- (1.) This civil appeal is filed by the appellants as they are aggrieved by the judgment and decree of the High Court of Bombay at Goa passed on 14.9.1998 by the learned single Judge in Second Appeal No. 30 of 1986 raising various questions of law and grounds in support of the same. In this judgment for the sake of convenience the rank of the parties is described according to their position before the trial court. The appellants are the legal representatives of the plaintiff and the respondents are the legal representatives of the defendants. The suit was instituted by the original plaintiff in the Court of Civil Judge, Sr. Division at Quepem (hereinafter referred to as "the trial court") in Civil Suit No.14091 of 1948.
(2.) The relevant brief facts are stated for the purpose of appreciating the rival legal contentions with a view to examine and find out as to whether the impugned judgment of the High Court of Bombay warrants interference by this Court in this appeal in exercise of its jurisdiction under Article 136 of the Constitution of India. The original plaintiff, Inacinha Fernandes filed Civil Suit No. 14091 of 1948 on 1.1.1948 before the trial court for declaration that she is the lawful owner in possession of 1/3rd of the property bearing land registration No.16413 and consequential relief for cancellation of registration in favour of the defendants-respondents in respect of such 1/3rd share in the suit schedule property and to register the same in the name of the plaintiff. Presently the legal representatives of the original plaintiff are before us as appellants. It is the case of the plaintiff- appellants that suit schedule property is bearing land registration No.16413 and the claim of the plaintiff-appellants is that it belonged to three brothers namely, Francisco Fernandes (who was the father-in-law of the original plaintiff), Francisco Fernandes junior and Pedro Sebastiao Fernandes and they owned and possessed the same jointly and in equal shares. The defendant No. 2-Tereza is the daughter of Francisco Fernandes junior and the original plaintiff-Inacinha Fernandes is the wife of Luis Fernandes, the son of Francisco Fernandes, the first brother. It is their further case that on the death of Francisco Fernandes, he was survived by the husband of the original plaintiff. It is their case that on the death of said Francisco Fernandes, the 1/3rd share of the suit schedule property devolved upon Luis the late husband of the original plaintiff and it was accordingly enjoyed by the plaintiff. Further case of the plaintiff is that on account of a debt of Rs.198/- to one Naraina Panduronga Porobo, the property was attached and thereafter the liability was paid by way of subrogation of rights in favour of the father of the first defendant, K.V.P. Shastri who bought this property which was sold in public auction on 26th April, 1935 and thereafter granted aforementioned property in favour of the husband of Tereza, namely, Tomas Fernandes vide perpetual lease. It is the case of the plaintiff that the right of subrogation in favour of the father of the first defendant should have been granted by the defendant No.2-Tereza only in respect of 1/3rd share and not in relation to the entire property.
(3.) The case of the plaintiff was sought to be contested by the defendant No.1 inter alia contending that the claim of the plaintiff is false and ownership and possession of the suit schedule property stands transferred in favour of the defendant No.1 with effect from 26.4.1935 and he had acquired right by way of prescription as it has been enjoyed for 10 years, pursuant to the registration of the suit schedule property in his name. The defendant No.2 also denied the case of the plaintiff and claimed to be in possession pursuant to conveyance thereof by the defendant No.1.;