1. 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?'
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]
(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.
(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 otherwise. 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 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-in-law. 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 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 co-owners 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 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 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 '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 further observed that if, however the co-sharers are in possession of separate
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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 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 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.