Bombay High Court
Antonio Filipe Vaz & Others vs Comunidade Of Margao, Through Its ... on 9 July, 1998
Equivalent citations: 1999(1)BOMCR537
Author: J.A. Patil
Bench: J.A. Patil
ORDER J.A. Patil, J.
1. This appeal arises out of the judgment and Decree dated 26th May, 1993 passed in Regular Civil Appeal No. 1 of 1992 by the District Judge, South Goa at Margao. The learned Judge dismissed the said appeal and confirmed the judgment and decree passed by the Additional Civil Judge, Senior Division, Margao in Regular Civil Suit No. 15247 of 1956/B. The learned Civil Judge had decreed the suit for demarcation of the suit property.
2. The appellants herein are original defendants Nos. 1 to 4. The original plaintiff Aleixo Caetano Cardozo of whom present respondents Nos. 2(a) to 2(f) are the legal heirs, had filed the said suit against the appellants and others for demarcation of the property known as "Cupangali" situated at Cupangali Ward, Margao which was initially described in the Land Registration Office of Salcete under No. 33332 and later on registered in the name of the deceased plaintiff under No. 45004. In the plaint, the plaintiff described the boundaries of the suit property as being on the east by the land granted on perpetual lease to defendant No. 3, on the west the properties of defendants Nos. 1 and 2, on the north the property of the heirs of one Antonio D' Silva (that is, defendants Nos. 7, 8 and 10) and on the South a public road. The plaintiff further averred that on the western boundary of the suit property there was no boundary stone or mark. Similarly the other three boundaries do not bear any mark except one or two stones. Hence, according to him, this property was mixed up with the adjoining property. The plaintiff, therefore, prayed for demarcation of the suit property by fixing boundary stones.
3. The defendants resisted the suit and denied the plaintiffs title and possession of the suit property. They contended that the property sought to be demarcated by the plaintiff is contiguous to the leasehold property which was granted to Lourenco Vaz by the Comunidade. The said Lourenco was the grandfather of the appellants-defendants. The defendants further averred that in 1902 the said Lourenco applied for a grant of lease of 30000 sq. metres adjoining the property "Cupangali" already held by him as "Aforamento". However, the Comunidade did not grant the application to Lourenco Vaz. But, in the course of time, Lourenco committed encroachment upon the adjoining property to the extent of 10 metres. According to the defendants, after the death of Lourenco in 1910, there was an inventory proceedings in respect of his properties and in the said inventory proceedings the said encroached portion was allotted to his daughter Francisco. The said Francisco later on got married to Simao Cardozo and went to live with him. In the meantime the said encroached portion which was allotted to Francisco continued to be in possession of her brother Jose Bento Vaz, who made further encroachment upon the property of the Comunidade towards the east. The fact of such encroachment was acknowledged and recorded at the time of the demarcation work carried out by the Comunidade in 1923 and it was noted that the encroachment upon the property of the Comunidade consisted of two parts, the northern part admeasuring 9821 sq. metres and the southern part admeasuring 12734 sq. metres. Thus, according to the defendants, Jose Bento Vaz, the son of Lourenco, was in actual possession of an area of 12106 sq. metres being the land held as Aforamento by his father Lourenco plus an area of 22555 sq. metres being the portion of total encroachment upon the property of Comunidade. The defendants contended that the said Jose Bento had become owner of the entire land by prescriptive right and as such the plaintiff, who claimed to have purchased the suit property from Simao Cardozo did not get any title. The defendants also contended that the suit for demarcation was not maintainable since the property was already demarcated.
4. The learned Civil Judge upon consideration of the evidence on record came to the conclusion that the suit property is a distinct entity and the same was identified by the Commission of Experts. The learned Judge negatived the defendants' contention of having acquired title by prescriptive right and held that the plaintiff was the owner in possession of the suit land. He also negatived the defendants contention about the maintainability of the suit and proceeded to decree the suit as prayed for. In appeal the learned District Judge upheld the findings recorded by the learned Civil Judge also held that there was no reason for any interference in the judgment and decree passed by the trial Court.
5. Shri P.P. Singh, the learned Advocate for the appellants, made three submissions before me. The first is that the suit for demarcation of the suit property is not at all maintainable in view of the fact that the boundaries were already demarcated and that the Portuguese Civil Code does not permit any suit for fresh demarcation. The second submission made by Shri Singh is that a suit for demarcation simpliciter without any prayer of declaration is not maintainable. The third submission is that both the lower courts have committed a serious irregularity and error by relying upon the report of the Experts which was in fact not exhibited in the main proceedings and the defendants were not given any opportunity to cross-examine the Experts with reference to the report and plans prepared by the Experts.
Shri S.S. Usgaonkar, the learned Advocate for the respondents, submitted that the suit property was never demarcated previously and that the Com mission of Experts appointed by the trial Judge rightly identified the same.
Shri Usgaonkar further submitted that it was not necessary for the plaintiff to seek any relief of declaration since the same is implicit in the relief of demarcation itself.
6. The suit filed by the original plaintiff Aleixo Caetano Cardozo purports to be a suit under Articles 1051 and 1057 of the Portuguese Civil Code. Relying upon the provisions of the said Code, Shri Singh pointed out that the fixation of boundary marks either by common agreement or by Court action is of perpetual effect and fresh demarcation cannot be applied for. He further pointed out from the "Tratado de Direito Civil" that if any boundary marks are destroyed or disappeared by accident, then the concerned party can refix the same without filing any fresh suit. The argument of Shri Singh proceeds on the assumption that the suit property was previously demarcated by fixing boundary marks. The assumption is, however, not borne out by any documentary evidence. It is material to note that the property which was leased by the Comunidade to Lourenco Vaz admeasures 12106 sq. metres and is known as "Cupangali". The averments made by the defendants in their written statement show that subsequently the said Lourenco Vaz had, and after his death his son Jose Bento, committed encroachment on the property of the Comunidade situated on the eastern side. It is also the defendants' case that the initial encroached portion of 10 metres width was allotted to Francisco, the daughter of Lourenco in an inventory proceedings, and the same was got registered in 1923. However, there does not appear to be any occasion for demarcation of the said property allotted to Francisco. Shri Singh pointed out from the plaint itself that on the northern, eastern and southern sides of the suit property there are one or two boundary marks. This fact, according to Shri Singh, indicates that the suit property was previously demarcated. However, on a careful consideration of the submission, it will be seen that the said boundary stones are in respect of the properties which are adjoining the suit property on its three sides. Therefore, the existence of the boundary marks of the adjoining properties does not necessarily mean that the suit property was specifically demarcated. Moreover, on the western side there appears to be no boundary mark. In the light of these circumstances, the first contention of Shri Singh does not stand.
7. Coming to the second contention, it relates to the maintainability of the suit. According to Shri Singh, a suit for demarcation simpliciter without any relief of declaration is not maintainable. There is, however, no sub stance in this contention. As rightly pointed out by Shri Usgaonkar, the relief of demarcation implies that the plaintiff claims to be the owner of the property.
Consequently it is unnecessary and redundant for the plaintiff to seek the relief of declaration of his title also. Of course the plaintiff will not get the relief of demarcation unless and until he proves his title to the property which is sought to be demarcated. Hence, the second contention of Shri Singh also deserves rejection.
8. The third contention of Shri Singh relates to the admissibility of the evidence in the form of report and plans prepared by the Commission of Experts which were not brought on the record of the main file white exhibiting the same. It appears that in an interlocutory proceeding the trial Court appointed a Commission of three Experts to identify the suit property. Accordingly, the team of Experts visited the site and after making inspection and inquiry submitted its report stating that the suit property is the property which lies between the property which was first granted as 'aforamento' to Lourenco on the western side and the properties of Azaredo e Melo on the eastern side. The learned District Judge has observed that both the parties had taken part in the inspection and had put their queries to their Experts and as such the defendants were not entitled to challenge the unanimous opinion expressed by the Commission of Experts about the identity of the suit property. It may, however, be noted that the Commission of Experts was appointed during the course of hearing of an application for temporary injunction in the trial Court. If the Court wanted to rely upon the said documents for the purpose of final hearing of the matter, then the same should have been brought on the main file of the suit by giving a clear indication that they would be considered. In that, event, the defendants would not have been taken by surprise and they would have got an opportunity to point out how the opinion expressed by the Commission of Experts was not correct. It will thus be seen that a serious prejudice is caused to the defendants when the trial Court relied upon the report and plans prepared by the Commission of Experts, without affording due opportunity.
9. Apart from this, while relying upon the said report and plans, both the lower courts have totally ignored the material fact which goes to the root of the question about the identity of the suit property. The plaintiff claims to have purchased the suit property from Simao Cardozo, the husband of deceased Francisco, under a registered Sale Deed dated 12th January, 1953. The said Sale Deed shows that what was purchased by the plaintiff under the said Deed was the property which was initially registered under No. 33332 at folios No. 4 of Book B. There is, however, no extract of document giving description of the property which was registered in the name of Francisco under No. 33332. It appears that a portion of the width of 10 metres which was encroached upon by Lourenco was allotted to his daughter Francisco in the Inventory Proceedings. The Sale Deed dated 12th January, 1953 does not give the boundaries except the eastern one of the properly sold to the plaintiff. It recites:
".....that the referred property sold to the latter, is presently bounded on the east by the leased properly to Advocate Roque Fenelon da Pledade Azaredo of Margao, addition which also was mutually accepted."
It will thus be seen that the Sale Deed neither gives the western, northern and southern boundaries nor the actual area sold to the plaintiff. Despite this position, the Commission of Experts could locate the suit property as being bounded by the land which was held by Lourenco under the first aforamento. What the Commission of Experts therefore appear to have done is that they first identified the property which was initially given on lease to Lourenco and took the eastern boundary of that property as being the western boundary of the suit property. Obviously the Commission of Experts proceeded on the assumption that the entire property between the aforamento granted to Lourenco and the land held by Arzaredo e Mello was purchased by the plaintiff. This assumption is patently wrong and has absolutely no basis. It is true that the Sale Deed in favour of the plaintiff specifies the eastern boundary, but, in the absence of any specific area of specific boundaries on the other three sides, it cannot be ascertained as to what is the exact area or extent of the suit property. Both the lower courts have totally ignored this material aspect and blindly relied upon the report and plans of the Experts. Thus, in any event, no reliance could have been placed on the report and plans prepared by the Commission of Experts. Consequently, both the courts were in error in granting the relief of demarcation to the plaintiff.
1O. In the result, the appeal is allowed and the judgment and Decree passed by the learned District Judge in Regular Civil Appeal No. 1 of 1992 is hereby set aside. The plaintiffs suit for demarcation of the suit property is hereby dismissed. In the circumstances of the case, parties to bear their own costs.
11. Appeal allowed.