Friday, 26 June 2015

Whether court can supply a word whole interpreting a deed which is not used by author of document?

 In the case of “Mula Sahakari Sakhar Karkhana
Ltd.”(supra), the Hon'ble Apex Court has held that a document,
as is well known, must primarily be construed on the basis of the
terms and conditions contained therein and that it is also trite
that while construing a document the Court shall not supply any
words which the author thereof did not use. It has been further
held that surrounding circumstances are relevant for construction
of a document only if any ambiguity exists therein and not other
wise. Therefore, it is evident from the above provisions of law that
nothing can be added to the Deed of Partition by way of oral
evidence. The said document at Exhibit PW1/A-colly speaks for
itself. No doubt, there were no survey numbers as mentioned in

paragraph 2A, at the time of said Deed of Partition. But the said
Deed of Partition, in itself, does not show that the property was
divided into various plots, of various dimensions, lying at
particular places, and that some such plots were allotted to the
plaintiffs and some to the defendants. In the circumstances
above, the first substantial question of law gets answered in the
negative, since truely, the said Escritura de Divisao (Deed of
Partition) at Exhibit PW1/A-colly is merely a declaratory
document.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 57 of 2004
 Mr. Lateran Max Francisco Vaz,

Versus
 Mrs. Volvetta Gomes,




CORAM :- U. V. BAKRE, J.

Pronounced on : 13 th June, 2014 .
Citation; 2015(3) ALLMR594 Goa high court

Heard Mr. Dessai, learned Senior Counsel appearing
on behalf of the appellants and Mr. Mascarenhas, learned
Counsel appearing on behalf of respondents no. 1 to 4.
2. This Second Appeal is filed against the judgment, order
and decree dated 21/01/2004 passed by the Additional District
Judge-III, South Goa, Margao (First Appellate Court) in Regular
Civil Appeal No. 42 of 2001, by which the Judgment, order and
decree dated 12/03/2001 passed by the Civil Judge Junior
Division, Margao, (Trial Court), in Regular Civil suit No.
39/1986/C, has been quashed and set aside.
3. The appellants and respondents no. 5 to 8 were the
plaintiffs in said Civil Suit whereas respondents no. 1 to 4 and 9
were the original defendants therein. Parties shall, hereinafter,
be referred to as per their status in the said civil suit.
4. The plaintiffs had filed the said suit for permanent
injunction to restrain the defendants, their relations, servants,
etc. from encroaching into the plaintiffs' land and/or from making

any extensions or encroachments or erecting any structure into
the plaintiffs' land and for mandatory injunction directing the
defendants to remove and/or demolish the southern
encroachment and/or extension made to the defendants' house to
the extent of four metres in the plaintiffs' land as well as the
south- eastern encroachment made in the plaintiffs' property to
the extent of 13.50 square metres as shown in the plan.
5. The case of the plaintiffs, after amendment of the
plaint, in short, was as follows :
There exists a property known as “MANDXEMELINGA”
bearing land registration description no. 21741 of book B and 58
situated at Baradi of Velim Village of Salcete Taluka. By Deed of
Partition (Escritura de Divisao) dated 22/11/1943, the said
property alongwith the other properties namely “Aforamento Vaz”
or “Garmenda” and “Tambiachi-Galle” was divided or partitioned
into two halves between the plaintiffs' family and the defendants'
family as a result of which, the plaintiffs and the defendants are in
exclusive enjoyment and possession of their respective portions
allotted to them. But the said property “MANDXEMELINGA” was
a vast property and at the time of partition, it was divided in such
a way that alternate plots were allotted to the plaintiffs and to the
defendants. The plots allotted to the defendants are surveyed in

the cadastral survey of village Velim under nos. 42/2, 42/4, 42/7,
42/9 and 43/16, whereas the plots allotted to the plaintiffs are
surveyed under nos. 40/3, 42/1, 42/5, 42/6, 42/8, 42/10 and 43/10.
A portion of the said property belonging to the plaintiffs and
surveyed under no. 42/10 is demarcated on its northern side by a
ridge. A portion of the said property belonging to the defendants
is surveyed under no. 42/9 in which there exists a residential
house of the defendants. Some time in March, 1984, the
defendants made an illegal extension on the southern side of the
said house by constructing a structure covered with palm leaves
wherein the defendants are storing firewood and other materials,
thereby encroaching upon the plaintiffs' land on its northern
boundary to the extent of about 4 metres as shown in the
sketch/plan annexed to the plaint as Exhibit 5. The plaintiffs took
up the matter before the Village Panchayat of Velim and the
Village Panchayat advised the plaintiffs to approach the Civil
Court. The plaintiffs relied upon the assurance of the defendants
that they would remove the said extension, but failed to do so.
Somewhere in the month of February, 2000, the defendants
further encroached into the plaintiffs' property towards the southeastern
side to the extent of 13.50 square metres by placing loose
stones. This encroachment has been shown in the plan drawn by
Engineer Bhende. Hence, the suit.

6. The defendants no. 1(a) and 2 filed their written
statement, which was adopted by the defendant no. 1(b). After
amendment of the plaint , the defendants no. 1(a), 1(b) and 2 filed
additional written statement. They alleged as under :
The Deed dated 22/11/1943 was not a Deed of
Partition and that nothing was partitioned by metes and bounds
by the said deed which is only declaratory in nature. All the three
properties listed therein were purported to be divided by allotting
one half of each to one party and the other half to the other party.
However, the said deed has neither stated as to in what manner
the division has been made nor has demarcated or identified the
said half allotted to the parties. Unless such demarcation or
partition by metes and bounds take place, no party can claim any
exclusive right in respect of specific portions of the property
described in the plaint or in the other properties which were the
subject matter of the said deed. What the said deed establishes is
that one party holds right to one half and the other holds right to
the other half, but the defendants or their predecessors never
agreed to any separate partition or demarcation of the said
property. At the land registration office, the inscription is with
respect to the right to one half. The plaintiff no.1 had long ago
agreed to partition the entire property by metes and bounds, but

did not fulfill his promise and as per such partition, it would allot
to each party, equal area and in the meantime and as provisional
measure, the parties have held separate portions of the said
property for the sake of convenience, but such an arrangement
creates no rights and there is no deed or decree creating such
rights. The property has been wrongly surveyed into several
holdings and there is no basis for the survey. The entire survey
no. 42/10 is not owned and possessed by the plaintiffs exclusively.
Around the time the suit was instituted, the plaintiffs tried to
plant some stones for the purpose of claiming more land than that
would fall to their share. Survey of the property into plots is not
in accordance with the Deed dated 22/11/1943 and would tend to
allot to the plaintiffs an area which is much more than that would
fall to their share, a position which the defendants or their
predecessors never agreed to. In the Survey holding no. 42/9,
there is residential house owned and held by the defendants and
by virtue of the arrangement which is provisional, the defendants
besides holding Survey No. 42/9 also held Survey No. 42/10 to
large extent. The access of the defendants to Survey No. 42/9 is
through the said Survey No. 42/10. The suit as filed is not
maintainable, since the plaintiffs seek to claim specific portion of
the entire property without any deed or decree supporting them.
There has been no extension legally or illegally on the southern

side of the house of the defendants and the structure of the palm
leaves, in which defendants stored firewood and other material,
does not encroach on the alleged land of the plaintiffs. There is
no encroachment, as falsely alleged. The plaintiffs are acting on
assumptions and conjectures and are not entitled to any reliefs.
7. Following issues were framed by the trial Court :
“1. Whether plaintiffs prove that plaintiffs are
owners in possession of suit property bearing No.
42/10 exclusively ?
2. Whether plaintiffs prove that defendants
constructed illegal extension on southern side of
their house by constructing a structure covered
with palm leaves and used to store fire wood and
other materials and encroached to the extent of 4
mts., on plaintiffs land on its northern side ?
3. What relief? What order ?”
ADDITIONAL ISSUE
4. Whether plaintiffs prove that defendants in
February 2000, further encroached in plaintiffs
property towards south eastern side to the extent of
13.50 sq. mts. by placing loose stones as shown in

plan of Engineer Bhende?”
8. Upon consideration of the entire evidence on record,
the Trial Court held that the plaintiffs proved that they are
owners in possession of the suit property bearing Survey No.
42/10 exclusively and that the defendants constructed illegal
extension on southern side of their house by constructing a
structure covered with palm leaves for storing firewood and other
materials and thus, encroached to the extent of four metres on
the plaintiffs' land, on its northern side and in February, 2000
further encroached in the plaintiffs' property towards the southeastern
side to the extent of 13.50 square metres by placing loose
stones as shown in the plan of Engineer Bhende. All the issues as
framed by the trial Court were answered in affirmative. The suit
was decreed in terms of the prayer as made by the plaintiffs in
the suit.
9. Aggrieved by the judgment and decree of the Trial
Court, the defendants filed Regular Civil Appeal No. 42/2001
before the District Court, South Goa, Margao. The First Appellate
Court formulated the following points for determination :
“1. Had the plaintiffs proved that by the deed of

22.11.1943, the property Mandxemelinga was
partitioned into equal parts by metes and bounds ?
2. Had the plaintiffs proved that they are the
exclusive owners of survey no. 42/10 ?
3. Had the plaintiffs proved that they are
entitled for mandatory injunction as prayed for ?”
10. Upon consideration of the material on record, the
First Appellate Court held that the plaintiffs had not proved that
by the said Deed of 22/11/1943, the property 'Mandxemelinga'
was partitioned in equal parts by metes and bounds. The First
Appellate Court further held that the plaintiffs could not prove
that they are exclusive owners of Survey No. 42/10 or that they
are entitled to mandatory injunction as prayed for. All the points
framed by the First Appellate Court were answered in the
negative. Ultimately, the appeal was allowed. The judgment,
order and decree of the Trial Court was quashed and set aside.
Regular Civil Suit No. 39/1986/C was dismissed.
11. The said judgment, order and decree dated
21/01/2001 of the First Appellate Court has been impugned in the
present Second Appeal, which has been admitted on the following
substantial questions of law :

“(1) Whether the fundamental document, namely,
Escritura de Divisao (Deed of partition) having
direct bearing on the decision of the case, has been
misconstrued as a declaratory document ?
(2) Whether exclusive enjoyment of separate
specific portion of the property, surveyed under
Survey No. 42/10, being undivided part of subject
matter of Escritura de Divisao (Deed of Partition
date 22.11.1943) having direct bearing on the
decision of the case, over a period of 40 years,
creates exclusive rights in Survey No. 42/10, to the
exclusion of one and all ?”
12. Mr. Dessai, learned Senior Counsel appearing on
behalf of the plaintiffs submitted that the Deed of Division, in
clear terms, mentioned that the parties are not willing to continue
to enjoy the said properties in common for more time and that
they divide and allot the said properties. He, therefore, submitted
that this was not just a Deed of Division, but it was a Deed of
Partition. He invited my attention to the promulgated survey
records, which are at Exhibit PW1/E-colly which reveal that
particular survey holdings from the said property mentioned in

the Deed of Partition are recorded in the name of the plaintiffs,
whereas other particular survey holdings which are of the same
property have been recorded in the name of the defendants. He
pointed out that the defendants who have their house in Survey
No. 42/9 also claim that the said survey holding belongs to them.
He submitted that this partition as per the survey records was
pursuant to the Deed of 1943, though survey numbers were not
there at that time. According to him, if there was no such
partition then there could not have been separate survey
holdings, some in the name of the plaintiffs and some in the name
of the defendants. He submitted that since 1943 i.e. for more
than 30 years, the parties have been in possession and enjoyment
of the said plots from the said property in the manner as shown in
the survey records. He further submitted that even otherwise if
the property is still taken to be common property of the plaintiffs
and defendants, the defendants could never have altered the
position by extending their house. He submitted that the
evidence on record duly established the extension done by the
defendants towards the southern side and also towards the northeastern
side. Learned Counsel submitted that the First Appellate
Court did not consider the arrangement between the parties;
unchallenged survey records; the presumptions under Section
105 of the Land Revenue Code and Section 114 of the Evidence

Act and the principle of estoppel under Section 115 of the
Evidence Act. He submitted that as per the deed of 1943, there
was partition, though details were not mentioned in the same. He
submitted that the Trial Court, on the basis of the evidence on
record, considered the possessory rights vis-a-vis the Deed of
1943 and held that the plaintiffs are exclusive owners of the suit
property bearing Survey No. 42/10 and thus decreed the suit. He
submitted that the First Appellate Court did not consider the
arrangement between the parties. Learned Senior Counsel urged
that in terms of Article 2180 of the Portuguese Civil Code (the
Code, for short), a co-owner has a right to partition. He
submitted that the mode of partition is given in Article 2181 of
the Code. He relied upon an extract of a decision of the High
Court of Lisbon published “Boletim Do Ministerio Da Justice”
No. 3 - November 1947, pages no 268-271. Learned Counsel also
relied upon the Judgment dated 14/02/2014, passed by the
learned single Judge of this Court in Second Appeal No. 21/2009.
He submitted that the possession of the plaintiffs was established
right from 1943. According to him, the impugned judgment
conflicts with the mandate of Sections 38 and 39 of the Specific
relief Act. and, therefore, the impugned judgment of the First
Appellate Court is perverse and arbitrary and that both the
substantial questions framed by this Court be answered in the

affirmative and the judgment of the Trial Court be restored.
13. On the other hand, Mr. Mascarenhas, learned Counsel
appearing on behalf of the defendants submitted that a bare
perusal of paragraph 2 of the plaint reveals that according to the
plaintiffs, the property was divided into two equal parts by means
of the Deed of Partition of 1943. He further pointed out that
paragraph 2A added subsequently, however, shows that the
property was not divided into two equal halves, but into various
plots and that some plots were allotted to the plaintiffs and some
to the defendants. He submitted that, therefore, there is
contradiction between the pleadings inter se. He further
submitted that after the area of each survey holdings said to be
allotted to the plaintiffs and those said to be allotted to the
defendants is calculated, then it would be seen that the area of
the survey holdings which the plaintiffs claimed to have been
allotted to them is very vast as compared to those which are said
to be allotted to the defendants. He submitted that initially in the
plaint, exclusive ownership was claimed only to Survey No. 42/10.
He further submitted that the Trial Court went into the case of
oral partition, which was nowhere pleaded in the plaint.
According to him, if the case of settled possession by prescription
was pleaded, then, it would have been a different thing. He

submitted that even if the property was intended to be partitioned
then, in the Partition Deed, at least, it would have been
mentioned like, for example, northern half to one party and
southern half to the other party, which was not there. Learned
Counsel submitted that various members of the family have their
houses in the entire property and are in exclusive possession of
their houses with the surrounding land. He pointed out that there
was no document at all to establish that the survey no. 42/10
exclusively belonged to the plaintiffs. He invited my attention to
the provisions of Sections 91 and 92 of the Evidence Act and
urged that these provisions are complete answer to the suit. He
submitted that the Deed of Partition speaks for itself and nothing
can be added to the same by way of oral evidence. He, therefore,
submitted that the question no.1 is bound to be answered in the
negative, whereas substantial question no. 2 cannot at all arise
because that is not the case pleaded. He, therefore, submitted
that there is no substance in the appeal and the same be
dismissed.
14. Learned Counsel for the defendants has relied upon the
following judgments:-
(a) State Bank of India Vs. Mula Sahakari
Sakhar Karkhana Ltd. [(2007) 0 AIR (SC) 2361]
SA57/04
… 16 …
(b) Oral Judgment dated 09/02/1998, of the Single
Judge of the High Court of Bombay at Goa, in
Second Appeal No. 11/1994 (Silvestre
Mascarenhas and others Vs. Smt Shantu
Locmu Fotto Dessai and others)
(c) Janku Vs. Nagnoo. [(1986) 0 AIR (HP) 10]
(d) P. Kaliappa Gounder Vs. Muthuswami
Mudaliar. [(1987) 0 AIR (Mad) 24]
(e) Brajananda Pradhan Vs. Sachidananda
Pradhan. [(1990) 0 AIR (Ori) 29]
(f) Bhagwanrao s/o Jijaba Auti Vs. Ganpatrao
s/o Mugaji Raut and anr. [(1987) 3 Bom. C.R.
258]
(g) Maria Margarida Sequeria Fernandes and
ors. Vs. Erasmo Jack de Sequeria (Dead)
through L.R.s. (2012 AIR SCW 2162)
15. I have perused the material on record and considered
the submissions advanced by the learned Counsel for both the
parties and also the Judgments relied upon.
16. A perusal of the Deed of Partition dated 22/11/1943
which is at Exhibit PW1/A-colly along with translation reveals that

the parties were not willing to continue to enjoy the properties
mentioned therein in common for more time and hence, they
divide and allot the said properties. The first party, namely
Renelio Estrelito de Jesus Vas and his wife Orfilia Lucinda do
Rosario Mazarelo, has been allotted half of all the properties,
whereas the second and third parties namely Guilhermina de Sa,
Pedro Francisco Roque Assiz Vas,, Epifania Vas and Martina Vas
have been allotted the other half. However, there is nothing
mentioned in this Deed as to the location of each half whether it is
northern half, southern half, eastern half or western half allotted
to each of the parties. There is no plan of division annexed to the
Deed. No doubt, there is resultant inscription in the office of
Land Registration of the Judicial Division of Quepem which is
dated 03/01/1944. Accordingly, half of the properties have been
inscribed in favour of the said Guilhermina de Sa, daughter of
Francisco Roque Assis Vaz, Lusitana Henriqueta Vas, Epifania Vas
and Martinha Vas. There is no mention in this inscription
documents as to on which side, the said half lies. The
descriptions of the properties mentioned herein are all entire
properties, one of them being no. 21741. Thus, half of the
undivided properties have been allotted to the plaintiffs and
accordingly have been inscribed in their names. The above are
title documents and duly establish that the half of the said

properties mentioned in the deed of partition belong to the
plaintiffs. However, the above documents do not in themselves
establish that under the Deed of Partition, the said two halves
were physically partitioned, by metes and bounds.
17. In paragraph 2 of the plaint, it has been pleaded that
the property was divided and partitioned between the plaintiffs'
family and defendants' family in two halves, but in paragraph 2A
added subsequently to the plaint, the plaintiffs averred that at the
time of partition, the property was divided in such a way that
alternate plots were allotted to the plaintiffs and defendants and
that survey holdings no. 42/2, 42/4, 42/7, 42/9 and 43/16 were
allotted to the defendants, whereas survey holdings no. 42/3,
42/1, 42/5, 42/6, 42/8, 42/10 and 43/10 were allotted to the
plaintiffs. PW1, the plaintiff no. 1(b), in her cross-examination,
deposed that shares of plaintiffs and defendants are equal.
However, a perusal of the survey records reveals that the total
area of Survey holdings allegedly allotted to the plaintiffs is much
more than the plots allegedly allotted to the defendants.
Therefore, paragraph 2 of the plaint where it is averred that the
property was divided into two equal halves and paragraph 2A of
the plaint wherein specific survey holdings are mentioned, are
contradictory to one another. Similarly, the deposition of PW1 as

above is contrary to the pleading that the property was divided
into two equal halves. Even otherwise, it is well known that the
survey records cannot confer title. Thus, on the basis of survey
records, the plaintiffs cannot claim to be the exclusive owners in
possession of the said survey holdings mentioned in paragraph 2A
of the plaint.
18. (a) Section 91 of the Evidence Act provides as under :
“91. Evidence of terms of contracts, grants and
other dispositions of property reduced to form
of documents.- When the terms of a contract, or of
a grant, or of any other disposition of property, have
been reduced to the form of a document, and in all
cases in which any matter is required by law to be
reduced to the form of a document, no evidence shall
be given in proof of the terms of such contract, grant
or other disposition of property, or of such matter,
except the document itself, or secondary evidence of
its contents in cases in which secondary evidence is
admissible under the provisions herein before
contained.”
(b) Section 92 of the Evidence Act provides as under :
“92. Exclusion of evidence of oral agreement. -
When the terms of any such contract, grant or other
disposition of property, or any matter required by law
to be reduced to the form of a document, have been

proved according to the last section, no evidence of
any oral agreement or statement shall be admitted,
as between the parties to any such instrument or
their representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting
from, its terms:
Proviso (1): Any fact may be proved which would
invalidate any document, or which would entitle any
person to any decree or order relating thereto; such
as fraud, intimidation, illegality, want of due
execution, want of capacity in any contracting party,
want or failure of consideration, or mistake in fact or
law;
Proviso (2): The existence of any separate oral
agreement as to any matter on which a document is
silent, and which is not inconsistent with its terms,
may be proved. In considering whether or not this
proviso applies, the Court shall have regard to the
degree of formality of the document;
Proviso (3): The existence of any separate oral
agreement, constituting a condition precedent to the
attaching of any obligation under any such contract,
grant or disposition of property, may be proved;
Proviso (4): The existence of any distinct subsequent
oral agreement to rescind or modify any such
contract, grant or disposition of property, may be
proved, except in cases in which such contract, grant
or disposition of property is by law required to be in
writing, or has been registered according to the law

in force for the time being as to the registration of
documents;
Proviso (5): Any usage or custom, by which
incidents not expressly mentioned in any contract are
usually annexed to contracts of that description, may
be proved;
Provided that the annexing of such incident
would not be repugnant to, or inconsistent with, the
express terms of the contract.
Proviso (6): Any fact may be proved which shows in
what manner the language of a document is related
to existing facts.”
19. In the case of “Mula Sahakari Sakhar Karkhana
Ltd.”(supra), the Hon'ble Apex Court has held that a document,
as is well known, must primarily be construed on the basis of the
terms and conditions contained therein and that it is also trite
that while construing a document the Court shall not supply any
words which the author thereof did not use. It has been further
held that surrounding circumstances are relevant for construction
of a document only if any ambiguity exists therein and not other
wise. Therefore, it is evident from the above provisions of law that
nothing can be added to the Deed of Partition by way of oral
evidence. The said document at Exhibit PW1/A-colly speaks for
itself. No doubt, there were no survey numbers as mentioned in

paragraph 2A, at the time of said Deed of Partition. But the said
Deed of Partition, in itself, does not show that the property was
divided into various plots, of various dimensions, lying at
particular places, and that some such plots were allotted to the
plaintiffs and some to the defendants. In the circumstances
above, the first substantial question of law gets answered in the
negative, since truely, the said Escritura de Divisao (Deed of
Partition) at Exhibit PW1/A-colly is merely a declaratory
document.
20. There is no pleading in the plaint that exclusive enjoyment
of separate specific portion of the property surveyed under no.
42/10, for over a period of 40 years, which other wise is undivided
part of the subject matter of Escritura de Divisao, creates
exclusive rights in survey no. 42/10 to the exclusion of one and
all. Though the plaintiffs have averred in the plaint that they are
owners in possession of the suit property bearing survey no.
42/10, exclusively, no declaration has been sought to the effect
that on account of long exclusive possession of the property for
over a period of 40 years, the plaintiffs have become owners of
the same. The case, as pleaded in the plaint, is contrary to the
above, to the effect that by the Deed of Partition itself, the
property was divided and allotted to the parties, and accordingly
SA57/04
… 23 …
the plaintiffs are exclusive owners in possession of the plots
mentioned in paragraph 2A of the plaint. In such circumstances,
the second substantial question of law as framed, does not arise.
21. It was contended by the Counsel for the plaintiffs that by
virtue of the Deed of Division dated 22/11/1943, the properties
came to be divided and allotted to the parties and subsequently
the same plots as partitioned came to be shown separately in the
survey records. But the deposition of PW1, the plaintiff no. 1(b),
is contrary to the above. PW1 says that 'Mandxemelinga' is also
divided into two parts by virtue of said Partition Deed and it was
also done earlier orally and they were in possession of the portion
allotted to them. Such oral partition prior to the Deed of Division
has not been pleaded. PW1 has further deposed that the
separation and allotment of plots as stated by her was not stated
in the Deed of Partition. PW1 has stated that the property was
orally partitioned in the year 1942, as informed by her father-inlaw.
She has stated that even before Partition Deed, as per oral
partition, the suit property was enjoyed separately. PW2,
Maximen D'Costa, has also stated that the plaintiffs and
defendants are in possession of the properties separately from
1942 by oral partition and from 1943 by Deed of Partition. If that
be so the question arises as to why in the written Deed of Division
SA57/04
… 24 …
dated 22/11/1943, the said position as per oral partition done in
1942 is not mentioned. The plaintiffs are not sure about their case
and their case of oral partition is not at all reliable.
22. Article 2180 of the Code lays down that no co-owner
shall be compelled to continue with lack of division and he may
seek partition at any time, except (1) in the case of marriage or
society, as provided by the respective stipulations in this Code;
(2) if the thing or right is by nature impartible. Article 2181 of the
Code says that the division of a common thing may be made
amicably or by arbiters nominated by the consent of parties, the
latter not being incompetent. Article 2182 provides that in case
the division is being made by arbiters, the latter should make up
lots with perfect equality, both in relation to the quantity and in
relation to the quality of things, by avoiding as far as possible
owelty in the from of money. Article 2183 of the Code provides
that in the event it is not possible to divide a thing and if the coowners
do not agree that it may be allotted to one of them, the
others being compensated by money, the thing shall be sold and
the price apportioned. Article 2184 says that the division or
immovable assets is null if it is not made by a public deed of
proceeding. There is no dispute that a co-owner cannot be
compelled to continue with joint ownership and possession. He
SA57/04
… 25 …
can seek partition at any time. In the present case, however, the
plaintiffs have not sought for partition but it is their case that by
Deed of partition dated 22/11/1943, the properties have already
been partitioned and allotted. It is nowhere pleaded in the plaint
that the parties had consented that various portions having
specific area and specific shapes be allotted to the plaintiffs and
others to be allotted to the defendants. There is no pleading at all
in the plaint that the defendants had agreed for a bigger area to
be allotted to the plaintiffs. In terms of Article 2184 of the Code,
the division of immovable assets, if it is not made by a public
deed, is a nullity. As already observed earlier, the Deed of
Partition dated 22/11/1943 is only a declaratory document and
there is no actual and physical partition by virtue of the same.
23. The learned Counsel for the plaintiffs has not produced
before this Court the complete Judgment of the High Court of
Lisbon, but has only produced some extract published in “Boletim
Do Ministerio Da Justica”. It appears that in the said case it has
been held that the law permits that the co-owner may enjoy or not
enjoy the common property, as he may decide or wish, within his
right of co-ownership and that an oral or even tacit agreement
amongst co-owners as to the enjoyment of the common property
is valid. In the present case as already stated above, the evidence
SA57/04
… 26 …
of the plaintiffs, on oral partition of the properties, is not reliable.
By judgment dated 14/02/2014, passed by the learned Single
Judge of this Court in Second Appeal No. 21/2009 ( Motu Custa
Molic Vs. Shri Shrinivas Raghoba Molic and two others), it
has been held that in view of Article 2184 of the Code, there
cannot be an oral partition of immovable property under the law
in force in Goa. It has been further held that unless there was a
clear severance and/or fragmentation of the property with the
other co-owners who were in exclusion of the specific portions to
the exclusion of the other co-owners, it cannot be accepted that
merely enjoyment of the property would infer that there was an
oral partition of the property. The above judgment does not help
the plaintiffs in any way. Merely because the promulgated survey
records in Form No. I & XIV show specific portions in the names
of the plaintiffs, that does not mean that there is clear severance
or fragmentation of the property and that such portions are
exclusively possessed and enjoyed by the plaintiffs named in the
survey record to the exclusion of the other co-owners not named
therein. The presumption under Section 105 of the Land revenue
Code is rebuttable. The own document of the plaintiffs viz the
inscription certificate in Exhibit PW1/C-colly proves that the
property allotted to the plaintiffs is undivided half of the entire
property. In Second Appeal No. 11/1994, in the case between
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“Silvestre Mascarenhas and others Vs. Smt. Shantu Locmu
Fotto and others”, vide judgment dated 09/02/1998, the learned
Single Judge of this Court has observed that the law which is in
force till today in the form of Article 953 clearly provides that the
inscription in the registration of a title conveying ownership,
irrespective of other formalities, operates transfer of possession
of such property in favour of the person in whose name the
inscription stands. Thus, what is transferred by virtue of the Deed
of partition dated 22/11/1943 is nothing but undivided half share
in the property, as mentioned in the inscription document. In the
case of “Janku Vs. Nagnoo” [(1986) 0 AIR (HP) 10], relied upon
by the learned Counsel for the defendants, in the written
statement, the defendants had alleged that a private partition had
taken place about 47 years back, but no deed of partition was
produced by the defendants nor there was evidence to prove as to
when this private partition took place. It has been held that in the
case of co-sharers, every co-sharer has an interest in the whole
property and also in every parcel of it and possession of the joint
property by one co-sharer is, in the eyes of law, possession of all
even if all but one are actually out of possession. A mere
occupation of a larger portion or even of an entire joint property
cannot necessarily amount to an ouster as the possession of one
co-sharer is deemed to be the possession on behalf of all. It is
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further observed that if, however the co-sharers are in possession
of separate parcels of land by some arrangement, then such an
arrangement cannot be disturbed except by filing proceedings for
partition and during these proceedings the proper mode of
partition can be framed and respective possession of the
parties/co-sharers can be respected to the extent to which it is
possible. In the case of “P. Kaliappa Gounder Vs.
Muthuswami Mudaliar” [(1987) 0 AIR (Mad) 24], it is observed
that partition is the intentional severance of the joint ownership
by an unequivocal expression of an intention to bring out
severance in the eye of law and further implementing it by actual
division by metes and bounds. What was held in common as a
single property gets converted into a holding in severalty and in
specie. Joint ownership turns into ownership in severalty and in
specie. It has been held that if this common ownership is to be put
an end not only in theory but also in practice, there must be
primarily severance of the joint ownership in the eye of law,
followed by actual physical division. It is observed that it is not
unusual for parties holding properties jointly or in common to
have separate enjoyment of portions for the sake of sheer
convenience, but such separate enjoyment of convenience cannot
be equated to partition in the eye of law and in fact, so as to say
that joint ownership has been put to an end to and in its place
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ownership in severalty or in specie has come into existence. It has
been held that separate enjoyment for the sake of convenience is
one thing and partition in the eye of law is another. The latter
carried with it the legal incidents of mutating the joint ownership
and has to pass through and satisfy a more rigorous test in law
and on facts. As has been rightly submitted by the learned
Counsel for the defendants, there is no pleading in the plaint that
the said property was orally partitioned into various plots, as
mentioned in paragraph 2A of the plaint. There is no pleading of
oral partition either prior to or after the said Deed of Partition.
The Deed of Partition can be construed as defining the shares of
the parties, but it cannot be construed to hold that there was
physical division of the properties done under the said document.
Therefore, the plaintiffs ought to have filed the suit for
partitioning the properties and for separate possession of the
shares. The said judgment of the High Court of Lisbon cannot
help the plaintiffs. In the case of “Maria Margarida Sequeria
Fernandes and Ors” (supra), the Hon'ble Supreme Court has,
inter alia, held that possession is important when there are no
title documents and other relevant records before the Court, but,
once, the documents and records of title come before the Court, it
is the title which has to be looked at first and due weightage be
given to it. It has been held that possession cannot be considered
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in vacuum.
24. It was the case of the plaintiffs, as pleaded in paragraph
4 of the plaint that some time in March 1984, the defendants
made illegal extension to their house, there by encroaching upon
the plaintiffs' land. But, the suit was filed in February 1986, only
for permanent and mandatory injunction. The suit has not been
filed on the basis of claim for co-ownership but on the plea of
exclusive ownership and possession. As on the date of filing of the
suit the plaintiffs were not in possession of the said alleged
encroached portion.
25. In the circumstances above, the second substantial
question of law also gets answered in the negative.
26. In the result, therefore, there is no merit in this
Second Appeal. The same is, therefore, dismissed. However, in
the facts and circumstances of the case no order as to costs.
U. V. BAKRE, J.
SMA
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