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TMI Blog2015 (1) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... disputes. The suit was drafted as per the procedure and practice of drafting plaint prevalent at that time. The defendants were in two groups. First one claiming through Diogo Feliciano Manuel Jacinto do Rozario Pereira and the second one claiming through Xec Amod Haji Abdul Rahim. 4. Facts leading to this appeal begin almost a century ago. In the year 1913, one Francisco Pereira applied for a grant of an aforamento from the Communidade of Margao. The application was granted on 13 May 1914. Sometime in December, 1920, Francisco Pereira agreed to sell the aforamento, both of himself and his daughter Carlota, to one Xec Ahmed Haji Abdul Rahim and put Xec Ahmed Haji Abdul Rahim in possession. The document of 1920 was allegedly destroyed by white ants and a fresh document was executed on 16 January 1929, recording the contents of 1920 agreement. The plots in question were registered as no. 28577 and 28578. Salimabi, widow of Xec Amod sold the plots to one Aluisio Caetano Barreto Xavier by Sale Deed dated 14 March 1940. On 22 February 1943, Francisco Pereira gifted property to one Diogo Pereira. 5. There was a civil dispute between Aluisio Caetano Barreto Xavier and one Joaquim Jose A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Salema against Aluisio C. Barreto Xavier and wife. 3. The plaintiffs filed against the defendant Xec Ismail and others a suit for restitution of possession and, as a consequence, the possession of the said property was awarded to him. 4. The rustic property aforamento, bounded on the east by a road, on the west by Rua de Saudades, on the north by Diogo Rodrigues and on the South Aluisio C.J. Barreto Xavier, existing in an urban property (house), is registered in the Revenue Office property Registration (Matriz) under the number 510, the urban property being under the number 570. 5. Two properties Pagifondi are registered; one under the number 28.577, bounded on the east and south by the property of the Communidade on the north by the plot marked out at the petition of Francisco Paulo Pereira, and on the west by a road which starting from the door of the cemetery of the town (villa) of Margao, goes to the village Aquem, and another registered under the number 28.578, bounded on the east by the property of the communidade, on the west by a road which starting from the cemetery goes to the village Aquem, on the north by the plot leased to Pedro Fernandes Pereira, and on the Sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d title could be conferred upon the Appellants. The Court found that inscription in favour of Diogo Pereira prevailed over the one in favour of Xavier and, therefore, Xavier did not have any title to the property. The Appellate Court found that there was no error in the decree passed by the Trial Court and, accordingly, dismissed the Appeal. Thereafter these two second appeals have been filed. 10. I have heard Mr. M.B. Da Costa, the learned Senior Counsel for the Appellants in Second Appeal No. 122/2004 and Mr. Sudesh Usgaonkar, the learned Counsel for the Appellants in Second Appeal No. 126/2004, and Mr. M. Amonkar, the learned Counsel for the respondents no. 5(c)2 & 5(c)7 in Second Appeal no. 122 of 2004 and for respondents no. 25(i) & 28 in Second Appeal No. 126 of 2004. None appears on behalf of the other respondents. 11. Mr. Da Costa sought leave to amend the appeal memo to place on record the additional substantial questions of law, which were tendered in the Court earlier. The additional questions of law are regarding the claim of the Appellant based on Court auction and the fact that he was a stranger to the execution proceedings and bonafide purchaser for value, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays, one on the door of the Court and the other on the door of the regedor (talathi) of the parish in which the assets are situated. In case of buildings, a copy of the proclamation shall be affixed on the door of the premises. The notices shall be published, with the same antecedence, in two editions of the most widely read newspaper in the place of the location of the assets, or the nearest locality where there is none at the place. In the proclamations and notices the name of the judgment debtor shall be stated, the office where the proceedings are pending and the date and time and place of auction or opening of the proposals. Where the assets are movables, their nature shall be indicated. Para 1 Outside Lisbon, Porto and Funchal the auctions shall be held on Sunday unless it is found convenient to hold it on any other day. Para 2 Where an appeal is pending against the judgment, this fact shall also be mentioned in the proclamations. The procedure adopted under the Portuguese Civil Code for holding a Court auction is more or less similar as the one enumerated in Civil Procedure Code of 1908. Article mandates that the day and time of auction has to be given maximum publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts must strive to give effect to the legislative policy and uphold the right of a stranger purchaser at the auction held by the Court. By reopening such sales casually, the Courts will introduce an element of serious uncertainly as regards validity of Court auction, which will defeat the object mentioned above. This position of law was summarised by the Apex Court in the case of Janatha Textiles & Ors. V/s. Tax Recovery Officer & Anr. reported in (2008) 12 SCC 582 after following the decision of Privy Council in the case of Nawab Zain-Ul-Abdin Khan V/s. Mohd. Asghar Ali Khan reported in 1 (1887-88) 15IA 12 and the decision in the case of Janak Raj V/s. Gurdial Singh & Anr. (1967) 2 SCR 77. It is therefore clear that the Appellants were bonafide purchasers and they derived their title from the Court auction. 16. Both the Trial Court and the Appellate Court however went to examine the merits of the transactions in respect of the property prior to the auction sale. Both the Courts discussed the factual position in great detail to conclude that Xavier, whose property was sold, could not have acquired title as Xec Amod himself had no title to convey it. The question is whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected by the Courts below on the ground that there are no adequate pleadings. Mr. Da Costa firstly relied to the plaint wherein it is averred that the Appellants are in possession for 30 years since they were put in possession and they have acquired right of prescription. Secondly, he also relied upon factum of registration and the article 526 of the Portuguese Civil Code. Mr. Da Costa submitted that the finding of the Courts below that right of a prescription was not specifically pleaded is incorrect as in paragraph 21 of the plaint, the factum of possession for 30 years was specifically pleaded. He also submitted that in the prayer clause the right of prescription on the ground of possession of more than 30 years has been asserted. He also submitted that the Courts below confused between right by prescription and right by adverse possession. 19. The Trial Court has not accepted the claim of the Appellants based on prescription by possession on the ground that no particulars are pleaded. It may be that the Appellants have not pleaded adverse possession but even the claim of prescription by way of possession is not a pure question of law but a question of fact as well. The Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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