JUDGMENT
E.S. Da Silva, J.
1. This appeal is directed against the judgment of the learned District Judge, South Goa, Margao, dated 13th January, 1989 in Civil Suit No. 122 of 1981, whereby the learned Judge has dismissed the suit filed by the appellant.
2. The case of the plaintiff/appellant (hereinafter called the appellant) is that they are the owners in possession of a plot of land, situated at Cortali of Sanguem Taluka, described in the Land Registration Office under No. 26737, in the Revenue Office under No. 542 and in the Old Cadastral Survey under No. 209. The said property is surrounded on all four sides by property ‘Patem’ belonging to the Sanguem Municipality. The appellant claims that the property is in their open, peaceful and public possession and enjoyment for the last more than 50 years. There was a cemetry located in the property which was demolished 50 years ago and the new cemetry was built at some other place. Presently the land is barren. In the new survey the suit plot was included in Survey No. 121/0 which was shown in the occupation of the Government. When the appellant learnt about the inclusion, a representation was made on 15-9-1976 to the survey authorities requesting that the plot be given a separate number which application is still pending. It was further pleaded by the appellant that the respondent No. 3, a Medical Officer of the Government Hospital, Sanguem was planning to construct a building on the suit land and for that purpose instructed its agents and contractors to dig pits in part of the land. No consent of the appellant was obtained and the work continued inspite of their protests. The appellant prayed for a declaration of ownership and possession of the suit land for an order restraining the respondents from trespassing therein or from carrying on any construction on the land.
3. The defence of the respondents in the suit was that the suit land is part and parcel of the property ‘Patem’ belonging to the Sanguem Municipality with an area of 5946 sq. metres and surveyed under No. 121. It was denied that the land was belonging and in possession of the appellant. It was stated that the fact that there was a cemetry in the plot does not show that the land belongs to the appellant. It is the respondent No. 2 Government of Goa that is erecting a building in the suit plot to be used as staff quarters for the Primary Health Centre of Sanguem.
4. Mr. Rebello, learned Counsel for the appellant, has firstly submitted that this suit having been originally filed for injunction simpliciter, although later on a prayer for declaration was inserted by way of amendment. After the matter of temporary relief was sorted out by mutual consent, the appellant need not ask for declaration of title in the suit since the same was based on its possession derived from a better title in relation to the title of the respondents. According to the learned Counsel from the evidence on record it was shown that the land in dispute was admittedly corresponding to the property surveyed under No. 209 in the Old Cadastral Survey. It has further come on record from the deposition of D.W. 10 Rajaram Kobleshwar that all the properties of the Municipality of Sanguem are surveyed in the Old Cadastral Survey. The appellant’s witness P.W. 1 Joao Mascarenhas has produced the Old Cadastral Survey which shows that the suit plot stands in the name of the appellant (pg. 16 of the trial Court file). The learned Counsel further contended that the matriz document of the property is also in the name of the appellant and besides a deed of justification of possession dated 1-11-1966 was also on record which refers to the matriz document under No. 542. The learned Counsel invited my attention that the said document of matriz is prior to 1966 and that on the basis of the deed of justification the property was registered in the name of the appellant in the Land Registration Office. The learned Counsel further urged that the oral evidence also established that there was an old cemetry in the suit plot, ruins whereof were also found at the time the respondents started construction of the Government quarters in the plot. On the other hand, learned Counsel urged that it was sought to be proved by the respondents that the property had been gifted to them by the Municipality of Sanguem and subsequently acquired by the Government for the purpose of construction of Hospital staff quarters. However, the document of survey inscription marked as Exh. D-3 (page 55 of the paper-book) shows the relevant entry as bearing old Cadastral Survey No. 176/part. Further at the stage of interim relief the respondents agreed to pay compensation to the appellant if it was established that the property acquired was bearing Old Cadastral Survey No. 209 and in the ownership of the appellant. It was then urged that this shows that actually the plot under Old Cadastral Survey No. 209 had not been acquired by the Government under the aforesaid Notification. It was further urged that the respondents have also not produced any documentary evidence to show that the suit land continued to belong or was in possession of the Sanguem Municipality. The learned Counsel tried to impress upon me that here was a suit filed by the appellant against the respondents to restrain them from interfering with the appellant’s possession in the property on the ground that the possession was of the appellant and that the appellant had a better title in relation to the respondents. Accordingly the appellant has succeeded in establishing both possession and title and at any rate the fact was that the appellant’s title was superior to the right or title qua the respondents. More particularly and with regard to the findings of the trial Court the learned Counsel urged that there was no document to show that the title in respect of the suit land remained with the Sanguem Municipality at the relevant time and therefore in the absence of any evidence in this regard to indicate that the land was belonging to the respondents the registration of the property in the appellant’s name should stand. The learned Counsel urged that admittedly the property was registered in the appellant’s name in the Land Registration Office under No. 26737 and this registration should be held good against everybody except those who could show a superior title over the appellant’s title. On the question of the old survey having not been promulgated it was contended that this could be relevant only against the real owner, at the most against the Sanguem Municipality which purports to have a claim of ownership of the land. It was pointed out in this respect that the respondent’s witness Rajaram had stated that all the properties of the Sanguem Municipality were surveyed in its name. Thus in the absence of any document to show that the property under old Survey No. 209 was standing in the name of the Municipality, obviously the said Municipality could not claim to be its owner. Therefore, the old survey document showing the land in the name of the appellant should be accepted as a piece of relevant evidence in its favour. Further and on the relevancy of the matriz document which the learned trial Judge wrongly held to be executed subsequent to the deed of justification of 1966 it was submitted that nowhere it could be explained by the respondents as to how the two certificates, one being dated 9-11-1966 and the other dated 2-8-1984 came to be issued to the appellant which certificates in terms of section 79 of the Evidence Act are to be accepted as far as the presumption of its genuineness is concerned. Further the document of registration in the Land Registration Office under No. 26737 also refers to the number of matriz as being 542. It was thus submitted that the said document could not be a forgery or fabrication because in 1966 it was difficult to conceive that the appellant could anticipate the dispute which occurred in 1976 or 1978 and for that matter they could have made an attempt to prepare a document in support of its claim. Besides, this document was brought in evidence through the deposition of the appellant’s witness John Mascarenhas on 8-8-1983 and at that time no suggestion was put to him in cross-examination that the same was fraudulent or got-up or that it was a false document manufactured by the appellant.
5. Against this evidence of the appellant, the learned Counsel urged that the respondents were not able to produce either documentary evidence or anything on record to substantiate their claim that the suit land was in the ownership and possession of the Municipality of Sanguem from whom the respondents are purported to have acquired land for the purpose of construction of the Government quarters for the Health Department.
6. The learned Advocate General joining issue with the appellant’s line of arguments, has contended that the findings of the trial Court are not assailable and the conclusions arrived at by the learned Judge need not be disturbed as being sound in law. According to the learned Counsel in a suit for declaration and injunction based on possession the appellant was required to prove first its title and possession. By proving that the appellant had a superior possession it could not prove its title. Thus if the appellant could not prove its title obviously no relief could be granted to the appellant. Besides, the learned Counsel submitted, the appellant was pressing before this Court only for damages and the prayer for declaration had been given up. In the circumstances the trial Court was right in addressing itself to the question of ownership and conclude that the relief for declaration could be granted only if the title and possession was proved. Admittedly, the learned Counsel argued, the appellant was basing its title on a document of declaration of possession of 1966 followed by the registration of the property in the Land Registration Office as well as on the matriz document and the old Cadastral Survey in respect of property No. 209 apart from its alleged physical possession sought to be established through the deposition of its witnesses. In this respect the learned Counsel disputed the validity of the documentary evidence relied by the appellant. So far the matriz document it was contended that the same was under cloud in view of the deposition of D.W. 9 G.G. Kambli. The appellant did not produce also any ‘auto de demarcacao’ so as to identify the property bearing old Survey No. 209. No surveyor was also examined to establish what were the boundaries of the disputed property. Besides the plan at page 16 of the trial Court file does not also show any co-relation with the existing position on the site namely with regard to the Government hospital already located nearby. Hence no presumptive value under the old Cadastral could be availed of by the appellant on the basis of the said document. The survey entries are thus nowhere being also insufficient evidence to prove the appellant’s title. What remained, according to the learned Counsel, was a deed of declaration of 1966 and the registration of the suit plot in the appellant’s name in the Land Registration Office on the basis of such declaration. In this regard the learned Counsel pointed out that the deed of declaration and possession which is from the year 1966 was not contemporary to the organisation of the Cadastral or matriz predial which would thus lead to prescription in favour of the appellant. Further the appellant has not been able to establish what was the source of its title inspite of the fact of the appellant having approached the Court with a claim that it was a title holder of the property and enjoying its possession. It was further contended by the learned Counsel that the Indian Registration Act has come into force as on 1-11-1965 and since then all the provisions of the Old Registration Act were deemed to be scrapped. Therefore, the registration of the suit land in the Land Registration Office which was shown as having been made in 1966 had no value. The learned Counsel argued that even assuming that the land had been earlier granted by the Sanguem Municipality to the appellant for the purpose of cemetry it has not been shown that such grant has bestowed on the appellant the possession of the land because no evidence was produced that the maintenance of that cemetry was in charge of the appellant. The learned Counsel submitted that there are cemetries which are maintained by the Municipalities and therefore even on the aspect of possession the grant by itself would not be sufficient to create even a presumption that the possession of the land meant for the cemetry has been given to the appellant. Thus after the cemetry was discontinued in the land obviously the appellant could not claim even that minimum possession on the disputed land. Besides the learned Counsel tried to impress that on the question of damages this Court would be in a difficult position to grant such damages on the basis of a mere declaration. The Court would be precluded from granting declaration without assessing the appellant’s title and damages could not be granted on the basis of mere possession.
7. My attention was invited to section 34 of the Specific Relief Act and it was submitted that the relief under the said provision is a discretionary relief. The Court could not exercise its discretion in favour of a person who has not been able to establish its title. The learned Counsel also submitted that the appellant in its plaint has claimed to be the owner in possession of the suit plot. It was contended that the appellant nowhere claimed ownership on the basis of prescription. No pleadings could be found in the petition with this regard nor a prayer was made in this respect. Besides if the land in question was a barren land for more than 50 years as per the evidence on record it was difficult to visualize as to how the appellant has been able to assert its possession thereon. Further the appellant has not availed of the remedies which could be resorted as per the law to unsettle the entries in the survey records in favour of the respondents with regard to the suit land. Even on the point of possession the appellant has not been able to establish through any evidence produced on its behalf about the existence of the old cemetry in the suit land. On the other hand, the appellant’s witness No. 1 John Mascarenhas has admitted that the entire plot had been occupied by the Health Department for the construction of staff quarters thus conceding that the appellant has lost its possession. Thereupon when the suit was amended and a prayer for declaration was added the appellant failed to insert at that time a prayer for damages in the alternative. The learned Counsel submitted that in these circumstances it was impossible for the Court to assess the amount of damages to be granted to the appellant in the absence of any evidence to enable the Court to measure the extent of those damages. Besides the learned Counsel contended that under the proviso to section 34 of the Specific Relief Act no declaration was to be granted where the plaintiff being able to seek further relief than a mere declaration of title had omitted to do so. In this case the appellant failed to pray for damages while seeking the declaration of its title. It was further contended that since admittedly the appellant had lost its possession in view of the statement of P.W. 1 John Mascarenhas even no suit for injunction would lie and therefore the amendment sought to be inserted for declaration was not to be granted. The cause of action in the original suit was for possession and therefore declaration could not be availed of because the same being based on possession, that possession had been lost. Hence consequential relief of damages was also not available to the appellant in such circumstances. The learned Counsel further submitted that the appellant when he sought for amendment of the plaint to insert the prayer for declaration inspite of being conscious of the fact that the Government had given an undertaking that it would compensate in case the appellant’s title was proved in its favour failed to add a prayer for damages. Therefore without such prayer no relief of damage could be granted to the appellant under the guise of moulding the relief. The learned Counsel disputed that such undertaking has been given by the respondents to pay compensation to the appellant. Thus, according to the learned Counsel, we are facing a suit simpliciter for declaration filed by the appellant as it stands today since injunction was not available any more because the appellant had lost possession. Hence the benefit of section 34 of the Special Relief Act was not attracted. Reliance was placed in this regard in the case of Ram Saran and another v. Smt. Ganga Devi, . This was a case under the Specific Relief Act filed by the plaintiff against the defendant who was in possession and the plaintiff asked only for declaration of his title. The Court held that where the defendant is in possession of the property and the plaintiff in his suit does not seek possession but merely claims a declaration that he is the owner of the property the suit is not maintainable.
8. I have considered the rival submissions canvassed across the bar but I do not feel it necessary to deal with each of the several contentions and points of law raised by the learned Counsel in respect whereof I have made a detailed reference only for the sake of record. In my view this appeal can be disposed of on the basis of the evidence available on the file and tested in the light of well known legal principles applicable to the relevant issues.
9. At the very outset I must say that, this being a suit originally instituted by the appellant for permanent injunction simpliciter based on possession wherein no declaration is required to be sought, the question of applicability of section 34 of the Specific Relief Act does not seem to arise. Indeed, as rightly pointed out by Shri Rebello on behalf of the appellant, it is section 38 of the Act which comes into play in the facts of this case and according to this provision a suit for perpetual injunction is always available for the plaintiff who seeks to prevent a breach of an obligation existing in his favour. In terms of the definition Clause (b) of section 2 ‘obligation’ includes any duty enforceable by law. In the instant case the appellant who has approached the Court to protect his alleged possession on the suit plot against the attempted encroachment by the respondents is not to be said as having lost the same and therefore there cannot be any dispute that the appellant has a right to secure legal enforcement by the respondents of a duty or obligation cast upon them not to cause dispossession unless by due process of law. In this regard reliance placed by the learned Counsel in Smt. Indumatiben Chimanlal Desai v. Union of India and another, , appears to be very much to the point. In this case a Single Judge of this Court, while dealing with the relevant scope of sections 34, 37 and 38 of the Specific Relief Act, held that the difference between section 34 on the one hand and sections 37 and 38 on the other is that the Court may not grant a declaration where the matter is capable of consequential relief. But there is no such restriction put on injunctions and the Court may grant an injunction as a substantive relief without any prayer for declaration, although in many cases a declaration may be implicit in the grant of a perpetual injunction.
10. Now and with regard to the maintainability of a suit for possession leading to title, if it is true, as it was observed in the case of Nair Service Society Ltd. v. K.C. Alexander and others, , otherwise relied by Shri Rebello, that presumption of title from possession can arise only where facts disclose no title to any party and the person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner, however, it is not less true in the event of disturbance of possession by third party and not the owner, the plaintiff can maintain possessory suit under the Act. If the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title. In the instant case the appellant has alleged that the only one who could have knocked at its title was the Sanguem Municipality and at no point of time, as per the evidence available on record, the Municipality has challenged the appellant’s right of possession. Besides, as it was already said above, there is no evidence at all led by the respondents to establish either that the Municipality was the owner in possession of the suit property or for that matter that the suit land continues to belong to the Municipality.
11. However, on merits I see no reason to unsettle the findings of the trial Court either on the point of its claimed possession or with regard to the title whose declaration was sought by the appellant in the suit consequent upon the amendment of its plaint.
12. Mr. Rebello has not been able to pursuade me that the evidence on record is sufficient to prove the appellant’s title to the suit plot on the basis of its alleged possession. Admittedly the appellant filed the suit for permanent injunction claiming to be the owner in possession of the property although subsequently a prayer for declaration was added with regard to ownership that the suit was primarily meant to restrain the respondents from trespassing or interfering in the disputed land. This very Court in the case of Anina D.P. Kaulekar and 5 others v. Maria V.E. Dias Sapeco, 1990(1) Goa Law Times, 318, has laid down that those who seek injunction must always establish prima facie possession on the date of the institution of the suit which possession must be traceable to a legal title.
13. In the instant case the appellant appears to claim its title based on the deed of declaration of possession, the original survey record showing on its entries the appellant’s name in respect of the plot surveyed under No. 209, the Taluka Revenue document regarding matriz No. 542, the registration of the property in the Land Registration Office and lastly on the physical possession sought to be established through oral evidence available on record. But in my view all this evidence seems to take us nowhere on the question of title of possession and does not appear to be at all sufficient to prove that the appellant is the owner of the suit plot and has been always in its lawful and actual possession.
14. As far as the deed of justification of possession dated 1966 is concerned and on which the appellant has manifestly relied upon to secure the registration of the land in the Land Registration Office, the learned District Judge has rightly discarded both for the purpose of substantiating the appellant’s title on sound reasons which he has elaborately recorded and are thus to be accepted. Indeed such declaration which has made possible for the appellant to get the property registered in the Land Registration Office is not able to create any right to the property. The land registration also, even assuming that such registration has been validly done after the coming into force of the Land Registration Act, 1963, which was extended to Goa in the year 1965, is not a source of title. It only justifies a legal presumption that if such right exists the same is to be preserved or continued. As such this presumption is only conducive to the acquisition of title by prescription. However a holder of a registered instrument has to expressly plead prescriptive title based on clear peaceful and uninterrupted possession against the one who challenged his right of ownership. Hence actual and effective possession is to be proved and established for a period sufficient to acquire the property by prescription. The learned Judge was thus justified, on the strength of the appellant’s evidence, namely, from the deposition of P.W. 1 John Mascarenhas and P.W. 2 Nelson Dias, that the statements of these two witnesses were not satisfactory in respect of the alleged possession after the cemetry was purportedly discontinued on the site more than 50 years ago and therefore if the land was admittedly barren since then, it was difficult to visualize what type of possession and enjoyment that the appellant would be able to claim on the suit land.
15. In respect of the document of old Cadastral Survey No. 209 there cannot be any dispute that since the same was not put to public objection or promulgated it cannot be held as a complete or officially closed document bearing any legal evidentiary value. Besides the appellant did not produce any ‘Auto de demarcacao’ which was an essential requirement to establish the correct boundaries of the land so demarcated upon the cadastral plan in support of its physical possession of the suit plot. Nowhere the appellant also pleaded that such demarcation was done by the competent authorities and in presence of the representatives of the concerned parties. It seems that the appellant was not even aware of the existence of the cadastral survey at the time of the filing of the suit as no reference is made in the plaint to the ‘cadastro’ and only in the subsequent amendment this fact was brought to the notice of the Court. The deed of demarcation also is silent on this aspect and only mentions the fact of the enrolment of the property in the matriz under No. 542 but even in this regard and apart from the effect of the evidence of the respondents, namely of their witness D.W. 9 G.G. Kambli and D.W. 8 R.G. Kamat, which per se is likely to cast a cloud on the very genuineness of the execution of this document, the fact remains that it is a settled position that a matriz document is neither an instrument of title nor a source of possession and that the organisation of the “matriz predial” is a mere administrative exercise aimed at collecting tax revenues from the land. As such no legal evidentiary value can be attributed also to the said registration for the purpose of establishing ownership title or presuming possession on the land.
16. On the other hand, the learned Judge’s observation that the appellant has not been in a position to produce any document prior to the “Deed of declaration” or of the cadastral plan to show that the disputed property belonged to the Fabrica and that if the same was in its ownership the appellant, whose existence was certainly earlier than the origanisation of the cadastro, should have recorded in its books which contains an inventory of all the assets belonging to the said Fabrica, appears to be correct and deserving acceptance.
17. Further and even assuming that there was a cemetry of the Church in this land some 50 years back, if the plot was in fact the property of the Fabrica consequent upon a grant purportedly made by the Municipality of Sanguem, the admitted owner of the remaining portion of the property around the suit plot on all four sides, the appellant was unable to explain as to how the registration of the said plot in the Land Registration Office was not made at that time, inspite of the land having been used by the Church as its cemetry on the strength of such grant or gift and instead the appellant sought to get the registration only much later in the year, 1966 and this also merely on the basis of a “Deed of declaration” or justification of possession.
18. Thus the only conclusion from this failure on the part of the appellant to either produce any document from its books to show that the plot was entered in the records of the Fabrica at the time the land was permitted to be used by the Municipality as a cemetry or get the same registered in its name in the Land Registration Office is that the suit land, although utilised for the purpose of cemetry by the appellant, which fact by itself does not necessarily imply that the same belonged or was maintained by the Fabrica, was never in the appellant’s ownership, being the Fabrica a mere licencee in respect thereof, which licence is deemed to have been terminated when admittedly a new cemetry was constructed at another place in the land also belonging to the Sanguem Municipality. Hence it follows that the argument of possession of land sought to be raised by the appellant as a ground of its use by the Fabrica for a cemetry does not seem to carry any substance for the simple reason that no such inference can be drawn on the appellant’s favour in the absence of more cogent and conclusive evidence to substantiate their plea.
19. This being the position I am inclined to hold that in the facts and circumstances of the case it is not permissible for the appellant to contend that the Fabrica is the owner in possession of the suit plot and that therefore the constructions which were done by the respondents therein are illegal and violative of its rights.
20. Accordingly I find no merit in this appeal which is hereby dismissed. There will be however no order as to costs.