SMT. PASCOELA FERNANDES Vs. DR. WAMAN SINAI XELDENKAR
LAWS(BOM)-2017-3-254
HIGH COURT OF BOMBAY
Decided on March 08,2017

Smt. Pascoela Fernandes Appellant
VERSUS
Dr. Waman Sinai Xeldenkar Respondents

JUDGEMENT

R.P.SONDURBALDOTA,J. - (1.) The appellants are the original plaintiffs and the respondents are the original defendants in Regular Civil Suit No. 26/1993/B filed in the Court of Civil Judge Junior Division, Quepem. The parties shall hereinafter referred to by their original nomenclature.
(2.) By their suit, the plaintiffs sought declaration, that the holding under survey No. 71/3 (part), 71/4 (part) and 71/5 (part) as shown in the plan Ex.A of Assolda village of Quepem Taluka are part and parcel of their property, for a direction to the survey authorities to separate the said portion of survey nos. 71/3, 71/4 shown in plan Ex.A and record the same along with survey no.71/5 in the name of plaintiffs by deleting the names of the defendants from the occupant's column, and for permanent injunction to restrain the defendants, their family members, relatives, agents and servants from interfering with or disturbing the possession of the plaintiffs in respect of the suit property.
(3.) The case of the plaintiffs as pleaded in the plaint is that, by the sale-deed dated 16th January, 1964 Late, Marcelino Fernandes and Late, Francisco Fernandes purchased the property known as "Culnem" or "Botvem" situate at Assolda Village. The property is also described as Registration No. 1170 and Matriz Nos. 16 and 17. The plaintiffs are the successors of Francisco and Mercelino. The property consists of paddy field and barren land having fruit and non-fruit bearing trees. The bharad portion of the property consists of plantation of cashew trees, bamboo clusters and jungle trees. According to the plaintiffs, it has been in their use and enjoyment since the date of purchase and is surveyed under number. 71/3 (part), 71/4 (part) and 71/5 (part). The paddy field lies at a level lower to the bharad land and is cultivated by the plaintiffs. The bharad land portion was wrongly surveyed as part of survey no.71/3 (part), 71(4) (part) and 71(5) (part) in the name of the defendants who claim to have obtained some land of Communidade of Assolda which is situate on the western boundary of Matriz No. 16. When the original purchasers learnt about the error in the survey, they raised objections in D.C. Case No. 78/Assolda. That was dismissed for default and appeal preferred therefrom also came to be dismissed. The second appeal preferred therefrom was also unsuccessful. Thus, the objection to the survey had been dismissed without holding any enquiry and without adjudicating the rights of the plaintiffs. Despite the wrong entry in the revenue records, the plaintiffs continued to cultivate the paddy field and enjoy cultivation in the barren land since the time of purchase. Therefore, they sought the reliefs as described at para-2 above.;


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