Second appeal against confirmation of trial court decree dismissing partition suit and decreeing counterclaim. Court upheld findings that property was transferred in lieu of surrendering tenancy rights.
Appeal against confirmation of dismissal of suit and decreeing of counterclaim dismissed.
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SA75&76/2013
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IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NOS.75 & 76 OF 2013
Shri Rajendra Dattaram Shirodkar .. Appellant Versus Prakash Dattaram Shirodkar (Dec) Through his L.Rs. And 9 others .. Respondents.
Mr. Joaquim Godinho, Advocate for the appellant.
CORAM :- R. M. SAVANT, J. DATE : 9 th October, 2013.
P.C.
The original plaintiff is in appeal against the judgment and decree dated 15/03/2013 passed by the learned District Judge at South Goa, Margao, by which, the decree of dismissal of the suit passed by the Trial Court and decreeing of the counterclaim filed by the defendants, came to be confirmed.
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of the said Sale Deed that the plaintiff filed the suit in question for partition of the Plot D1 so as to carve out his 1/3rd share. The defendants no.3 to 10 i.e. the brothers of the plaintiff set up a defence that the property in question was of joint ownership and was given in lieu of tenancy rights of the plaintiff and the defendants which were existing in the property on account of the fact that their father was a tenant. The defendants no.3 to 10 also filed the counterclaim claiming a declaration that they are the co-owners of the plots in question. In the Trial Court, the parties led evidence. The evidence of the builder was also adduced. In the said evidence, the witness PW7, who is the employee of the said Reliance Builders deposed that the plots were transferred to the plaintiff and the defendants for surrendering the tenancy rights and for no other consideration. It is also required to be noted that the Sale Deed in respect of Plot D2 also contains a covenant that in consideration of vacating the house/ structure situated in the property bearing Survey No.43/1 of village Seraulim and in lieu of surrendering the tenancy rights, Plot D2 was transferred to the purchaser i.e. the plaintiff. The fact that the plaintiff had admitted that he had received a sum of Rs.2,60,000/- from M/s. Reliance Builders was also taken note of by the Courts below. The fact that the plaintiff was given a General Power of Attorney by the defendants dated
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28/09/1991 to surrender the tenancy rights in respect of the property in question, to apply for loan from the Financial Institution, to appoint agents and carry out construction work and so on was also taken into consideration by the Courts below. It is on the basis of the aforesaid material that the Courts below have dismissed the suit in question and decreed the counterclaim declaring the defendants as the co-owners.
R. M. SAVANT, J.
SMA
1 issue framed by the court
Whether defendants can be declared co-owners of property despite a sale deed being executed in favour of the plaintiff.
Shri Rajendra Dattaram Shirodkar
Prakash Dattaram Shirodkar (Dec) Through his L.Rs.
R. M. SAVANT
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
