9911796707
TMI Blog2015 (1) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... ve noted the fact that the Appellants have asserted their right on the basis of the court auction but have failed to give a legal effect to the title asserted by the Appellants. Since the Appellants have purchased the property through a Court auction and that it is the policy of legislature, as emphasized by the Apex Court in the case of Janatha Textiles Ors. V/s. Tax Recovery Officer Anr [ 2008 (5) TMI 12 - SUPREME COURT] to protect and to give effect to the Court auction, the Courts below ought to have considered the issue seriously. It will be against the legislative policy and the mandate of the Apex Court to deprive the Appellants the benefit of their right accrued through a Court auction. The High Court found that the lower courts erred in not upholding the appellants' title acquired through the court auction and set aside their judgments. Prescription based on registration and Article 528 - The Courts below have found that except for stray sentence that Appellants were in possession for 30 years the claim is not elaborated. It is difficult to find fault with the reasoning of the learned Trial Judge. Merely by way of scattered sentences in plaint a case of prescription ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Almeida, which resulted in a decree against Aluisio Caetano Barreto Xavier. In execution of the decree the property in question was put up for sale in a Court auction. On 29 October 1945, the original plaintiff, father of the present appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic 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 South by the plot of the Communidade, being registered in favour of Diogo Feleciano N.J. do R. Pereira, in view of the gift made by Francisco Paulo Pereira. 6. The defendant Diogo Feleciano started a construction on 2/09/1964, occupying an area indicated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror 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 second based on the registration of the property in the land registration office and the claim of the Appellants of acquiring title of prescription in view of Article 526 of Civil Code. As far as the first additional ground is concerned, it was urged before the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecedence, 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 publicity by proclamations and notices. The proclamations are to be affixed on the door of the regedor (Talathi) and also to be affixed on the door of the premises. Notices are to be published in the most widely read newspapers. In the notices, particulars of the property are to be provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Court can go into the issue and reopen the Court auction which none of the parties had challenged. There is one more important aspect of the present case which has direct bearing on this question. In the present appeals the representative of Diogo Pereira have chosen not to appear even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon 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 Courts below have found that except for stray sentence that Appellants were in possession for 30 years the claim is not elaborated. It is difficult to find fault with the reasoning of the learned Trial Judge. Merely by way of scattered sentences in plaint a case of prescription cannot be pleaded. It is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
