Mr. Nicolau Rosario Goes, Senior Citizen, Through his duly constituted Power of Attorney Mr. Joquim Goes vs Mr. Joaquim Manuel Ires Gomes

F.M. Reis, J.—Heard the Learned Counsel for the Appellant and the Respondent. The above appeal challenges the Judgment and Decree 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.

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 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 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.

The Respondent has filed his written statement disputing the claim of the appellant by filing their written statement and denied that the appellant was enjoying the dwelling house in the suit property. It is further his contention that the appellant is residing as a rent paying tenant in the premises owned and possessed by the respondent. It was denied that there was any erroneous entry in the survey record and consequently prayed that the suit be dismissed, as the Civil Court has no jurisdiction to entertain the suit.

The learned Civil Judge, Junior Division at Margao after examining the Attorney of the appellant dismissed the suit filed by the appellant. The learned Judge held that the Plaintiff was occupying the suit house but did not decide in what capacity. The contention of the appellant of adverse possession was rejected. The learned Judge further held that the Appellant was taking totally inconsistent stand from the pleadings by taking the plea of mundkarship which was never taken in the plaint. Being aggrieved by the Judgment and Decree passed by the learned Civil Judge, Junior Division, an appeal came to be preferred before the learned District Judge being Regular Civil Suit No. 15 of 2009, which came to be dismissed by Judgment and Decree dated 24th July, 2009. Being aggrieved by the said Judgment and Decree, the present appeal has been filed.

On perusal of the impugned Judgment, I find that the learned District Judge relying upon the Judgment of this Court reported in 2005 (1) Goa Law Reporter 47 came to the conclusion that the reliefs claimed by the appellant could not be granted. The learned District Judge further found totally contrary stand being taken by the Appellant before the Mamladar which proceedings filed by him came to be dismissed.

The reliefs claimed by the appellant is for the correction of the survey records. In 2004 (3) All Maharashtra Reporter 880, this Court held that it is the jurisdiction assigned to the revenue authorities under the Land Revenue Code to issue direction for making or deleting entries in the Record of Rights. A proper relief which the party could pray was for a declaration of his title or right to the suit land. Once such declaration was obtained, the Revenue authorities can be made to correct the entries accordingly. In the present case, the appellant has sought for the relief to direct the Revenue authorities to delete or to alter the Revenue records. There is no prayer for declaration of an right of the appellant. This Court in the decision reported in 2005 (1) Goa Law Reporter 47, has held that Section 97 of the Goa Land Revenue Code, 1968 clearly stipulates that the revenue entries made in the records of rights are required to be corrected by the Mamlatdar. It was further held that it was therefore necessary for the trial Court to leave the issue of removing the name of the defendant no.1 from the possession/occupation column to the Talathi, on an application to be submitted by the plaintiff on the basis of a decree. In view of the said judgment of this Court, I find that the appellant is not entitled to claim the reliefs claimed in the present suit. There is no relief for declaration sought by the Appellant. The Courts below as such, were justified in dismissing the suits filed by the appellant. The claim of adverse possession sought to be raised by the Appellant was rejected by both the Courts below on the basis of the records. Both the Courts concurrently held on the basis of the evidence on record that the appellant failed to establish any right as claimed by him in the suit property. As such, no interference is called for in the findings of the Courts below to the effect that the appellant is not entitled to any relief claimed in the suit. This Court cannot re-appreciate the evidence in a second appeal. No perversity has been shown by the learned Counsel of the Appellant in the findings of the Courts below. There is no substantial question of law which arises in the present appeal and, as such, the appeal stands dismissed.