The High Court at Goa dismissed the second appeal filed by original defendants challenging the decree of the Civil Judge and District Judge in a suit for recovery of property. The court upheld the rejection of claims based on mundkari rights, purchase, and adverse possession.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Maria S. 1
sa-47-17 dt.17.11.2017
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 47 OF 2017
Mrs. Yamini Sawant & 3 Ors., ... Appellants
Versus
Dr. Pandurang V. Kamat Ghanekar… Respondent
Mr. Nigel Da Costa Frias, Advocate with Mr. P. Sawant, Advocate
for the Appellants.
Mr. J. P. Mulgaonkar, Advocate for the Respondent.
Coram : N.M. Jamdar, J.
Date : 17 November 2017.
P. C.
This Second Appeal is filed by the original Defendants
challenging the concurrent Judgment and Order passed by the
learned Civil Judge, Panaji and learned District Judge, Panaji,
decreeing the suit filed by the Plaintiff and dismissing the Appeal
filed by the Appellants.
2.The Respondent-Plaintiff filed the suit for recovery of
suit property bearing no. 40/9 of Curca Village, Tiswadi Taluka.
The Respondent-Plaintiff also sought relief of injunction against the
Appellants. The case of the Respondent-Plaintiff that the
Appellants, the original Defendant no. 3 had a cattle-shed in the suit
property. However, sometime in the year 1996, the Defendant no. 3
Maria S. 2 sa-47-17 dt.17.11.2017
demolished the cattle-shed and an illegal structure was put up.
According to the Respondent-Plaintiff, necessary steps were taken
and representations were made to various authorities. The Appellants
approached the authorities for water connection, which was objected
by the Respondent-Plaintiff. Further, proceedings were taken by the
Appellants and ultimately the Respondent-Plaintiff filed a Regular
Civil Suit No. 80 of 2006 in the Court of Civil Judge, Junior
Division, Panaji, for recovery of possession. The Appellants by filing
the written statement took three defences. First, that the structure
over the suit property was a mundkarial house. Second, that the
Appellants had purchased the property by paying consideration to
the Respondent-Plaintiff. Thirdly, that the Appellants have become
owners by adverse possession. The learned Civil Judge after
considering the evidence on record did not accept the case of the
Appellants and decreed the suit by Judgment and Order dated 31
December 2012. The Appellants, thereafter, filed Regular Civil
Appeal no. 9 of 2014. The learned District Judge after considering
the material on record dismissed the Appeal by Judgment and Order
dated 11 August 2016.
3.Heard Mr. Nigel Da Costa Frias, learned Counsel for
the Appellants and Mr. J. P. Mulgaonkar, learned Counsel for the
Respondent-Plaintiff.
Maria S. 3 sa-47-17 dt.17.11.2017
4.The first submission made by Mr. Nigel Da Costa Frias,
learned Counsel for the Appellants was regarding the claim of the
Appellants of being mundkar of the structure in question. Both the
Courts have considered this aspect and have found that the structure
was 70mts away from the suit property and the claim of being
mundkar was of the father of the Appellants in a different suit
property. In the view of these facts, the claim of the Appellants
being mundkar was rightly negated.
5.The second contention of the Appellants was based on
the ownership right of the Appellants pursuant to a purchase from
the Respondent-Plaintiff. Both the Courts have rightly held that
there was no Sale Deed nor any documents of transfer in favour of
the Appellants. Nothing is shown as to how this finding is incorrect,
except by stating that the amount was given to the Respondent in
trust. In absence of any title deed, claim of the Appellants based on
ownership cannot be accepted.
6.Mr. Nigel Da Costa Frias, learned Counsel for the
Appellants then submitted that the Appellants are entitled to
continue in possession of the property being in adverse possession of
the same. Mr. Da Costa Frias, relied on the averments made in the
written statement and also admissions of the Respondent-Plaintiff.
Maria S. 4 sa-47-17 dt.17.11.2017
According to Mr. Da Costa Frias, the Appellants through their father
bearing possession of cattle-shed and subsequently the property since
1971-72, the records show the name of the Appellants to which no
objection was taken. Subsequently, house number was given to the
structure on 06 December 2014 to which also no objection was
taken. The construction was put up in the place of the cattle-shed in
the year 1994 and only in 2006 the suit has been filed and the
Appellants have been in open, clear and hostile possession of the suit
property. Mr. J. P. Mulgaonkar, learned Counsel for the
Respondent-Plaintiff submitted that the both the Courts have
considered this aspect and have also considered the law laid down by
the Apex Court and have arrived at a correct finding.
7.Even assuming all the facts relied upon by Mr. Da Costa
Frias are to be accepted, still it will not amount to adverse possession
of the Appellants. The Apex Court in the case of L. N. Aswathama
and anr. Vs. P. Prakash, (2009) 12 SCC 229 has observed that it is
not enough that there is long and continuous possession, even
permissive possession. For adverse possession, there must be an
animus to dispossess the true owner and there must be clear
indication of the possession being hostile to the title of the true
owner. In the present case, after the structure was put up, the
Respondent-Plaintiff has made representation to the authorities and
it is not that the Respondent-Plaintiff accepted the possession, even
Maria S. 5 sa-47-17 dt.17.11.2017
assuming the possession is to be considered as permissive possession.
Both the Courts have recorded the finding of fact that for electricity
and water connection, Appellants represented that they have
permission of the Respondent-Plaintiff. Both Courts thereafter
considered these ingredients and rightly concluded that they do not
pass the test of establishing adverse possession.
8.There is no error in the conclusions of the Courts based
on the law laid down by the Apex Court. In the circumstances, no
substantial question of law arises. There is no perversity in
appreciation of evidence. The Second Appeal is accordingly
dismissed.
2 issues framed by the court
Whether long and continuous possession amounts to adverse possession given the plaintiff's representations to authorities.
Whether the lower courts erred in rejecting the claim of adverse possession under the law laid down by the Apex Court.
Colour shows how this judgement treated each authority
L. N. Aswathama and anr. Vs. P. PrakashExplained¶7
L. N. Aswathama and anr. Vs. P. Prakash, (2009) 12 SCC 229 · Who else cites this
Mrs. Yamini Sawant & 3 Ors.
Dr. Pandurang V. Kamat Ghanekar
N.M. Jamdar
As recorded by the court registry
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