partition deed. That there is a common Well in the property allotted to Marcell D''Lima and the right to draw water from the said Well is reserved to all the sharers. The plaintiff has been drawing water from the said Well for domestic and other purposes. There is a passage to reach the said Well. The roofs of the buildings belonging to the plaintiff and Marcell D''Lima were extending to one another''s property and due provisions were made to enjoy the building without making any alteration.

The defendant after purchase has been raising a boundary dispute with the plaintiff and attempting to put up a compound wall across the ''A'' schedule and he is preventing the plaintiff from plucking coconuts from the standing coconut trees. That even on a police compliant being lodged, no action was taken. Hence, the instant suit was filed seeking for a decree of permanent injunction to restrain the defendant from trespassing into or interfering in the peaceful possession and enjoyment of the ''A'' schedule and to restrain the defendant from encroaching into ''A'' schedule property by constructing a wall or removing the portion of the roofs of the building situated in the suit property and preventing the defendant from restraining the plaintiffs from drawing and using water from the common Well, as well as plucking and removing coconuts from the trees therein and from blocking the passage to reach the Well, etc. as well as for mandatory injunction directing the defendant to remove laterite stone wall put up by the defendant after the suit inside the ''A'' schedule property and consequent reliefs.

On service of summons, the defendant entered appearance and denied the suit averments. That the defendant has never obstructed to the usage of the Well or plucking of the coconuts, so far as those mentioned in the partition deed is concerned. That there is no dispute with regard to the ownership of the plaintiff''s property. That the defendant has never attempted to interfere with the plaintiff''s possession. Hence, he sought for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues and additional issues for consideration:

"1. Whether the plaintiff proves his lawful possession over the plaint ''A'' schedule property as on the date of suit?

Whether the plaintiff proves the interference by the defendant as alleged in the plaint?

3 Whether the plaintiff proves the tortuous acts of the defendant as alleged?

Whether the plaintiff is entitled for the reliefs sought?

What order and decree?

Additional Issues

The power of attorney holder and the son of the plaintiff was examined as PW-1 and 22 documents were marked. The defendant was examined as DW-1 and six documents were marked. The Court Commissioner submitted a report vide Exhibit-C1. The Surveyor was examined as CW-1, and four documents were marked as Exhibits-C1 to C4. Issue No. 1 and the additional issue No. 3 were held in the affirmative. Rest of the issues were held in the negative. The suit was dismissed. Aggrieved by the same, the plaintiff filed an appeal, which was also dismissed. Hence, the present appeal.

By the order dated 06.01.2012, the appeal was admitted to consider the following substantial question of law:

"Whether the courts below were justified in dismissing the suit without considering the material facts recorded in the registered partition deed dated 31.03.1953, Exhibit-P1?" 8. On considering the material and evidence on record, it is apparent that there is no real contest between the parties. The defendant admits to the right of the plaintiff for using the Well situated in the ''D'' schedule to the partition deed which has been purchased by the defendant. In fact, even in the written statement the defendant contends that they have never objected to the plaintiff from using the Well or from plucking the coconut from the two trees as mentioned in ''D'' schedule to the partition deed.

So far as the mandatory injunction is concerned, it is contended that the wall that is put up by the plaintiff is on their property. That the wall has been put up by replacing the old wall. The construction of the wall does not hamper the right of the plaintiff in either using the common well or from plucking the coconuts. Therefore, in the absence of plea that there has been any interference by the defendant, the trial court has rightly dismissed the suit herein. When the defendant therein does not dispute the plea of the plaintiff either in the written statement or in the evidence, the plaintiff has therefore failed to show that there is any interference by the defendants. Under these circumstances, based on the averments as well as the evidence recorded by both the courts below, the substantial question of law is answered by holding that both the courts below were justified in dismissing the suit of the plaintiff on considering the registered partition deed dated 31.03.1953, vide Exhibit-P1.

On answering the substantial question of law, it is needless to reiterate the fact that since there is no interference by the defendants, the plaintiff has always the right under law to use the common well as well as to pluck coconuts from the two coconut trees in terms of the schedule ''D'' of the partition deed and by using the passage in order to reach the Well, as well as the two coconut trees. The appeal is disposed off accordingly.