Shri Antonio D''Souza vs Shri Armindo Augusto Andrade

F.M. Reis, J.—Heard Shri Pangam, learned Counsel appearing for the Appellant and Shri Ramani, learned Counsel appearing for the Respondent. The above Second Appeal has been admitted by this Court by Order dated 11.03.2004, on the following substantial questions of law:

(1) Whether, a suit for Permanent Injunction is at all maintainable against the agent (Power of Attorney) without joining the principal, in as much as in the present suit, the name of Smt. Fatima Bi Shaikh Yakub, has been recorded in the Survey Record and the suit is filed against the appellant herein who is the Power of Attorney of said Fatima Bi Shaikh Sakub

(2) Whether, in view of presumption arising from Section 105 of the Land Revenue Code, Permanent Injunction could have been granted, without giving findings about the factual possession to rebut such presumption

Shri Pangam, learned Counsel, appearing for the Appellant, has assailed the impugned Judgment passed by the Lower Appellate Court essentially on the ground that the Appellant was duly constituted Attorney of Smt. Fatima Bi and that a suit against the Appellant could not have been filed when said Fatima Bi was not a party to such proceedings. Shri Pangam, learned Counsel, has further taken me through the evidence of Pw.1 and pointed out that Pw.1, himself, has admitted that prior to the filing of the suit, a complaint was lodged by Pw.1 to the Municipal. Learned Counsel further pointed out that pursuant to a Power of Attorney executed by the said Fatima Bi and thereafter the Appellant was entrusted with the maintenance of the suit property and, according to him, all the activity carried out by the Appellant was on behalf of the said Fatima. The learned Counsel further pointed out that the Respondent has also failed to identify the suit plot and, as such, the question of granting any permanent injunction as against the Appellant without such identification cannot be accepted. Learned Counsel further pointed out the findings of the learned Trial Judge whilst disposing the suit filed by the Respondent wherein the learned Judge has come to the conclusion that the Respondent has failed to identify the property granted to the ancestors of the Respondent by the Alvara executed by the then Government and that the area which is alleged to have been resumed in favour of the ancestor of the Respondent, has not been properly identified. Learned Counsel has taken me through the plan on record and pointed out that the plan itself discloses that the suit property claimed by the Respondent does not correspond to the area allegedly resumed in favour of the ancestors of the Respondent. Learned Counsel further pointed out that considering the fact that the Respondent has admitted that the encroachment was carried out by the said Fatima Bi, by obtaining a relief against the Appellant, it would in other words effect the rights of the said Fatima Bi over the suit plot. Learned Counsel further pointed out that the said Fatima Bi is in possession of the suit plot and, as such, the question of granting any permanent injunction in favour of the Respondent does not arise at all.

With regard to the second substantial question of law framed by this Court, learned Counsel Shri Pangam, appearing for the Appellants, has pointed out that on perusal of the Survey Records, the name of the Respondent does not figure and, as such, there can be no presumption in favour of the Respondents on the basis of such entry. Learned Counsel further pointed out that on going through the Survey Records in respect of the property surveyed under no. 64/1 in the other rights column, the name of Fatima Bi is also shown which itself discloses that the Respondent is not in possession of the suit plot. Learned Counsel further pointed out that having failed to establish the actual possession of the suit plot, the Respondent was not entitled for any injunction in his favour as against the Appellant. Learned Counsel further pointed out that on perusal of the examination of the Surveyor, Shri Gonsalves, Pw.4, itself discloses that the depiction carried out by the said Shri Gonsalves in respect of an area of 16600 square metres claimed to be the area which has been resumed by the State Government, would show that some of the survey numbers corresponding to the said area did not stand in the name of the Respondent which establishes that the Respondent is not in possession of the area allegedly resumed in their favour admeasuring 16600 square metres. Learned Counsel further pointed out that as the records stand in the name of the State Government, there is no presumption in favour of Respondent of possession and, as such, the Lower Appellate Court was not justified to come to the conclusion that the Respondent was in possession of the disputed plot. Learned Counsel further pointed out that whilst deciding the issue nos. 4 and 5, the learned Trial Judge has answered the issues against the Appellant but, however, when the finding on such issues were assailed before the Lower Appellate Court, the learned Judge did not give an opportunity to the Appellant to as sail such findings on a spacious ground that the Appellant had not filed any Cross Objections. The learned Counsel further pointed out that it is well settled by the Apex Court that finding by the Trial Court against the successive party, can always be challenged before the Appellate Court without filing any Cross Objections. In support of his contention, the learned Counsel has relied upon the Judgment of the Apex Court reported in Shri Ravinder Kumar Sharma Vs. The State of Assam and Others, ., Learned Counsel as such submits that both the substantial questions of law framed by this Court are to be answered in favour of the Appellant.

On the other hand, Shri Ramani, learned Counsel appearing for the Respondent, has supported the impugned Judgment. The learned Counsel dealing with the contention of Shri Pangam, learned Counsel appearing for the Appellants, that the Lower Appellate Court had not permitted the Appellant to assail the findings against them arrived by the learned Trial Judge, has pointed out that on perusal of the impugned Judgment passed by the Lower Appellate Court, one cannot find any such submission advanced before the Lower Appellate Court. Learned Counsel further pointed out that having failed to advance any such submission, it is not open to the Appellant to raise such grievance before this Court. Learned Counsel has taken me through the findings of the learned Trial Judge on issue no. 5 and pointed out that the learned Trial Judge while appreciating the evidence on record has come to the conclusion that the alleged principal of the Appellant is one Fatima Bi Shaikh Yacub whereas the person in whose name the property is surveyed under no. 64/2 is one Fatima Bi Ahmed Khan whereas the name figuring in the Survey Plan in the other rights column is one Fatima Bi and that the learned Trial Judge has come to the conclusion that the Power of Attorney claimed to have been executed in favour of the Appellant is a fake Power of Attorney. Learned Counsel further pointed out that whilst deciding issue nos. 4 and 5, the learned Trial Judge has come to the conclusion that there is no evidence to establish that the said Fatima Bi had any right to the suit plot. Learned Counsel pointed out that relief which has been granted is only for permanent injunction and, considering that the Appellant has not disputed that he had carried out such activity in the suit property though claiming that they were on behalf of one Fatima Bi by itself does not disentitle the Respondent to seek a permanent injunction against the Appellant. Learned Counsel further pointed out that the Respondent has established by evidence on record that an area of 16600 square metres was resumed in favour of the ancestors of the Respondent and that the suit plot forms part and parcel of the said area. Learned Counsel pointed out that the learned Judge has erroneously come to the conclusion that the property has not been identified when, on the basis of the expert Surveyor examined by the Respondent, being Pw.4, the suit plot has been correctly identified. Learned Counsel further pointed out that the boundaries as shown in the plan by Pw.4, which is at exhibit Pw.4/H collectively, clearly depicted the suit plot and the boundaries shown therein correspond to the boundaries as disclosed in the plaint of the Respondent. Learned Counsel points out that the Appellant has failed to establish any right to the suit plot and, as such, there is no reason for any interference in the Judgment passed by the Lower Appellate Court. Learned Counsel as such submits that both the substantial questions of law framed by this Court are to be answered in the favour of the Respondent and the Appeal preferred by the Appellant be dismissed.

Before going through the rival contentions in support of the substantial questions of law framed by this Court, it would be appropriate to state in brief the facts which forced the Respondent to file the present suit. It is the case of the Respondent that he is one of the heirs of late Luis Manuel Andrade, who expired on 04.11.1949. It is further his case that the suit plot which is subject matter of the present suit, as described by the Respondent in the suit is part of the property surveyed under no. 64/1 of Village Massordem, of Sattari Taluka bounded towards the east by the compound wall of the plot bearing survey no. 64/3 belonging to Dantye, towards the west by the Municipal road, towards the north by the remaining part of survey no. 64/A, where there is a house of Arjun Kankubkar and towards the south by the property surveyed under no. 64/2 in possession of Fatima Bi Ahmed Khan. It is further their case that part of the said property bears survey no. 64/1 of the said Village was assigned by the erstwhile Government by Deed of Assignment dated 25.06.1930 to late Luis Manuel de Andrade and the land was admeasuring an area of 12 hectares 8192 square metres as an emphyteusis in favour of the said ancestors. It is further their contention that said Luis Andrade expired in the year 1949 leaving three sons and four daughters and that the Respondent being one son of the said Luis Andrade. According to the Respondent, by Order dated 01.06.1668, the said plot was reverted back to the Government but on the representations made by the Respondent and other heirs of Luis Andrade by order dated 06.04.1977, an area of 16600 square metres was excluded from the reversion as the same had been brought under cultivation by the heirs of the assignee. It is further their case that out of this area, the suit plot is a portion of the said excluded area. The Respondent further contend that the Appellant had encroached into the said suit plot on 12.07.1993 without any right and put barbed wire fencing with R.C.C. Poles on the western boundary of the suit plot and forcibly planted some banana trees and coconut sapplings. The Respondent lodged complaint on 13.07.1993 as also a complaint to the Municipal Council. According to the Respondent, he is in possession of the suit plot and that the Appellant is mere trespasser. Accordingly, the suit came to be filed for a declaration of title as well as a permanent injunction against the Appellant.

The Appellant resisted the suit by filing his written statement and, inter alia, contended that the suit was bad for non-joinder of Government as party being a suit for declaration. It is further his case that the suit plot admeasuring 1250 square metres is being occupied by Smt. Fatima Bi Shaik Yakub prior to the making of the Municipal road towards the western side and the present area of the suit plot is 935 square metres bounded towards the east by laterite stone compound wall of the plot bearing survey no. 64/3 belonging to Smt. Shubhangui Gajanan Morazkar after which is the plot of Dantye, towards north by fencing and the house of Arjun Kankubkar, towards the south by plot of Fatima Bi Ahmed Khan bearing survey no. 64/2 and towards the west by the said western road. It is his case that this suit plot is in possession of Fatima Bi for last more than 30 years and it is not a vacant plot. It is his case that Fatima Bi had fixed barbed wire fencing with RCC poles in the suit plot and, therefore, claimed that the Respondent has no right, title and possession to the suit plot. Accordingly, it was his contention that the suit deserves to be dismissed.

The learned Civil Judge, Junior Division at Valpoi, after framing the issues and recording of evidence by Judgment and Decree dated 31.12.2001, dismissed the suit filed by the Respondent. Whilst disposing of the said suit, the learned Judge came to the conclusion that the Respondent failed to prove that he is in possession of the suit plot by virtue of the perpetual lease as claimed by the Respondent. The learned Judge further came to the conclusion that the suit is bad for non joinder of the Government as a party. The learned Judge further came to the conclusion on appreciation of evidence that the Appellant has failed to prove that the suit plot is bounded as per the boundaries given at para 7 of the written statement. The learned Judge further came to the conclusion that the Appellant has failed to prove that he is in possession and looking after the said plot on behalf of said Fatima Bi Shaik Yakub as her attorney. Being aggrieved by the said Judgment and Decree, the Respondent preferred an Appeal before the learned District Judge, North Goa, Panaji, which by Judgment and Decree dated 01.10.2003 was partly allowed and the impugned Judgment and Decree passed by the learned Trial Judge was quashed and set aside and the suit filed by the Appellant was partly decree restraining the Appellant, his agents servants and family members by perpetual injunction from interfering with the possession of the suit plot.

Dealing with the first substantial question of law framed by this Court, it is not in dispute that on the basis of the material on record both the Courts below have come to the conclusion that the Appellant has failed to establish that the said Fatima Bi Shaik Yakub had any right to the suit plot. The learned Trial Judge whilst deciding issue no. 5 has come to the conclusion that the Appellant has failed to establish by any cogent evidence the fact that the said Fatima Bi Shaik Yakub had any right to the suit plot. The Lower Appellate Court whilst re-assessing the evidence on record has also come to the conclusion that the material produced by the Respondent established that the suit plot forms part and parcel of the property which was resumed in favour of the said Luis Andrade in the year 1977. Apart from that, the learned Trial Judge whilst assessing the evidence on record has found that the Power of Attorney on the basis of which the Appellant is claiming to be an Attorney Holder of the said Fatima Bi is a fake document. Apart from that, on perusal of the Judgment passed by the Lower Appellate Court, I find no submission was advanced by the Appellant to the effect that the Appellant wanted to challenge the said findings of the learned Trial Judge. In any event, considering that the evidence on record does not establish that the said Fatima Bi Shaikh Yakub had any right to the suit plot, nor the learned Counsel appearing for the Appellant was in a position to point out any piece of evidence adduced by the Appellant to that effect, I find that the Courts below have not committed any error in coming to the conclusion that the said Fatima Bi had no right to the suit plot. Besides that, considering the relief granted in favour of the Respondent is only for permanent injunction and taking note of the fact that the Appellant is not claiming any independent right to the suit plot, I find no justification to accept the contention of Shri Pangam, learned Counsel appearing for the Appellant, that a permanent injunction cannot be granted against the Appellant without making said Fatima Bi as a party to the suit. Taking note of the fact that the Appellant has failed to establish any independent right to the suit plot, nor any right in favour of the principal on whose behalf the Appellant claimed to be entitled to the suit plot, I find that a suit for permanent injunction can always be filed against a person who is interfering with the possession of a person claiming to be the owner thereof. In the present case, the Respondent is claiming to be owner of the property in view of the emphyteusis granted in favour of the ancestor Shri Luis Andrade and upon his death, the right devolved upon the Respondent besides the other co-heirs. The Lower Appellate Court has assessed the evidence on record and on the basis of the material on record has categorically come to the conclusion that the Respondent has established his title over the suit plot. Hence, the contention of Shri Pangam, learned Counsel appearing for the Appellant, to the effect that the suit is bad as said Fatima Bi was not made a party to the proceedings cannot be accepted. The relief as granted of permanent injunction would not effect Fatima Bi Shaikh Yakub if at all she has any claim to the suit plot. Hence, the first substantial question of law is answered against the Appellant.

Dealing with the second substantial question of law framed by this Court, on perusal of the Survey Records which are at exhibit Pw.1/E, the names shown in the occupant column is of the Government and in the other rights column, there is a name figuring of Fatima Bi being a person who has been allotted by one Alim Bi. On perusal of the said Survey Records, I find that there can be no presumption of possession drawn either in favour of the Appellant or the said Fatima Bi Shaik Yakub. There is no evidence on record to establish that the alleged principal of Appellant namely Fatima Bi Shaik Yakub, is the same person whose name figures in the other rights column. Apart from that, on minute examination of the Survey Records, it appears that the entry in favour of Fatima Bi is in respect of some portion of the house granted by Alima Bi. Identity of said Alim Bi has not been established by the Appellant. Hence, on the basis of such entry, I find that no presumption can be drawn in favour of the Appellant nor in favour of his principal Fatima Bi Shaik Yakub. Apart from that, on perusal of Exhibit Pw.1/F, an Order was passed by the Collector of Goa, dated April, 1977, inter alia, holding that Shri Luis Manuel Andrade who is ancestor of the Respondent, had brought under cultivation a portion of the land admeasuring 16600 square metres which forms part of the land assigned to him before the date of the Order of reversion. Hence, the said area of 16600 square metres was ordered to be resumed in favour of the Respondent and other legal heirs of Luis Manuel Andrade This Order passed by the Collector at exhibit Pw.1/F disclose that there was some cultivation carried out in the area of the property which has been resumed in favour of the Respondent and the other heirs of the said Luis Andrade. The learned Lower Appellate Court while appreciating the evidence on record, has come to the conclusion that on the basis of the material adduced by the Respondent, that the suit plot forms part of the area which has been resumed pursuant to the said Order passed by the learned Collector. It is not in dispute that the said Order has not been challenged by any person. Hence, the entry in the Survey Records in favour of the Government to the extent of the claim of the Respondents in the present suit stands rebutted on the basis of the said Order and the other evidence adduced by the Respondent considered by the Lower Appellate Court whilst passing the impugned Judgment. Hence, taking note of the fact that the Appellant has failed to establish that he was in possession of the suit plot and in view of the fact that the Respondent has adduced evidence to establish that the suit plot forms part of the area which has been resumed in favour of the Respondent, I find that the Lower Appellate Court was justified to come to the conclusion that the Respondent has established his claim as far as the suit plot is concerned and granted an injunction as prayed for by the Respondent. It is to be noted that the Appellant has failed to establish any title to the suit plot. It is well settled that when two persons are claiming to be in possession of a property, the person is entitled to be in possession would always be entitled to protect his possession against a person who has no right to be in possession. In the present case, taking note of the fact that the Appellant has failed to establish their right to the disputed portion and, on the contrary, as the Respondent has established his claim to the suit plot, I find that the Lower Appellate Court was justified to pass the impugned Judgment and grant the relief of injunction in favour of the Respondent. Hence, the second substantial question of law is also answered against the Appellant. In view of the above, I find no merit in the above Second Appeal which stands accordingly dismissed.