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Judgment
S.C. Dharmadhikari, J.—Second Appeal No. 26/2001 is directed against the Judgment and Decree in Regular Civil Appeal No. 59/1987, passed by the Addl. District Judge, Margao dated 15th September, 2000. The appellant before me Thomas Rodrigues, is the original defendant No.1/appellant in Regular Civil Appeal No.59/87. He is the original defendant No.1 in Regular Civil Suit No. 12/1969.
That suit was filed by the plaintiff Romano Luis Fernandes, who is now deceased and represented by his heirs and legal representatives, praying that a decree be passed requiring the defendants to the suit to quit vacate and deliver the quiet and peaceful possession of the portion of the property, after demolishing the pig house and latrine and removing the materials thereof and rendering the land underneath to its original position. A permanent injunction, restraining the defendants, their servants and/or agents from entering upon or being upon the said portion marked with red lines bearing letter B in the plan of the plaintiff''s said property or any portion thereof, had also been claimed.
The plaint proceeds on the basis that the deceased Romano Fernandes was the owner in possession and enjoyment of a fraction or parcel of land being 3/4th of 1/64th of the property known as "Mussonem" situate at Assolda. The said fraction is registered in the books of Sub-Registrar, Quepem under No.24341. The said fraction consists of 44 canteiras, of which 15 consist of paddy field, which go from east to west and rest are on the southern side slope of Mordi, wherein there is a residential house and some fruit bearing trees. The plaintiff has, in his possession, title deeds in respect of the said property. It is then stated that the balance 29 canteiros, from out of 44 canteiros, are connected with one another and together form contiguous whole piece of land. The plaintiff''s house is situated beyond the portion of the land, but nearby the same, in a different piece of land. The land thus formed of 29 canteiros together, is referred to as "the said property".
It is stated that the defendants are residing in a house situated in the property belonging to one Shiva Putu Raut Dessai, adjoining the plaintiff''s said property, having a common boundary on the western side.
It is alleged that somewhere in the beginning of the second half of the year 1964, the defendants trespassed on a portion of the property of the plaintiff and constructed unauthorisedly and without the knowledge and consent of the plaintiff, a latrine and a pig house, thereby covering an area of the plaintiff''s property, admeasuring about 50 sq. metres. That portion is delineated in red and shown by letter "B" in the site plan of the said property. As a result of the use of the latrine, the waste flows into the paddy field of the plaintiff, thereby compelling the plaintiff to leave a certain portion of the field fallow on account of the unhygienic conditions. On account of this non-use, the plaintiff is put to unnecessary loss.
On a number of occasions, the plaintiff asked the defendants to remove the said latrine and pig house from his property, but they gave promises and prayed for some time. Since they did not demolish the unauthorised structures, an Advocate''s notice was sent on 22nd February, 1968 and despite receipt of the same, the defendant No.1/appellant before me, refused to vacate and remove the latrine and the pig house, as is evident by his letter dated 11th March, 1968. After reciting that the plaintiff has right in the property and the defendants have no right, title or interest therein or any portion thereof, what is prayed is that the suit be decreed, as the claim of the plaintiff is not barred by Law of Limitation. This suit is filed on 21st April, 1969 in the Court of Civil Judge, Senior Division, Quepem and was registered as Civil Suit No.12 of 1969.
On receipt of suit summons, a written statement was filed by the first defendant.
He also filed a regular civil suit in the very Court being Regular Civil Suit No.20/1971 against the plaintiff in Regular Civil Suit No.12/1969, alleging that there is at Assolda vast landed property called "Musdem", "Mussonem" or ''Mussodem" which spreads from the top of the hillock upto the paddy fields underneath, and which is intercepted by Asolda-Quepem road. This property is registered in the Quepem Land Registration Office under No.796 at page 94 of Book B 5 and enrolled in the Land Revenue (matriz) under No.13 and is bounded on the east by water shade and paddy field of Dormu and other "farazes", on the west by the hedge-row (bund) of coconut trees of Mussonem of Visva Custa Rauto Dessai, Govinda Rauto, Rama Rauto, Govind Malapa Rauto, Martinho Antao and others, on the north by the paddy field Morco of the Temple of Shri Mhalsa of Mardol and paddy field Pingally Moroda of Romualdo Antao and others, and on the south by water shade (aguas vertentos).
This property, which is described in the plaint of the suit filed by the present appellant, originally belonged to the family of Rauto Desai of Assolda, which family has, over the decades, multiplied itself into several branches or new families, each one of which is enjoying a particular portion or portions of the said property against their shares and there is no partition. One Moturem Desai (deceased) was the daughter of the family of Rauto Desai, married to Vencu Purxotoma Porobo Desai of Cotombi and she was entitled to a part or share in the said property enjoyed by her parents'' family.
By an "Escritura" dated 15.12.1951, the said Vencu and Moturem sold to the plaintiff in Civil Suit No. 12 of 1969 and in this suit, defendant Romano 3/4 of 1/64 of the said property Musdem. This escritura is relied upon by the plaintiff/appellant before me. It is stated that in the said escritura, it is falsely stated that the entire property is not registered, and that is sought to be supported by a certificate issued by the Registration Office on the basis of slightly changed boundaries. However, the said Vencu and Moturem expressly stated in the escritura that the fraction sold to the said Romano is the same in which the residential house built by the defendant as a mundkar is situate.
Similarly, one Ganesh Desai was also enjoying another part of the property Mussodem, which part is situated to the south of the said Assolda-Quepem road and wherein there exists the old residential house of the plaintiff and his family, rebuilt by his father 10 years ago. On the death of said Ganesh, there were inventory proceedings filed in the Quepem Civil Court, details of which are mentioned and it is stated that the said part of the entire property, described as 1/128, 1/8, of 1/2 of the whole property, was allotted to his widow Radha Ganesh Rauto Dessai, against her moiety by the final judgment and decree of the Court being dated 9th December, 1964. This property is sloppy land, mostly it was brought under cultivation to a considerable extent by the late father of the appellant herein with the permission of the owner Rauto Desai. After death of the plaintiff''s father, only his widow remained permanently in the house, as an adult person, since the plaintiff and his elder brother where most of the time far away, namely at Margao where the plaintiff is in his business and his other brothers are on board of the ship or at Verna in Salcete Taluka.
Taking advantage of this fact, the defendant in the suit began interfering in the suit property enjoyed by the family of Ganesh Rauto Dessai in the absence of the male members of the plaintiff. Frequent quarrels took place, as a result of which proceedings u/s 145 Cr.P.C. came to be initiated in the Court of Sub-Divisional Magistrate, Margao where it was incidentally declared that the defendant is in possession of the land, more or less the same as the suit property. A revision was filed against the order of the S.D.M. which, was at that time pending in the Court of Sessions, Panaji. What is then stated is that by a Sale Deed dated 18th November, 1970, registered under Sr. No.362 of 23.11.1970, in the Office of Quepem Sub-Registrar, the appellant purchased from said Rada Ganesh Rauto Desai, the suit property and said Vencu Puroxotoma Porobo Desai was one of the consenting parties to the sale made in favour of the appellant.
The said Romano is making capital of the Judgment and Decree, he got in some suit, but that does not bind the appellant herein. The documents that were relevant for the purpose of the present suit having not been produced in the proceedings u/s 145 Cr.P.C. and since the said Romano is interfering with the appellant''s right in the property, that this suit came to be filed for declaration that the plaintiff/appellant herein is the lawful owner of the suit property as described in the Sale Deed dated 18th November, 1970, admeasuring 4712.50 sq. metres and that permanent injunction be issued against the defendant Romano Fernandes, who is the plaintiff in the prior suit in terms of prayer clause (b) of the plaint.
Deceased Romano Luis Fernandes, who was the defendant to this suit, on receipt of summons, filed his written statement and while denying the other paragraphs, what he states in reference to para 1 of the plaint that it is substantially correct, but with clarification that the property Musnem is a vast property which consists of coconut grove, mainly situate on the western side and of a rice field having high level land, situated on the eastern side, the high level land lies on the north, south and east of the rice field. This high level land is partly cultivated by fruit bearing trees, including coconut trees, partly cultivated with morod type of rice and partly consists of uncultivated land. Assolda-Quepem road passes through the high level land. The land above or south of Assolda-Quepem road is commonly known as Mussonemordi.
What is stated in para 2 of the written statement is as under:
" 2. With reference to para 2 of the plaint the defendant states that it is not true that the whole property Musnem is registered in the Land Registration Office under No.796 as alleged. Only the eastern part of the property Musnem is registered under that number. Defendant further states that the properties situated on the south of this eastern portion is the watershed and property adjoining to it is known as Medeaculnem and on the east the property known as Borneagale besides the Compor of Farazes. The defendant submits that it is not true that the property registered under No.796 is enrolled under No.13 in the Land Revenue Office. The said Land Revenue No.13 comprises besides the property registered under No.796, the western part of the property Musnem which consists of bund planted - coconut and other big area of coconut plantation."
Upon these allegations and pointing out that the eastern portion of the entire property Musnem, is registered under No.796 and relying upon the escritura dated 15th December, 1951, what was stated is that the said Moturem as well as her ancestors enjoyed towards the share plots on the eastern part of the property Musnem, as well as on the western part. The said Moturem and her husband Vencu sold to Romano all the plots they enjoyed on the eastern part of the property Musnem. The said Romano submitted that the said Moturem and her ancestors enjoyed different plots in the eastern plot in the paddy field and in the high level land situated on the eastern, northern and southern side of the paddy field. Thereafter, it is submitted that one piece is on the high level and is situated on the southern side and on the south of the Assolda-Quepem road. This piece is bounded on the east by the plot of heirs of Shiva Loximona Rauto Dessai; on the west by plot of one Shankar Rama Raut Dessai which one Shri Srihari disputes as belonging to him; on the north by the Assolda Quepem road and on the south by the plot of the heirs of Xencora Loximona Raut Dessai.
It is then stated that the present heirs of Shiva Loximona Raut Dessai are one Crisna Shiva Raut Dessai and Rada Ganesh Raut Dessai and others, and the present heirs of said Xencora Loximona Raut Dessai are Essu Dhormu Raut, married and Xencora Xanu Raut Dessai (grandson) and Govinda Xanu Raut Dessai. This piece was cultivated and is still cultivated by moroda type of rice and consists of 29 beds. It was stated that other piece on the high level land is on the northern side and in this piece there lies the residential house of the defendant Romano Fernandes. The said Romano submitted that all the pieces in the eastern part of Musnem are being enjoyed for much more than 30 years by the said Romano and his predecessors-in-title which fact entitled the said Romano to ownership even by the title of prescription which was invoked by him.
With reference to para 6 of the plaint, it is stated that one Loximona Raut Dessai was owner of a share in the property Musnem. He enjoyed particular plots, both in the eastern part, as well as in the western part of the said property Musnem and he had four sons by names Vithoba, Xencora, Shiva and Vishnum. The present representative of Vitoba is the above mentioned Moturem, who sold her fraction to the defendant Romano. Said Xencora left behind grandsons Xencora and Govinda. Shiva had son by name Putu who had two sons Shiva and Ganesh and the latter was married to Radha. Said Vishnu left behind his grandsons Visvanath Dotu Raut and Caxinath Dotu Raut. All the plots belonging to said Loximona were subdivided amongst his aforesaid four sons, namely, Vithoba, Xencora, Shiva and Vishnu. The plot lying on the high level land on the southern side of the eastern part, as all other plots, were divided into four parts, out of which those allotted to Vithoba and Shiva were bounded by the boundaries set out in paragraph 6 of the written statement.
Thus, on the basis of the aforesaid assertion and while admitting that there were certificate of inventory proceedings, other averments made in plaint have been denied.
Upon written statement being filed in both the suits. Issues were framed. The trial of the suits was consolidated.
What has been referred through out is that Romano Luis Fernandes stepped into the witness box. He stated that he knows the property Mussonem, situate at Assolda. He has right of 3/4th of 1/64th in this property and he purchased it from Vencu Purxottom Dessai and his wife Moturem on 15.12.1951. He produced the sale deed, which was exhibited as Exhibit P.26. He deposed that there is a paddy field, a house and 44 beds. They are scattered at eight different places. Out of those, 29 beds lie from east to west. He then stated that they lie towards the south of the property. The said 29 beds are morod type. They are all together. They are enjoyed by him and they were enjoyed by him even before he purchased the property. Before he purchased the property, he was enjoying the said 29 beds as a tenant. He stated that the 29 beds are bounded as stated by him in the deposition and further stated that Shiva Putu died and at present his son Crishna is there. The areas of the said 29 beds, from north to south is 120 hands x east to west 71 hands. He deposed about the trees and plantation and then stated that in 1957 one Xencor Xanu alias Kushali interfered in his property and he instituted a suit in the Court and the property was handed over to him by the Court. The suit was decreed in his favour and the decree was confirmed by the Appellate Court.
In 1964, the defendant constructed one country W.C. and pigsty. A plan of the same was shown to him and marked for identification. He continued his deposition in Chief by stating that the area occupied by the latrine and the pigsty is about 50 sq. metres and previously that area was being cultivated by paddy. At present all the dirt of the latrine and pigsty accumulates there and therefore, it is not possible to cultivate it. Both the latrine and pigsty were constructed about 25 to 30 feet inside his property and he had told the defendant Thomas Rodrigues to remove the same. That is how he deposes consistent with his averments in the plaint in 1969 suit.
In the cross examination the Plaintiff Romano states that it is true that in the property purchased by him there is his house and he was a mundkar of it. He denied the suggestion that he has purchased an area of 1750 metrs. The property purchased by him is situated towards south of the road Assolda to Cotombi. Then, he admits that it is true that the property he purchased is the area around his house. But besides this area, he purchased also some other area of that property and it is spread over 8 places. He denies certain suggestion with regard to location of the portion, but admits that a suit was filed against Kushali Dessai and it was decided in his favour. He then admits that prior to institution of the 1969 suit, there was a house belonging to the defendant Thomas Rodrigues in the property Musnem, but denies the suggestion that the latrine and the pigsty were also there. He therefore, denies the suggestion that there is a previous pigsty and its remains are still there. Therefore, although it is possible that the defendant No.1 might have purchased the entire property Musnem in 1970, but his document is false. He then states that he has filed documents, along with plaint, including a plan which had been marked for identification and which was later on exhibited as Exhibit
The area of the plot mentioned in the plan is 1767.88 sq. metres. It is the property shown in the plan that he has purchased by Deed Exhibit P.26 dated 15.12.1951. Besides this property, he has purchased seven more properties. But he does not remember whether in the suit filed by him against Kushali Dessai, any evidence was led by Kushali. He states that he knows Vencu. But whether Vencu was cited as witness, he would not be able to say anything. Then he denies further suggestions. But, during the course of his cross examination he stated that the defendant purchased land from Radha Ganesh Raut Dessai and his house is situated about 150 metres away from the plaintiff''s house and between his house and the defendant''s house, there are several properties, including that of Raut Dessais. He, therefore, denies the suggestion that Vencu Dessai was entitled to an area of 1750 sq. metres only. Other suggestions were also denied.
The plaintiff then examined one Prabhakar Shiva Raut, and Sadashiv Shembu Raut Dessai who claim to be acquainted with the property. The plaintiff also examined one Gonba Putu Raut Dessai and one Francisco Vaz.
As far as the defendant is concerned, he stepped into the witness box. Appellant/defendant no.1 stated that he knew the disputed portion of land. He stated that the bath cum WC had been constructed at same place where there was an old bathroom cum WC and there was an old pigsty which was then in ruinous condition and which was belonging to them. This bath room is located in Moroda which his father had brought to cultivation about 25 years back. He sated that before that it was an open land, had a slope and at the end of which there is a road going to Avedem, Cotombi from Assolda. He stated that his father leveled the land by cutting the slope into benches and constructed about 50 beds on both sides. He stated that the residential house was constructed by his father after his marriage and at the time of his marriage, the house came to be extended in one side and the suit bath room came to be repaired at that time. After deposing about purchase of the property, he states that the plaintiff Romano has his house about 200 metres away from the defendant No.1''s/appellant''s house and situated on the other side of the road referred to by him. Between this road and the mordi where the plaintiff Romano has his house, there are other plots of land belonging to several other owners. The plaintiff purchased the land wherein there is a house situated of one Vencu Porobo, who is the son-in-law of the family of Raut Dessai and it is claimed by the plaintiff that the land purchased by him includes the morodo brought to cultivation by defendant No.1''s/appellant''s father. The said Vencu is still alive.
As the plaintiff Romano was harassing the family of the appellant/defendant No.1, at that time the said Vencu was approached by both, the appellant and one son of Radha. They inquired as to whether he had sold the said moroda belonging to the appellant, to the plaintiff Romano and he replied in the negative. He stated that he had sold only a portion of the land where the house of the plaintiff Romano is situate. He, thereafter, deposes about how there was some quarrel between the parties. It is stated that the appellant purchased the land from Radha and her son and after obtaining no objection from Kushali Raut Dessai and Vencu Porobo on the basis of a sale deed. Thereafter, he deposes that a suit is filed against the plaintiff Romano bearing No.20/1971 and that is pending. It is deposed by the appellant that he is aware by the suit which was filed by Kushali against the plaintiff and since Kushali had failed to lead his evidence, the case was decided ex parte. This Kushali is the same person who gave no objection and he is related to the husband of Radha. Once again the appellant/defendant No.1 deposes that the portion of land purchased by him is surrounded on all sides by a fencing wall which is very old. He deposes that there are also mango and jackfruit trees in the said land and some of them are planted by the appellant/defendant No.1.
In the cross examination, the appellant states that he cannot say whether the property Mussnem is a vast property. He states that he does not know the name of place where the plaintiff Romano stays. He does not know whether the western boundary of Mussnem is a coconut plantation. He does not know whether the eastern boundary of this coconut plantation is a paddy field. However, he admits that to the north of his house, there is a road Assolda-Cotombi. He admits that the road and at a lower level, there is a paddy field. To a suggestion that there is a mordi on each of the other 3 sides of the paddy field, he states that it is not true and there are only two mordis, one where the appellant/defendant No.1 is staying and the other where the plaintiff Ramano is staying. However, he admits that the said road is passing through the mordi and he is staying on the right side of the road and the plaintiff on the left side of the road. On the eastern side of the plot, there is another paddy field, which is on higher level and the mordi where the appellant stays is known as "Mussonem Mordi". He states that he does not know the boundaries of the entire property registered under No.796, but he knows the boundaries of the property belonging to him. He admits that in the deed of purchase, he has referred to his property as being registered under No.196. He states that he cannot give the boundaries of the property as per the enrollment in the Land Revenue Office and he does not know whether the property registered under No.796 is part of the property Mussnem, lying on the eastern side. He states that all that he can say is that his house is situate in the property 796. He states that it is true that in the deed of sale his property has been shown under No.13, as having been enrolled in the Land Revenue Office. He further states that in the property enrolled under No.13, the property registered under No.796 includes the house of the appellant and the coconut plantation. He states that he does not know how the family of Raut Dessai is enjoying the property Mussnem and does not know whether in the property registered under No.796, some factions of the property belonging to Visva Custa Raut, Govind Raut, Rama Raut, Govind Malopa Raut and others have been included. He states that he knows Ganesh Putu Raut, but it is not true that the house of said Ganesh is situated within Musnem. However, he states that the property Mussnem may be belonging to the family of Raut Dessai. Moturem is a member of the family of Ganesh. He states that he does not know whether Moturem is the daughter of Vithoba and grand-daughter of Loximon Raut and he does not know whether Loximon had four sons by names Vitoba, Xencor, Shiva and Vishnum and there was any partition amongst the members of that family. However, he states that the paddy field on the other side of the road is also part of Musnem and it is true that the coconut plantation to the west of the paddy field is known as Musnem. He does not know what was the share of Moturem in the property Musnem, nor in how many places, she was enjoying her right. But, he states that he only knows that the portion purchased by the plaintiff Romano was belonging to Moturem. To a suggestion that Moturm was enjoying some portion of the land in the mordi where appellant/defendant No.1 is staying, he states that it is not correct. Equally the suggestion with regard to Moturem''s enjoyment of a portion of the paddy field and of the coconut plantation in Musnem, has been denied. Appellant/defendant No.1 further states that Radha Ganesh Raut acquired property in the inventory proceedings which took place upon the death of her husband Ganesh and the appellant and others were their Mundkar. Then he states that Ganesh has a brother by name Shiva Putu Raut and his son Krishna Shiva Raut is living. However, he denies that the property purchased by him was belonging to Ganesh and Shiva Putu Raut. The witness states that he is not aware whether while enlisting the faction of Ganesh in the inventory proceedings the boundaries of the entire property were shown or only the boundaries of the said fraction were shown. To a specific question that in the inventory proceedings only the boundaries of the entire property were shown, he states that he does not know. Then there are further questions put to him with regard to the portion enjoyed by Vencu Raut and the location of the appellant''s/defendant No.1''s house which he says is about 50 metres away from the road and the land between the road and his house is sloppy. He admits that in front of his house and in between the road and the house, benches have been formed with beds. He states that the portion in dispute is only one lying to the west of appellant''s house and of the portion which has been formed in benches in front of his house. He admits that there are benches and beds in the portion in dispute. He further states that the ridges of the undisputed portion belonging to the appellant are in continuation with the ridges existing in the disputed portion. He then states that it is true that the land on which his house stands and the southern portion of the disputed portion are on the same level. Further he states that while it is not true that the land in front of their house is not being cultivated for last 20 years, it is not cultivated for at least 3 years. Then he states that the latrine is situated about 4 metres to the west of his house.
After deposing that the property was purchased in the year 1971 and the deed was produced, he fairly states that he cannot give the boundaries of the suit property as per the said deed of purchase. The property that he purchased is surrounded on four sides of mud ''ado'' and over it there are some trees. He once again states that the portion in dispute lies to the west. Then he deposes about the location of his house and that of the house of one Antonio Joao de Costa. He states that his house as well as the house of Antonio are within a portion encircled by the ''ado'' on four sides. It is pertinent to note that he states that it may be that the portion wherein the house of Antonio lies and the southern side ''ado'' which lies only towards the west, is enjoyed by one Shankar Xanu Raut Dessai and his family. He does not know whether the other portion to the rear of his house is enjoyed by Dottu Vishnu Raut Dessai''s family and then he states that he cannot say in whose property i.e. whether in the property of Shankar Raut Dessai or Vishnu Raut Dessai the house of said Antonio lies.
Then to a specific question as to whether the entire property, within 4 sides the ''ado'' wherein the house of the plaintiff and the house of said Antonio are lying, belonged to Laximon Raut Dessai, he states that he cannot say, but what he states is that the portion purchased by him wherein his house lies, belonged to Radha Ganesh Raut Dessai.
In his detailed cross examination what has come on record is that he has not counted how many bandios are there in that portion which Mothurem had enjoyed. He states that he has not counted the bandios, but it is false to suggest that 29 bandios were always been enjoyed by Mothurem and Venku Porob upto the sale to the plaintiff. He once again states that the portion had not been sold to the plaintiff and that he is not enjoying at all, but the appellant is enjoying the same. However, he does not know whether said Mothurem and Vencu sold their eastern part or interest in the property Musnem to the plaintiff. Then he states that it is true that the WC built by him lies towards the west and within the property of southern west ado. He states that the latrine built by him is lying on the western side and at a distance of about 5 metres from his house and where their old latrine existed. To a suggestion that there was no latrine existing earlier and for the first time the latrine came to be constructed in 1964, he denies it. Then he states that the old latrine was more towards the west than the new latrine built by him and the entire wastage of the old latrine could be seen at the site. However, he states that he cannot say how many years back the old latrine collapsed. He denies a suggestion that the portion, where his house lies and standing to the east, belonged to Shiva Putu and Ganesh Putu. He states that to the property that he purchased, said Shiva had no right at all. To a suggestion that he purchased the property in collusion with Radha in order to grab the portion of the plaintiff Romano, he denies it and then states that he does not know whether in the year 1957, after the purchase made by the plaintiff, Shankar tried to encroach into the suit portion consisting of 29 bandios. He further states that he does not know whether in that year the Civil Court handed over the suit portion to the plaintiff Romano and that too in a suit for possession filed by the plaintiff against the said Shankar. He once again states that in the deed of purchase made by him, said Shankar alias Kushali Raut Dessai, and Venku Porobo Raut Dessai have signed the deed as parties and the appellant/defendant No.1 sought intervention of the said two persons, because many sales effected at Assolda of the property of Raut Dessais, several suits have been filed by the members of the family of Raut Desssai claiming rights to their properties. Therefore, being members of the same family, intervention was sought.
Thereafter, the appellant/defendant No.1 examined one Caetano Dias who claims to know the defendant/appellant before me and the property wherein his house is located. What has come on record, in so far as this witness is concerned, is that the house of defendant No.1/appellant before me faces the road which goes to Assolda and the distance between the road and the house is about 40 metres. Then he deposes about the beds and as far as the disputed portion is concerned, what has been stated by him is that there are in all 26 cultivable beds on the right side, including six more or less on the front side, but more towards right and about four towards left hand side.
Purxotoma Porobo Dessai was also examined by the defendant No.1/appellant before me for the purposes of identification of the property and what has come on record is that Shanu Shankar Raut, Shiva Putu Raut, Vithola Putu Raut or Ganesh Putu Raut, Visvanata Dotu Raut and Kashinath Dotu Raut are his close relatives from his mother''s side. They are all descendants of Loximona. Then he states that 1/4th share is reserved after selling 3/4th to the plaintiff Romano Luis and this is a coconut portion of the property Musnem. That 1/4 portion belongs to him lies on the west of a bund of Visva Custa Raut. Then he deposes on the same lines about the location of the paddy fields, as the appellant No.1, but then, states that the land that was sold to the plaintiff Romano was the same which was in his possession as a mundkar and thereafter, the right is confined only to the west of the bund, and what has come on record is he does not know that which was the portion sold to the plaintiff. But he came to know only about the same after the sale and particularly that family does not have any share left on the western side of the bund of Visva Custa Raut, but on the western side they had some share. He states that it is true that the plot of their ancestor Loximona is surrounded on all sides by a mud wall. The witness does not seem to have been having any knowledge with regard to the specific acts of encroachment alleged.
There are other witnesses who are also examined by defendant No.1/appellant before me and one of their witnesses has deposed in a criminal trial between the same parties to this litigation.
It was necessary to refer to these depositions of the parties, in detail, because Mr. Usgaonkar, learned Counsel appearing for the appellant/defendant No.1 strenuously submits that the substantial questions of law that have been framed by this Court in the instant second appeal are projecting the specific plea of the appellant that the pleadings in the suit No.12/1969 are contrary to the document of purchase i.e. Sale Deed dated 15th December, 1951.
Mr. Usgaonkar submitted that the Courts below have acted in clear breach of the rule of evidence, viz. that when the document records the terms between the parties, then the oral evidence to prove the contrary is not permissible. He relies upon the principle enshrined in Sections 90 and 91 of the Evidence Act.
Mr. Usgaonkar also submitted that when there was variance between the pleadings and the evidence led and when as per the plaint in Suit No.12/1969, there is only one plot constituting 29 beds connected with one another and together forming a contiguous whole piece of land, but the evidence is to the contrary that there are 8 plots at different places, in such circumstances, according to Shri Usgaonkar, the suit could not have been decreed. The Courts below have seriously erred in law in overlooking and not considering this vital aspect of the matter. In the submission of Shri Usgaonkar, on the pleadings of the plaintiff Romano himself his suit No. 12 of 1969 is liable to be dismissed. Further, it has come in the cross examination of PW.1 in Suit No.12/1969 that the house of the defendant No.1/appellant before me is about 150 metres away from the house of plaintiff Romano and in between the house of the defendant No.1 and the plaintiff, there are several properties, including that of Raut Dessais. Mr. Usgaonkar submits that this completely destroys the version that there is one contiguous plot.
Mr. Usgaonkar has taken me through the Deed of Sale dated 15th December, 1951, agreed English translation of which has been furnished by both sides. He also submits that though the property was described as consisting of 44 beds, 15 consists of paddy field, 29 lying on the slope of Musnem on the southern side and in it lies a residential house of the plaintiff, but he did not specify whether interference was with respect to the first mentioned property or the second mentioned. In this behalf, he relies upon the pleadings and averments in the plaint in Suit No.12/1969. Mr. Usgaonkar also submits that the Courts below may have rendered concurrent findings, but once the same are vitiated as stated above, then it is open for this Court even in second appeal, to reappreciate and reappraise the evidence. Once, there is a clear perversity in the findings and vital piece of evidence is overlooked and ignored, then, all the more this Court should interfere and set aside the concurrent Judgments.
Mr. Usgaonkar then contended that if the plaint and the prayers are seen, it would be apparent that the words "said property" are described in para 1 of the plaint. In para 1 of the plaint, there is a reference of the title deeds of the said property. However, the title deeds are nothing, but the Sale Deed dated 15.12.1951. If that is also not indicative of the proper boundaries and location of the property of the plaintiff and from which no inference can be drawn about the alleged encroachment, then, all the more the findings of fact are vitiated. Mr. Usgaonkar submits that when there is a case of encroachment is pleaded, then, it must be demonstrated that the land or the property belongs to the plaintiff. Next, it must be demonstrated that it has been encroached upon to the extent indicated in the plant. Thirdly, the encroachment must be clearly identified with requisite details and with the assistance of a map or sketch. In the instant case, the map or the sketch produced is not enough to identify the encroachment. In these circumstances, on the basis of the recitals of the sale deed, the Courts below erred in holding that the appellant/defendant No.1 has encroached on the plaintiff Romano''s property. For all these reasons, the concurrent Judgments and Decrees be quashed and set aside.
On the other hand, Mr. Coutinho appearing on behalf of the respondent/plaintiff submitted that when there are concurrent findings of facts, which are based on the evidence and pleadings, this Court cannot, in second appeal, reappreciate and reappraise the said evidence and arrive at a different finding, merely because in its view appreciation of evidence could have been done in a better way. This is no ground to interfere in second appeal and particularly with concurrent findings of facts. In the instant case, there is ample evidence on record to demonstrate that the appellant has encroached upon the plaintiff Romano''s property and that encroachment is proved by producing the requisite documents, including the Deed of Sale. Even the oral and documentary evidence would demonstrate that there being beds and the property being divided into plots, some of which may be on the other side of the road, does not mean that there can be no encroachment at all. The plea of encroachment must be appreciated in the context of the pleadings and which need to be read in their entirety.
According to Shri Coutinho, what the arguments of Shri Usgaonkar overlook is that Plaintiff Romano pleaded that he is owner in possession and enjoyment of a fraction or parcel of land being 3/4th of 1/64 of the property known as ''Mussonem'' situate at Assolda. The fraction is registered in the books of Sub-Registrar, Quepem under No.24341. The fraction consists of 44 canteiras, out of which 15 are of paddy field, which go from east to west and rest are on the southern side slope of mordi, wherein there is a residential house and some fruit bearing trees. Now, the contention that the plaintiff has in his possession title deeds and he craves leave to refer to and rely on the same, must be appreciated in the backdrop of the admitted position that there was a sale deed in favour of the plaintiff; that it was duly registered; that it was prior in point of time and that it is in relation to the property "Mussonem". There are boundaries indicated in the sale deed. The fraction that has been sold to the plaintiff, has been amply and properly described. It may be that the averment in the plaint is that the defendants are residing in a house situate in the property belonging to one Shiva Putu Raut Dessai, which is adjoining the said property of the plaintiff, having a common boundary on the western side. Now, the trespass is pleaded to be in the year 1964 on a portion of the said property, means a fraction or parcel of such purchase under the sale deed of 1951. There was an unauthorised construction of a latrine and that is throughout in issue. The encroachment covered only 50 sq. metres, which was delineated in red and shown by letter B in the site plan. In these circumstances, when the evidence was led with regard to the title of the plaintiff''s property, location of the house, existence of the boundary wall on the western side and even the sloppy portion has been indicated and is an admitted fact, then it is hardly open for the appellant to argue that the Courts below have committed a serious error of law. The so called admission relied upon, cannot be said to be the admission with regard to the identification of the encroachment. It may be that the property is divided into several beds or plots and they are spread over, however, what is relevant in this case is the identification of the encroachment and it is sufficiently done. This is an attempt by the appellant/defendant No.1, who, during the pendency of the criminal proceedings, and particularly u/s 145 of Code of Criminal Procedure, entered into a sale deed with vendor and thereafter made Vencu Porobo Dessai a confirming party. All this when there was a finding of fact recorded against the appellant/defendant No.1 in the proceedings u/s 145 of Cr.P.C. which finding was confirmed in the Criminal Revision Application. This was sufficient to indicate as to how there was a collusion between the predecessors-in-title of the plaintiff and the appellant/defendant No.1 in allowing him to encroach upon and depriving the plaintiff of his lawful title to the said property. All this reveals that there is no inconsistency or variance in the pleadings, nor can it be said that the evidence is contrary to the same. Any attempt to reopen the concurrent finding of facts should be discouraged by this Court. Therefore, Shri Coutinho submits that the appeal be dismissed. He has relied upon a decision of the Hon''ble Supreme Court in the case of Rame Gowda (dead) by LRs. vs. M. Varadappa Naidu (dead) by LRS. and another, 2004(3) Bom. C.R. 788, in support of his contention that the plaintiff need not prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who had no title. Therefore, settled possession is a relevant factor, according to Shri Coutinho.
For properly appreciating the rival contentions, what would be necessary to be seen is, whether the Courts below have completely overlooked the pleadings or have permitted the evidence to be led contrary thereto. Secondly, whether, as contended, there was no identification of the encroached potion in any manner and, yet, the suit was decreed.
In this behalf, it is not necessary once again to refer to the pleadings, in detail, because, I have made sufficient reference to them in the foregoing paragraphs. What the case of the appellant to resist the suit of the plaintiff, being Regular Civil Suit No.12/1969 was that the latrine and the pigsty are standing for more than 50 years. Secondly, it is stated that the property of plaintiff Romano does not touch, in any manner, the property purchased and held by the appellant/defendant No.1. There was an old latrine in the disputed portion which came to be repaired. The plaintiff does not have any land nearby, yet, the suit has been mischievously filed.
Pertinently, in the suit filed by the appellant herein what he stated is that the property "Musdem" originally belonged to the family of Raut Dessai of Assolda. This family got extended, in decades into several branches, each of which was enjoying a particular portion or portions of the said property against his or their share. There was no instrument of partition. One Moturem Dessai was the daughter in the family of Raut Dessai, married to Vencu Porobo Dessai of Cotombi. She became entitled to a part in the part of the said property enjoyed by her parents'' family. The pleadings in the suit itself is that by escritura dated 15.12.1951, Vencu and Moturem sold to the plaintiff Romano 3/5th of 1/64th share belonging to them. In this escritura, the vendors expressly stated that what was sold was a fraction wherein there exists a mundkarial residential house of Romano. One Ganesh Putu Rauto Dessai was also enjoying another part of the property Mussodem, that stands to the south of the said Assolda-Quepem road and wherein the residential house of the plaintiff stands. Upon death of said Ganesh Rauto Dessai, there were inventory proceedings and the said part of the entire property described as 1/128 of 1/8 of 1/2 was allotted to his widow Radha. This part sold was mostly a sloppy land and was brought under cultivation to a considerable extent by the late father of the appellant/ defendant No.1 before me. That was with the permission of the owner Rauto Dessai. After death of father of the appellant before me, his mother was staying permanently and he and his elder brother were staying far away. Based on these allegations, what is further alleged is that the said Romano began interfering with the land that was under enjoyment of the family of Ganesh Putu Rauto Dessai. Quarrels took place and proceedings u/s 145 Cr.P.C. were initiated in the Court of S.D.M. Margao. Once it is an admitted position that the sale deed which is relied upon by the appellant/defendant No.1 is dated 18.11.1970 and which came to be executed post-initiation of the proceedings u/s 145 of Cr.P.C., then, what the Courts below have done is to scrutinise the same carefully. It is averred by the appellant/defendant No.1 in the suit that he purchased this part from Rada Ganesh Rauto Dessai to which transaction Vencu Porobo Dessai was one of the consenting parties. However, Romano tried to interfere with the possession of the appellant/defendant No.1 in respect of the property. This attempt was foiled and, therefore, this suit is filed for declaration and permanent injunction.
In this suit, a written statement came to be filed by the said Romano Fernandes and he denied that what was sold by Vencu and Mothurem was the area on which the house stands. He stated that Mothurem, as also her ancestors enjoyed their share of the plots on the eastern part of the property Musnem, as well as on the western part and consequently, what was sold by them was enjoyed by the defendant. One piece, on the high level land, is situated on the southern side and that was sold, which is the area presently in dispute. This area consists of 29 beds, which are under cultivation. The other piece standing on the northern side and the residential house of the defendant stands in this part. All the portions are enjoyed for more than 40 years by the plaintiff and that is how the plaintiff Romano who is the defendant in the other suit is entitled to it. This, by itself entitles him to claim prescriptive title. The appellant had been made aware about this claim and what is disputed before the Courts below and reiterated before me as well, is that by claiming such a relief Romano himself was in doubt about the extent of the property which he had acquired. It appears that in the written statement there is a detailed reference made to the share of Loximona Raut Dessai, plots enjoyed and sub-divided between the four sons and the inventory proceedings, pursuant to which widow Radha was allotted 1/128 of 1/8 of 1/2 of the entire property Musnem. It was, therefore, stated that it is not true that only a particular portion has been allotted to Radha during 1957 escritura, and a great grandson of Xencora Loximona Raut interfered and tried to disturb 29 beds and suit was filed against him in the Civil Court Quepem being Suit No.17673 (II office) which was decreed in favour of Romano, after granting interim possession. There is only interference in 1964 which prompted institution of the Suit No. 12 of 1969. When the appellant/defendant No.1 interfered with the possession again in 1970, that the proceedings u/s 145 of Cr.P.C. were commenced and, therefore, the deed of sale must be seen in this context.
Both the Courts below have found that all that was relevant for the purpose of the present suit is the identification of the area admeasuring about 1767.88 sq. metres of the property Mussonem and consisting of 29 beds. The Courts below concluded that the respondent Romano has proved that he is owner of this disputed portion and that there was an encroachment on the same in year 1964. That was by way of construction of a latrine and pigsty, covering an area of 50 sq. metres by the appellant-original defendant No.1. There is no dispute about the location of the houses or the boundary walls. It is not the case of Romano that the encroachment is in his house property. It is his specific case that the encroachment is on the area identified as paddy field and that an extent of 50 metres of the same is rendered unusable. The location and identification of this portion is proved as held concurrently by the Courts below.
Both the Courts below have referred to extensively the contents of the documents, including the escritura and have held that if the escritura is construed in its entirety, what was purchased was not one plot, but a fraction or parcel of land. This Sale Deed dated 15.12.1951 nowhere says that fraction sold is only one plot or that it is one contiguous unit. The Courts below held that there is a mundkarial house of the respondent Romano in this fraction as per the sale deed. But, by that, no conclusion can be reached that what has been sold is one contiguous plot, having a house therein.
The correct English translation has been produced together with other documents in a compilation and since great emphasis have been placed on the same, I have carefully perused the same with the assistance of the learned Counsel appearing for the parties. It states that in the Commerce of Salcete, Margao city, parties appeared one is Vencu Purxotoma Porobo Dessai and his wife Moturem Dessai residents of Cottombi and second is one Romano Luis Fernandes, who is a toddy-tapper, resident of Assolda. The first party being the landlord and the second party being identified as the purchaser, what has been stated therein is that the party of the first part, namely the landlord having their dominion and possession, have agreed to sell to party of the second part, without any reservation, 3/4th of 1/64 i.e. 3/4th of 1/4th of 1/8th of 1/2 of the property Musdem, situate at Assolda, enrolled in matriz under No.13 and not described in the Land Registration of the Comarca of Quepem, as it is shown in the certified copy issued by the latter on the application presented under no.1 of the daily of 1st November, 1951, in which are shown the boundaries of the entire property which are reproduced. That the said fraction sold lies on the eastern side and as property in itself and distinct is bounded on the east by water shed and paddy field of Farazes (basket mattress); on the west by the bund of property Musdem which is included in the remaining fraction of the said property of the vendors and others, on the south by water shed and on the north by the uncultivated land without especial name of Goddess Malsa of Mardol and others. Therefore, for the consideration that has been mentioned and the fraction has been sold and that in the fraction there exists a house of residence built by the party of the second part as mundkar. All this was accepted by the parties, each to the extent it touches them. There is reference to the other and usual recitals. To my mind, the Courts below have not committed any error in arriving at the conclusion that what has been sold is a fraction on the basis of the shares held by the landlords/vendors and from which no inference can be drawn that it is one contiguous plot of land which has been agreed to be sold and purchased. The Courts below have held that there is a statement in the sale deed that there is a house in the 3/4 fraction sold to the said Romano. This statement is for identification of the property sold. The fraction of the property forming part of the larger property Musdem is sold to Romano and boundaries are also demarcated. May be the area of the fraction is not mentioned in the sale deed which is exhibited as Exhibit P.26 and no plan is annexed.
As against this, what the appellant/defendant No.1 relied upon is the sale deed dated 18.11.1970 under which he claims to have purchased 4712.50 sq. metres and bounded on the east by the property Musnem of Pandu Vassu Raut and others, on the west by Shri Kurade, on the north by a road and property Musnem of Shankar Raut Dessai and Sita Rautina and on the south by Musnem of Shanu Shankar Raut Dessai and Dottu Vishnu Raut. The Courts below have concluded that the 3/4 fraction claimed by Romano appears to have been located within the above boundaries. This sale deed has not been accepted, as the Courts below held that it was executed during the pendency of the Regular Suit No. 12/1969. If the Sale Deed of 15.12.1951 has to be clearly understood and in that backdrop the evidence that is led by the parties has to be appreciated, then, a conclusion can be reached that the sale deed relied upon by the parties to the litigation executed during the course of the litigation needs to demonstrate and prove completely that the recitals in the earlier sale deed of 1951 are false or do not identify the property which is claimed by Romano. In this behalf what Romano brought before the Court was the documents, including the judgment in the Suit No. 17673 (II office) for restoration and possession, filed against Shankar Shanu Raut alias Kushali and his wife way back in the year 1957 with the same facts pleaded with regard to the fraction and relied upon the sale deed of 1951. The Civil Judge of Quepem held that evidence on record was sufficient to conclude that the fraction was in peaceful and exclusive possession of Romano and his wife and that was sufficiently identified throughout as 44 beds, of which 29 are situated on higher level and 15 spread in the lower part or paddy field. This matches the description under No. 24341 and the area of 29 beds was ascertained. Further restored property under this Decree also consisted of the portion of coconut trees and where there exists a residential house and some mango trees and other fruit bearing trees and teak trees. The possession was restored to Romano on 18.10.1957 and an appeal to the Commissioner was dismissed by an order dated 26.8.1968. At Exhibit P.27, this Judgment and Decree was produced and both the Courts below relied upon the same in holding that since 1957 the possession of the fraction is with the plaintiff Romano.
The argument of the appellant/defendant No.1 that to this suit, neither the appellant nor his predecessor-in-title said Radha nor her predecessor-in-title Shiva were parties, came to be rejected by holding that Romano was handed over physical possession of the property because of the dispute that he had with the said Shankar alias Kushali and his wife and in that suit of 1957. He has proved physical possession of the property. The argument that this has, at the most, proved the physical possession and not the title, has been rejected by holding that the same escritura was relied upon even in those proceedings.
Secondly, what Romano produced before the Courts below was an order dated 26th March, 1971 of the Sub-Divisional Magistrate, passed in the proceedings u/s 145 of Cr.P.C. wherein the present appellant was a party. It was regarding the very disputed portion and Romano was declared to be in possession of the land bounded on the east by Musnem of Shiva Rauto Dessai; on the west by Musnem of Shankar Rama Raut Dessai; on the north by public road and on the south by the plot of Shankar Raut Desssai and it was held that Romano was entitled to possession. This is the same disputed portion in the Suits No.12/1969 and 20/1971.
If Romano was held to be in uninterrupted and continuous possession of the disputed portion ever since 18.10.1957, then, what both the Courts below have concurrently held is that the evidence on record in the present suit establishes that 29 beds belong to the plaintiff Romano and it is the appellant who encroached thereon to the extent of 50 metres by constructing latrine and pigsty. If it was the case of the present appellant that this was existing for more than 50 years and the existing latrine/WC came to be repaired later on, then, I do not see how the affirmations in the plaint of Civil Suit No.12/1969 and particularly in paragraphs 1 and 2 thereof would be of any assistance to the appellant. However, it was strenuously contended that the Courts below have lost sight of the fact that what Romano pleaded was that the house of the defendant No.1 Thomas Rodrigues is in the property belonging to one Shiva Raut Dessai which is adjoining the plaintiffs said property, having a common boundary on the western side. Therefore, necessarily, the encroachment must be held to be in so far as the portion adjacent to the land of the plaintiff. In other words, the argument is that may be that the house is existing adjoining the plaintiff''s said property and from which what the plaintiff wants to prove is that even the latrine/WC construction and encroachment in the form thereof is very much in proximity or adjacent to the plaintiffs'' property. In such circumstances, according to the Counsel appearing for the appellant, admission by the plaintiff that the house of the appellant/defendant No.1 is situated at about 150 metres away from the plaintiff Romano and between his house and the defendant''s house, there are several properties, including that of Raut Dessai is fatal. That itself is enough to disbelieve the case of any encroachment.
It is not possible to accept this contention, because what has been found by the Courts below is that the pleadings must be read in their entirety. The construction of a latrine/WC is what is termed as an encroachment and not the construction of the house. That there are houses existing in the properties is, therefore, an admitted position and may not assist the appellant. From this, the appellant wishes to urge that even the encroachment is pleaded to be very much in proximity and in the adjoining portion or in the adjoining plot. Therefore, if the land purchased is contiguous, as stated in para 1 of the plaint, then, necessary inference should be that the encroachment is by the defendant/appellant before me coming on to this plot.
This argument has been rejected by both the Courts below by relying on the contents of the sale deed placed on record. Both the Courts have held that the encroachment is to the extent of 50 sq. metres. There may be some difference here or there, but what has come on record is that the encroachment and its location has been sufficiently identified. It is not as if the boundaries were not available at all. The boundaries were available and, therefore, when there was no partition between the family of Vendors, and what has been relied upon in the Inventory Certificate (Exhibit 14) which showed that even the said Ganesh had only limited share which came to be inherited by widow Radha and Radha is the Vendor under whom the appellant is claiming the property, the Courts below have held that the documents show that the shares were separated by metes and bounds for exclusive possession and enjoyment. The Sellers of this Sale Deed dated 18.11.1970 could not sell a particular property, admeasuring 4712.50 sq. metres with particular boundaries mentioned therein. Further, there is no cogent explanation as to why Anant Ganesh Raut Dessai and Xencora Xanu Rauto Dessai have been taken as the consenting parties. Even Vencu Raut Dessai, the husband of Maturem and Maturem, who are the vendors under whom the plaintiff Romano is claiming the property, under prior Sale Deed dated 15.12.1951, have been made consenting parties. Upon such conclusion, and complete appreciation of the oral and documentary evidence, that the Courts below have held that this is nothing but a deliberate attempt to deny the Sale Deed dated 15.12.1951. The Courts below have also and, in my opinion, rightly disbelieved the case of the appellant in his own suit that Loximona had a plot on the southern side which was divided into four parts amongst his four sons. One of the sons is Shiva. Ganesh is the grand son of Shiva. Therefore, Radha has a fraction in that plot and, she could not have claimed anything else. As far as other sons of Laximan Dessai are concerned, the Courts below have identified the location of their properties. Therefore, the boundaries shown to the plot purchased by the appellant demonstrated that on the southern side of the plots are the property of Dharmu Visvanath and Shanu Shiva Raut. This indicates that the fraction that is sold and claimed by the appellant under the sale deed dated 18.11.1970 does not include the portion in dispute and claimed by the plaintiff Romano in Regular Civil Suit No.12 of 1969. This an additional reason assigned by the Courts below in arriving at a concurrent conclusion that there is an encroachment made by the appellant on Romano''s property. This is not a case where any sketch/map or identification thereof not being on record is fatal to the case of Romano. Some of the statements in the deposition and particularly the cross examination of Romano cannot be seen in isolation. They may be admitting certain set of facts, but, if the evidence led by him, together with other witnesses and particularly, the version of the appellant/defendant No.1 before me is scrutinized as a whole, that would not mean that the encroachment has not been identified or location of the property is disputed and, therefore, the plaintiff Romano cannot succeed.
I am in agreement with the Courts below that by way of title documents, as well as the documents establishing possession, the plaintiff Romano has proved that the present appellant has committed the encroachment by construction of a latrine cum WC on his property and to that extent the possession has to be delivered back to him. There is one more reason in agreeing with the Courts below and that is if there was any dispute about identification or location of the encroachment and the structure styled as latrine and pigsty, then, it was not necessary for the appellant to plead that the same was existing for more than 50 years and had been repaired. He pleaded that there was nothing new about the construction and, therefore, it cannot be termed as encroachment, which he has miserably failed to prove and that would be evident if one makes a reference to the deposition in RCS 20/71 and equally, the evidence led in rebuttal by the appellant in Regular Civil Suit No.12/69. It is, therefore, clear that an attempt was made by the appellant to show that he has not encroached upon the property by constructing latrine and pigsty and what he has done is to repair the existing old latrine. Once the existence thereof is not proved, then all the more the conclusion by the Courts below is based on the additional factor that the appellant has encroached on the plaintiff Romano''s property and agitated because of the criminal proceedings, that the subsequent sale deed came to be executed and a collusive attempt was made to harass original plaintiff Romano.
For all these reasons, it is not possible to agree with Shri Usgaonkar that the substantial questions of law that are framed would merit reversal of the concurrent findings of facts. Once, I have seen the pleadings in the above perspective and, as a whole, then, it is not possible to agree with Shri Usgaonkar that the evidence led was in variance thereof, or that the Courts below have allowed the plaintiff Romano to lead oral evidence contrary to the document of purchase i.e. Sale Deed dated 15.12.1951.
All that the Courts below have done is to peruse the sale deed with the assistance of the parties and analyse it, so as to arrive at the conclusion referred to above. That was clearly permissible and no rule of evidence has been breached. It is not a case where any contrary evidence has been led. All this is based upon only one statement in the deposition of PW.1 in Regular Civil Suit No.12/1969. Once, I have held that it is not fatal, nor does it assist the appellant Thomas Rodrigues in proving that there was no encroachment, then, all the more there is no reason to reverse the concurrent findings of facts. As a result of the above discussion, the second appeals fail and are, hereby, dismissed, but without any order as to costs.