Bombay High Court
Communidade Of Morombi O Grande vs Jose Autonio Rodoilo Acuaviva Braganza ... on 17 December, 2004
Equivalent citations: 2005(3)MHLJ443
Author: B.H. Marlapalle
Bench: B.H. Marlapalle
JUDGMENT B.H. Marlapalle, J.
1. This appeal arises from the Judgment and Order dated 4-9-1999 passed by the learned Civil Judge, Sr. Division, at Panaji in Special Civil Suit No. 91/81 which was filed for declaration and mandatory injunction, as well as mesne profits in respect of the property situated at Morombi O Grande. The suit was instituted by the appellant-Communidade of Morombi O Grande. Defendant No. 1 is the father of defendant No. 3 Angelica and defendant No. 4 Egidio. Defendant No. 2 is the second wife of defendant No. 1 and stepmother of defendants No. 3 and 4. The first wife of defendant No. 1 and the mother of defendants No. 3 and 4 died on 22-5-1963.
2. The suit property which was alleged to have been encroached upon by the father of defendant No. 1 sometime in 1946 or thereafter was shown as bounded by letters L, M, N, O, P, Q, B, A, H, G, I, J, K and L and it admeasured 1,44,340 sq. metres. The plaintiff Communidade who was otherwise holding agricultural land in Survey No. 218/1 admeasured 7 hectares 9 ares and 87 sq. metres, as well as Survey No. 219/1 admeasured 12 hectares, 44 ares and 75 sq. metres. It appears that sometime in 1972, the State Government acquired land admeasuring 45,260 sq. metres from Survey No. 218/1 and bounded by letters L, X, Y, H, G, I, J, K and L. The Land Acquisition Officer passed an Award on 26-2-1973. The plaintiff submitted an application to the Dy. Collector praying for release of the amount in its favour. As there was a dispute between the plaintiff and defendant No. 1 regarding the apportionment, in respect of the compensation amount, the amount came to be deposited with the Dy. Collector and it was not disbursed to any of the contesting parties.
3. In Special Civil Suit No. 91/81, it was contended by the plaintiff that it is an absolute owner and possessor of a rustic property at Morombi O Grande which bore no special name and is bounded on the east by property of Francisco Xavier da Costa Pegado, on the west by the Village Murda, on the north by the property of heirs of Manuel Jose Caldeira, Roberto Caldeira, Alvaro dos Remedios Furtado and Jose Antonio Gonsalves and on the south by the public road and the property of the plaintiff. Out of the said property, an area admeasuring 45,260 sq. metres was acquired by the State Government. In the plan annexed to the plaint, Part I and Part II were shown in respect of this acquired land and it was contended that Part I area admeasuring 3400 sq. metres fell in the share of the defendants and the remaining area admeasuring 41,800 sq. metres was from the holding of the plaintiff. The plaintiff was, therefore, entitled for the compensation in respect of the land admeasuring 41,800 sq. metres. The defendants were entitled for compensation in respect of the balance area i.e. 3400 sq. metres only. The area admeasuring 3400 sq. metres was shown by letters 'A', 'X' and 'Y' in the plan; whereas, the balance area (Part II) was shown by letters I, J, K, L, X, A, Y, H, G and I. In short, the suit filed was for declaration that the defendants have no right whatsoever in the land shown as Part II and bounded by the letters I, J, K, L, X, A Y, H, G and I in the plan marked 'X' and submitted with the plaint as well as for the compensation in respect of the said area by giving part of the compensation to the defendants in respect of the area marked as Part I and bounded by the letters A, X and Y Part-I (triangular in shape). The plaintiff had also prayed for mesne profits in respect of the area marked as Part II in Annexure X as well as directions to vacate the remaining suit, land and deliver its peaceful possession to the plaintiff. A permanent injunction to refrain the plaintiff and its servants, agents, workers etc., from interfering with the remaining suit land marked as Part III, in any manner was also prayed for.
4. Written statement was filed by defendants No. 3 and 4 and defendants No. 1 and 2 did not choose to file written statement or any pursis, adopting the written statement filed by defendants No. 3 and 4, though they have subsequently appeared through an Advocate before the Trial Court. It was contended by defendants No. 3 and 4 that they are owners of the suit land by virtue of adverse possession and the plaintiff had no subsisting right whatsoever in the said land. The suit land was possessed by them through their grand father Egidio since 1916 and upon his death, by defendant No. 1. They denied the possession of the plaintiff over the suit land and claimed that the entire compensation amount in respect of the acquired land was payable to them. They also contended that the suit was barred by limitation and it was required to be dismissed. The trial Court framed in all seven issues. The total agricultural land, originally in the ownership of the plaintiff was divided into three parts, in Annexure "X", i.e. Part I acquired by the State Government, Part II allegedly encroached upon by the defendants and Part III, the land remaining with the plaintiff. These parts could not be identified as founded by following letters :
Part I - A, X, Y. Part II - I, J, K, L, X, A, Y, H, G, I. Part III - L, M, N, O, P, Q, B, X and L. The first issue was regarding the possession of the plaintiff on the land in Part III and the disturbance caused by the defendants. This issue was answered in the negative, holding that the plot marked by letters L, M, N, O, P, Q, B, X and L was not identified by the plaintiff, except with the above letters, as the plan showing the plot within these letters was not exhibited. It is also held that the plaintiff could not prove its right to receive the compensation exclusively in respect of the plot marked as Part II in the sketch plan. Issues No. 5 and 6 were in respect of the defendants' ownership by adverse possession and they were answered in the negative. Issue No. 7 was regarding limitation and the trial Court held that the suit was barred by limitation. Part I and Part II are the area acquired by the State Government and the area allegedly encroached upon by the defendants is Part II and Part III as shown in the Plan 'X'.
5. Mr. D'Costa, the learned Senior Counsel appearing for the plaintiff submitted that by specific Order dated 22nd January, 1997, the plan marked "X", submitted along with the plaint was allowed to be placed on record and, through the evidence of PW. 2, an Engineer, it was proved, that the boundaries of the land as well as the land acquired by the State Government and the land originally granted and alleged to have been encroached, were duly established and identified by the plaintiff. The trial Court proceeded totally on erroneous premises by answering issue No. 1 in the negative. He further submitted by referring to the provisions of Articles 535, 552 and 559 of the Portuguese Civil Code that the suit was within limitation, even if it was presumed that the encroachment on the suit property was made by defendant No. 1 or his father way back in 1946, as the limitation under the Portuguese Civil Code in such cases is of 30 years and every interruption of prescription results into further extension of limitation period. Defendants No. 1 and 2 did not file their reply and, therefore, it has to be presumed that they did not contest the suit. On account of the defendant No. 1 choosing not to contest the suit, the title of defendants No. 3 and 4 was not marked and their share was only provisional unless inventory proceedings on the demise of their mother had concluded. Without such inventory proceedings, the share of defendants No. 3 and 4 in the property of their grandfather could be only provisional and they did not acquire an independent right to contest the suit. Defendant No. 4 was born in 1963 and he attained the age of 18 years in the year 1981. In addition, defendant No. 1 had himself approached the plaintiff for the first time in 1967 for regularisation of their encroachment and the same request was repeated in 1972-73. It was finally rejected by the plaintiff in 1975. These interruptions would be also relevant in deciding the issue of limitation under the Portuguese Civil Code. The plaintiff further contended that defendant No. 1 and his late father had grabbed the land of the plaintiff over and above the grant made in favour of defendant No. 1 in 1907. They had not taken any steps to get the encroached land regularised till 1967, though during the intervening period about 16 to 18 encroachers were granted such a benefit under the Code of Communidades. As the share of defendants No. 3 and 4 was not fortified, they had no independent right to apply for regularisation and in any case, the suit was filed in 1981 when defendant No. 4 had attained the age of 18 years.
6. Mr. Lotlikar, the learned Senior Counsel appearing for defendants No. 3 and 4, on the other hand, has supported the impugned decision of the trial Court. It is submitted that the limitation for claiming the compensation in respect of the share of land acquired by the State Government was only of three years and for the remaining reliefs, the limitation period was of 12 years. The alleged encroachment, as per the plaintiff, itself was in 1946 and, therefore, the suit filed in 1981 for declaration, eviction, permanent injunction and restoration was hopelessly time barred. Reliance in this regard has been placed on the decision of the Supreme Court in the case of Syndicate Bank v. Prabha D. Naik and Anr., . The boundaries of the respective plots i.e. Part No. I, Part No. II and Part No. III or any one of them were not duly identified and the sketch allegedly submitted and marked as "X" was not exhibited. Under such circumstances, the conclusion drawn by the trial Court that the plaintiffs could not identify the suit property, cannot be disturbed. It was further contended by Mr. Lotlikar that defendants No. 3 and 4 got their share through their grandfather, who was the original grantee and the suit property had come in his possession before 1946. The un-interrupted possession for more than 40 to 50 years was itself a sufficient reason for holding the defendants as the owners of the suit property and they had become the owners by adverse possession.
7. As the issues No. 5 and 6 have been answered against the defendants by the trial Court and they have not filed any cross appeal or an independent appeal before this Court, it is not necessary to deal with the issue of adverse possession in favour of the defendants. The main issues which arise for consideration of this Court are as under :
(a) Whether the plaintiff proves that it was in ownership and possession of the suit land shown in Part II and Part III in Annexure "X"?
(b) Whether the suit land was in permissive possession of or was granted to the defendants or was encroached upon by them?
(c) Whether the suit filed by the plaintiff was barred by limitation?
8. The plaintiff examined two witnesses i.e. AW. 1 Antonio Caldeira, who was at the relevant time the President of the Managing Committee of the Plaintiff and PW. 2 Rui Rebello de Santan, Civil Engineer. Whereas, the defendants examined defendant No. 4 Egidio Braganza as DW. 1 and Mario Braganza DW. 2. Through the evidence of PW. 1, a copy of the Award passed by the Land Acquisition Officer and marked as Exhibit A-1, was brought on record along with the certificate of land registration (Exhibit P-2). The Certificate issued by the Communidade regarding the grant made in favour of the father of defendant No. 1 i.e. Egidio Braganza (Exhibit P-3), another Certificate issued by the Communidade admitting the encroachment (Exhibit P-4), a Certificate issued by the Administrator of Communidades regarding the application made by Egidio Braganza, father of defendant No. 1 to the Governor General for grant of aforamento and the withdrawal of application dated 21-8-1907 (Exhibit-5). A copy of the order passed by the Administrative Tribunal, permitting filing of the suit was also placed on record at Exhibit P-6. It is to be noted at this stage that the translation of the documents at Exhibits P3, P4, P5 and P7 has been placed on record separately. The documents at Exhibit P-3, P4 and P5 show that Egidio Hipolito Braganza had submitted an application in 1906 for grant of land and by Order dated 27-4-1907, the grant was made in his favour in respect of the land admeasuring 26,370 sq. metres. The said plot was starting from the northern angle admeasuring 210 sq. metres, second 138 metres, third one 180 metres, fourth 80 metres, fifth 60 metres, sixth 42 metres and the seventh 51 metres, bounded on the east by the property of Hipolito Pegado and others, on the west by the land of Communidade, on the north by the property of Manuel Jose Caldeira and others and on the south by the space of 50 metres, reserved between the property and public path way. So far as this grant is concerned, there is no dispute between the parties. There is another application made by defendant No. 1 himself on 21-8-1967 for regularisation of the land admeasuring 1,44,340 sq. metres. The record also shows that the father of defendant No. 1 had applied for grant of 14 hectares of land and he specifically withdrew the same. In this application dated 21-8-1967, it was stated, "In the survey of land of the Communidade of Morombi O Grande, more than thirty years ago, was given as discovered one encroachment of a plot linked to the property of Egidio Hipolito Tome de Braganza, which encroachment was attributed to the same Egidio in an area of 144340 m2. The said Egidio passed away and the applicant in the capacity of legitimate son and possessor of the property claiming to receive from the Government the value of the hilly acquired land, the property in which is figuring also the area referred above arising from the encroachment made and acknowledged, the Administration prayed for stay of payment of compensation which the Government intends to pay to the heirs of the same Egidio pleading that the encroachment .... Now the same plot of land is applied for on emphyteusis by a Naique family, in four proceedings, as it is evident from public notices in Govt. Gazette III Series, dated 14-3-1968 and 21-3-1968 and that it concerns the same plot of land, the applicant came to know. ..." Again on 15-2-1973, defendant No. 1 made a similar application for allotment of land admeasuring 1,42,922 sq. metres. The plaintiff communicated its decision, as per the depositions of PW. 1, and the applications for regularisation of the encroachment were rejected in 1975.
9. Article 324 of the Code of Communidade (Legislative Diploma No. 2070 dated 15.4.61) states that it is permissible to communidades to give on permanent lease uncultivated land which is not being used and even that cultivated under pulses when they are applied for cultivation of paddy, fruit trees or for building of houses. As per Article 325, no leases can be given of firstly land of common usage; secondly land indispensable for cattle grazing; thirdly land used as access of neighbours; fourthly land used for stocking of harvest and other works necessary for cultivation and protection of fields; fifthly destined for water reservoirs for irrigation of fields or for breeding of fish and so on. As per Article 329, the petitions for lease will be directed to the Governor General and will be presented in the respective Administration of Comunidades. Chapter IX, Section II of the Code of Comunidades deals with the encroachment found out by or without complaint and on application made, there is a provision for regularisation of the encroachment by payment of market value prevailing at the time of encroachment, plus 25 % more of such value. There is a register of encroachment that is required to be maintained by the Comunidade. Thus, the rights for grant of leases as well as seeking regularisation of encroachment on the Comunidade land for cultivation are originating and governed by the provisions of the Code of Comunidades. The defendants succeeded the original grantee i.e. Egidio the father of defendant No. 1.
10. The decision in the case of Syndicate Bank v. Prabha D. Naik and Anr. (supra) arose from a reference made to a Larger Bench on the issue of applicability of the provisions of the Limitation Act, 1963 in the State of Goa, Daman and Diu vis-a-vis the limitation prescribed under the Portuguese Civil Code. The Supreme Court, inter alia, held :
(a) The Portuguese Civil Code is a complete Code in itself, dealing therein with various articles of the statutes and the limitation for enforcement of such rights cannot, but be said to have arisen from the Civil Code and not dehors the same.
(b) The issue of limitation under the Act framed by the Parliament and in which limitation period was not set out, will be covered by the Limitation Act, 1963 even in the State of Goa; and
(c) The Portuguese Civil Code provides both for accrual of rights and its enforceability and either it applies in its entirety or does not and there is no half way about it.
The decision in the case of Syndicate Bank (supra) lays down the law for the purpose of the Indian Contract Act, Negotiable Instruments Act and the Sale of Goods Act and other statutes framed by the Parliament on the issue of limitation governed by the Limitation Act even in the State of Goa and not by the Portuguese Civil Code. However, the legal position that the issue of limitation set out in the special Act shall be governed by such special statute has not been disturbed. If the dispute arises in respect of a property of share/management of such property which has devolved under the said special statute, the limitation in such dispute would be governed by the provisions in such statute, if available. As said earlier, the suit property belonged to the plaintiff Comunidade, the administration of which is governed by the Code of Comunidades, the original grant was made to the father of the defendant No. 1 under the Code of Comunidades, the application submitted by defendant No. 1 for regularisation of the alleged encroachment in 1967 as well as 1973 was also made under the Code of Comunidades and these applications were processed under the said Code. The applications were turned down by following the procedure under the Code. The submissions of Mr. Lotlikar, the learned Senior Advocate appearing for the defendants that the limitation of 12 years from 1-1-1964 i.e. from the date of Limitation Act, 1963 came into operation, was applicable to the instant case, cannot be accepted. The issue of limitation in the instant case will have to be considered on the basis of Articles 535, 552 and 559 of the Portuguese Civil Code. The relevant Provisions of the said Articles, read as under :
Article 535. Whoever is under the obligation to another to render, or to do anything, may free himself of the said obligation if it has not been demanded within a period of twenty years, and the person under the obligation is in good faith when the period of prescription expires, or for thirty years, irrespective of good faith or bad faith, unless the law has laid especial periods of prescription.
Para :
Good faith in case of negative prescription consists in not knowing about the existence of the obligation. Such ignorance is not presumed as regard persons who have contracted mandatorily such obligation.
Article 552 - Prescription
1. If the person in possession is deprived for a period of one year of the possession of the thing or of the right.
2. Where summons is issued by the Court to the person in possession or to the debtor, unless the plaintiff withdraws the suit filed or the suit is decided in favour of the defendant or the suit is dismissed for non-prosecution.
3. By attachment, summons for conciliation, or objections through the court, if within one month computed from the respective record or registration, the plaintiff files a suit in the competent court.
4. By an express acknowledgment, whether made by word or in writing, of the right of the person against whom prescription will operate or by facts which necessary imply such acknowledgment.
Article 559 The consequence of interruption of prescription is to cancel for the purpose of prescription the time that has earlier run.
11. In the case of Sardar Amarjit Singh Kalra v. Pramod Gupta, , the Constitution Bench in the matter of applicability of the procedural rigours, observed that the laws of procedure are meant to regulate effectively, assist and aid the object of substantial and real justice and not to foreclose even an adjudication on the merits of substantial rights of citizens under personal, property and other laws. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. The procedure would not be used to discourage the substantial and effective justice but would be so construed as to advance the cause of justice. Keeping these principles in mind, if the issue of limitation is examined in the instant case, it would be noted that for the relief of declaration, possession and permanent injunction in respect of the suit property, the limitation of 30 years as set out under Article 535 would be applicable and when the prescription got interrupted under Article 552 of the Portuguese Civil Code, the period of 30 years would get further extended at every interruption, as per Clause 4 of Article 552. When the applications submitted by defendant No. 1 for regularisation of the encroachment were rejected, that would be an interruption in the prescription and the consequences of such interruption would be as set out under Article 559 of the Portuguese Civil Code. Mr. Lotlikar, the learned Senior Counsel, by referring to the application dated 8-10-1973 submitted by defendant No. 1 and more particularly the following statement, urged before this Court that the father of defendant No. 1 was holding the possession of the suit property as an encroacher for more than three decades and, therefore, on completion of this period of 30 years, the plaintiff was to bring the suit for declaration or for seeking possession :
"It is not put nor can it be put in doubt that the applicant is entitled to see legalised his possession conducent to positive prescription, as it is more than three decades, in the land encroached by his father, through the payment of value established and fixed on the occasion of survey, in terms of Article 475 paragraph first of the Code of Comunidades, 1933 and of Article 386 paragraph first of the Code of Comunidades, 1961 in force."
This submission appears, at the first instance, to be appealing, but on close examination of the application dated 5-8-1967 submitted by defendant No. 1 for regularisation of encroachment, it could be noted that the said defendant had never pleaded that Egidio had encroached upon the suit land. In the first part of this application 5-8-1967, it is stated that the land which was allotted to Egidio Braganza as aforamento was in possession and ownership of the applicant from 1946 onwards. In the second part, it states that it is a hilly land and without regular boundaries, admeasuring 1,44,340 sq. metres, was found to be encroached by the heirs of late Egidio. But the said encroachment was not acknowledged by Egidio notwithstanding the fact that he never applied for encroachment and in the next part of this application, there was a request made out for regularistion of the encroached land.
12. So far as defendant No. 1 is concerned, there is no case made out to hold that the suit was barred by limitation or that it was not filed within a period of 30 years as contemplated within the meaning of Articles 335 and 352, read with Article 359 of the Portuguese Civil Code, so far as the relief of declaration, possession and permanent injunction is concerned. At the same time defendant No. 2 was married to defendant No. 1 after 1963 and, therefore, the suit filed in 1981 is within less than 20 years of defendant No. 1 marrying defendant No. 2, though defendant No. 2 may have only provisional share in the property that would fall to the exclusive share of defendant No. 1 in the inventory proceedings as and when undertaken. Defendant No. 4 is born in 1963 and the suit has been filed within a period of less than eighteen years from the date of his birth. In the case of defendant No. 3 as well, it cannot be said that the suit was beyond limitation, though both defendants No. 3 and 4 would also have a provisional right in the property owned and possessed by Egidio because they could be entitled for the half share of their mother if the property on the demise of the mother i.e. first wife of defendant No. 1 was divided by way of inventory proceedings. It is pertinent to note that the Judge of the trial Court has considered the issue of limitation only by considering the relief of payment of compensation in respect of the land admeasuring 3400 sq. metres. There is no reasoning assigned as to why the suit for other substantial reliefs of declaration, possession and permanent injunction was hit by limitations.
13. So far as the relief of compensation in respect of the land acquired by the State Government is concerned, the compensation was being sought under the Land Acquisition Act, 1894. The land was acquired in 1972 and the Award came to be passed on or about 26-2-1973. The plaintiff had within a period of three years from the date of award, approached the Collector and questioned the entitlement of the defendants to receive the compensation in respect of the entire land. Consequently, the compensation amount has not been disbursed to any of the parties it is lying with the Dy. Collector. At the same time, the plaintiff has never disputed the defendants' right to receive the compensation in respect of the triangular portion bounded by letters A, X and Y and marked as Part 1 on the plan "X". Compensation in respect of the acquired land is a constitutional guarantee under Article 300A and in the present case the issue of limitation would not arise as the amount is lying with the Dy. Collector.
14. The trial Court held, as noted above, that the suit property could not be identified. This finding is wholly unsustainable. Along with the suit, the plan of the entire property i.e. the suit property, the acquired land by the State Government, as well as the area granted to Egidio and the balance holding of the plaintiff Comunidade was filed and the same was marked "X". The trial Court noted that the same was not allowed to be taken on record or exhibited. This finding is fallacious. By order dated 22-1-1997, the trial Court overruled the objections for placing the plan on record by the following reasoning :
"Heard learned advocates Shri U. Naik, Gopal Mhambre and A.P. Furtado on the point whether a plan of the Comunidade can be produced in evidence through PW. 2 Rui Rebello de Santana. In my opinion, the suit is for declaration of title and confirmation of possession. Plaintiff's engineer PW. 2 produces Comunidade plan given to him to tally the site at the loco to prove title over land in suit. In the facts and circumstances of the case, Comunidade plan was admissible under Section 13 of the Evidence Act. As such, objections raised as above stands overruled. Further examination in chief to continue."
15. In his depositions, AW. 2 Rui Rebello da Santana, when his attention was invited to the said plan, stated :
"When I inspected the site I had with me the plan which is marked for identification and also the other documents including the sanad of concession in respect to property granted to defendant No. 1. The said property granted to defendant No. 1 is shown in the plan under green colour. In the said plan the property granted to defendant No. 1 is shown on the letters A,B,C,D,E,F, G and H. The said plan shows a property as it is at the site. I did not prepare my separate plan when I went to the said site since the said plan was given to me by the Comunidade to tally the suit site at the loco."
The trial Court went on to observe :
"Shown to the witness the said plan produced by the Comunidade and which tallies the suit site at the loco, however, at the time of exhibiting this plan through PW. 2 Advocate U. Naik and also Advocate Mhambre raised an objection stating that PW. 2 has no power to produce this plan which was given to him by the Comunidade since the said plan was marked as X for identification and since both the Advocates stated above for exhibiting this plan I feel that both to be heard on the legal aspect of this matter, whether PW. 2 could produce this plan prepared by deceased Karapurkar."
It was only after this recording of the evidence on 13-9-1996 that the above referred Order dated 22-1-1997 was passed by the learned Judge of the trial Court. The plan was thus proved by the evidence of PW. 2 and which gives the boundaries of all the three parts, namely Part I, Part II and Part III, marked in different colours. This plan leaves no doubt regarding the identification of the respective properties, namely the property originally granted to Egidio Braganza, the property acquired by the State Government and the property encroached upon by the defendants.
16. In the document at Exhibit P-3 i.e. the register of the Comunidade the property granted to Egidio Braganza in the year 1907, has been described as under :
"... that the same has the shape of an irregular polygon of seven sides, the same admeasuring starting from the north-eastern angle the first two hundred and ten metres, the second one hundred thirty eight, the third one hundred and eighty, the fourth thirty, the fifth sixty, the sixth forty two and the seventh fifty one, thereby having an area of twenty six thousand three hundred and seventy square metres and that it is bounded on the east by the properties of Hipolito Pegado and others, on the west by the land of Comunidade, on the north by the properties of Manuel Jose Caldeira and others and on the south by the space fifty metres wide reserved between this property and the public pathway...."
Once the property originally granted to Egidio is identified on the plan "X" and the property acquired by the State Government has been duly earmarked, there was no difficulty in identifying the suit property. It is evident by reading the boundaries of Part I, Part II and Part III earmarked on this plan that an area admeasuring 3400 sq.metres, triangular in shape and bounded by letters A, X and Y from the total area of 45,262 sq. metres was from the land allotted/granted to Egidio in 1907 and the remaining area admeasuring 41,860 sq. metres of the acquired land fell in the portion encroached upon and marked as Part II. This identification is also in harmony with the pleadings set out by the plaintiff in its plaint and as explained by PW. 2, in his depositions.
17. The documents at Exhibits P-3, and P-4 do show that an area admeasuring 26,370 sq. metres was granted to late Egidio and the deceased had encroached upon neighbouring area admeasuring 1,44,342 sq. metres. For the first time, the encroachment was sought to be regularized by application of August 1967, and followed by another application in October, 1973. Both these applications came to be rejected. Defendant No. 1, in both these applications has clearly admitted the encroachment having been made on the suit land. These documents are maintained in the normal course and as per the registers maintained under the Code of Comunidades. They have been duly proved by the evidence of PW. 1 to be the extracts from the register maintained by the Comunidade. These documents also show that as per the provisions for regularisation, as set out in the Code of Comunidades, defendant No. 1 had tried for regularisation, but the same was rejected in 1975. Defendant No. 1 was, thus, an encroacher when he submitted the first application itself. The theory of ownership by adverse possession has been rejected by the trial Court. Therefore, the same is not available to the defendants, unless they had challenged the said finding and the challenge was upheld. This issue has attained its finality.
18. Once the defendants have been held to be the encroachers on the suit land, the plaintiff is entitled to receive mesne profits on the said property which was in possession of defendant No. 1 and rightly the claim for mesne profits has been made from the date of institution of the suit on 7-7-1981 and not for the earlier period. The suit, therefore, succeeds in respect of the prayer for mesne profits as well.
19. In the result, the impugned Decree in Special Civil Suit No. 91/1981 is, hereby quashed and set aside and the said suit is decree against the defendants. It is held that the defendants have no right whatsoever over the land in Part II and III on the Plan "X" located on the west and north of land granted to late Egidio Braganza on aforamento basis and which is shown on the plan "X". It is further declared that the said land belongs to the plaintiff. The defendants are directed to quit and vacate the suit land and deliver peaceful possession thereof to the plaintiff. The defendants are also directed by permanent injunction, on handing over the suit property to the plaintiff, to refrain themselves and their servants, agents and workers from, in any way, interfering with the said land. The defendants shall pay by way of mesne profits to the plaintiff an amount of Rs. 1,000/- per year in respect of the suit land with effect from July, 1981 onwards. This amount shall be deposited with the trial Court within a period of four weeks from today.
Costs throughout.
Decree be issued accordingly.