TaxTMI 
TaxTMI 
1976 (4) TMI 192
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....d on the plaintiffs, Bascora and his six sisters. Before the partition of the property among the legal heirs of Sitabai, Bascora acquired the rights from some of his sisters and became the owner of the suit property with other heirs. Bascora's parents had inherited this property from their ancestors. The father of Bascora had permitted the ancestors of the defendants to build a house for their residence on a part of the property subject to the condition that they shall have to vacate the plot when called upon to do so. In the latter event, they shall be entitled to remove the superstructures of the building raised by them. Even so, the plaint goes on to say that Caetana Esperanca Fernandes, the mother of the appellant, Jose da Costa, executed a deed on November 16, 1920, before the notary public of Comarca, which indicated that she and her family members were owners of the plot. On the basis of this deed, the defendants asserted ownership of that part of the plot on which stands the house built by their ancestors and now in their occupation. On the above allegations, the plaintiffs prayed for a declaration that the plaintiff, Bascora, and the other heirs of his mother, Sitabai, a....
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....ion goes to the root of the matter. It was raised by the defendants in their pleadings and the matter was put in issue. It was again taken up in the grounds of appeal filed in the Court of the Judicial Commissioner, but was left undecided. For the purpose of doing complete justice in the case, we think it necessary to have the advantage of the finding of the court below on this issue. Accordingly, we remit this case to the Court of the Judicial Commissioner, Goa, Daman and Diu with the direction that it should after rehearing the parties record a specific finding on the issue as to whether the defendants had acquired full title to the suit property by prescription under the law in force at the relevant time. The Judicial Commissioner shall submit his report with reasons therefor to this Court within four months from the date on which the records are received in his court. In the meantime the appeal shall remain pending in this Court. We have actually taken the facts of this case from the above decision. The Judicial Commissioner has since submitted his report dated December 5, 1975, and the appeal has come up before us for final hearing. After examining the entire evidence, oral....
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....the word "allege" in the above paragraph in the present tense makes any difference in the matter of the plea. Not only in the plaint, but also in the evidence, the plaintiff Bascora gave further reinforcement to the plea of adverse possession when he stated thus : "... in 1920 the deponent (that is the plaintiff), desiring to build the house existing in the plot of land, there were disputes raised by defendant's mother and by one Santana Costa and then the deponent (that is the plaintiff) notified them through the Administration Office of Sanguem to vacate the plot land. He does not know what subsequent course his petition had ......" Mr. Tarkunde submits that there might have been some dispute which, however, was settled and the plaintiffs built the house on the suit land and the defendants also continued on the land under the earlier permissive arrangement. Mr. Tarkunde draws our attention to the following passage in the evidence of defendant No. 1 :- In 1920 more or less, the plaintiff built a house in the plot in question and began to stay there. The same house was built very near the house where the deponent (that is the defendant No. 1) stays and which already existed at ....
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....tion from the side of the plaintiffs speaks a volume about their knowledge of the repudiation of title. Mr. Tarkunde also invited our attention to the statement of defendant No. 1 to the effect that the plaintiff for reasons of enmity does not receive this rent nor he ever asked for its payment to the deponent (that is defendant No. 1) and other members of his family. This statement cannot be torn from the context of the alternative plea set up by the defendants. This statement is fairly consistent with the alternative plea of perpetual lease of the land set up by the defendants. According to the defendants the land had been in their occupation on perpetual lease from Visnum Narcornim, the plaintiffs' paternal uncle and once that would have been acknowledged by the plaintiffs the defendants would perhaps be wiling to pay even to the plaintiffs the annual rent. But it is the clear case of the plaintiffs that the story of perpetual lease was false and fraudulent and besides that Visnum Narcornim had no interest in the land and was not competent or authorised to lease out the same. We, therefore, cannot accept the exaggerated importance to the above statement of the defendant No. 1 ....
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.... possession by the defendants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the plaintiffs to the land in 1920. The fact that the defendants set up title in Visnum Narcornim describing him as plaintiffs' ancestor, does not affect the position in view of the plaintiffs' avowed denial that Visnum Narcornim had anything to do with the land. Visnum Narcornim is survived by his own descendants and we are not dealing with a case where Visnum Narcornim's heirs as such have sought eviction of the defendants from the land. The plaintiffs do not accept Visnum Narcornim's title to the land as their title. The Judicial Commissioner fell into an error because of not keeping the distinction between Visnum Narcornim's title to the land and the plaintiffs' title to the same. The origin of ownership of the suit land being dipped in the misty past what emerges from the evidence, in the absence of proof of lease or permission by the plaintiffs' own ancestors, is that the defendants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to ri....