ISMAIL ADAM KHAN Vs. KASHINATH GOVIND NAIK
HIGH COURT OF BOMBAY
Ismail Adam Khan
Kashinath Govind Naik
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M. S. Sonak, J. -
(1.) Heard Mr. Prasheen Lotlikar for the appellants and Mr. Guru Shirodkar for the respondent nos. 1(a) to 1(g) and 2.
(2.) This Second Appeal was admitted on 11.12.2003 on the following substantial questions of law:
I. Whether the First Appellate Court could have declared that the appellants had no right, title or possession in respect of Survey No. 46/3, merely on the strength of the boundaries mentioned in the Sale Deed dated 20.08.1973:
a. in the absence of any evidence to show that the property surveyed under Survey No. 46/3 belonged to the Vendors of the Respondents no. 1 and 2.
b. in the absence of any identification of the area of 500 square metres admittedly purchased by the respondents no. 1 and 2, with reference to any plan or crocky.
c. in the face of the fact that the Survey no. 46/3 had been separately surveyed from Survey No. 46/4 with the name of the Government as 'occupant' and
d. in the face of the fact that in the Old Cadastral Survey the Plots bearing No. 29 and 30 to which undisputably the Survey No. 46/3 corresponded alongwith other survey number, was recorded in the name of the Government .
II) Whether the learned First Appellate Court misdirected herself in taking into account the weakness of the defence, instead of ascertaining whether the Respondents no. 1 and 2 had established the case pleaded by them ?"
(3.) The appellants and the respondent no. 3 i.e. Government of Goa were the original defendants in Special Civil Suit No. 19/1991/A, instituted by the respondent nos. 1 and 2 in the Court of the Civil Judge Senior Division at Bicholim. In the civil suit, the plaintiffs had prayed for the following reliefs:
a) For declaration to the effect that, the land under the Survey No. 46/3 of Valpoi, Taluka Sattari-Goa, is not a separate strip of land but is the part and parcel of the Eastern portion of the property "Canvalacodil" purchased by them from Mr. Vassudeo Mukund Kanekar and his wife Mrs. Asha Vassudeo Kanekar, by the Sale Deed dated 20.08.1973, registered in the Office of the Sub-Registrar of Sattari, Valpoi-Goa, under No.38 of Book No.1 Volume-I, at pages 106 to 211, dated 25.8.1991 and that the Defendant has no right, title and possession over the same.
b) For a permanent injunction restraining the Defendant its agents, servants or any other person acting on its behalf in any manner from disturbing the possession of the plaintiff in respect of the suit property surveyed under No. 46/3 and 46/4.
c) For an order to delete the name of the defendant from survey No. 46/3 and to record the names of plaintiffs therein.
d) For any other order which is deemed fit and proper in this suit.
e) For the costs to be awarded to the plaintiffs.;
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