Case Note & Summary
The appeal arose from a suit for partition and separate possession filed by Ruth Lobo (plaintiff/first respondent) against the legal heirs of Gregory Coelho and Alphonsus Coelho, the two sons of Sebastian Coelho, who originally owned the suit properties. The plaintiff claimed a 1/14 share, alleging that the properties remained in joint possession. The defendants, led by the 5th defendant, contested the suit on multiple grounds including non-joinder of Martha Coelho (sister of Gregory and Alphonsus), existence of a family settlement dated 06.06.1966, adverse possession by the legal heirs of Gregory Coelho since 1966, and validity of a will executed by Alphonsus Coelho. The trial court framed several issues covering the ownership, the will, the family settlement, power of attorney, representation, estoppel, adverse possession, sale of a portion of property, improvements, court fee, limitation, and the correct description of properties. After recording evidence (PW-1 and DW-1 to DW-4, exhibits P-1 to P-8 and D-1 to D-13), the trial court answered all the main issues in favor of the plaintiff and against the defendants 1 to 8. It held that the plaintiff proved the joint ownership; the defendants failed to prove the will, the family settlement, the power of attorney, or adverse possession; the sale of Survey No.75-12 was not binding on the heirs of Alphonsus Coelho; there was no non-joinder; and the suit was not barred by limitation. The trial court decreed the suit, declaring the plaintiff entitled to 1/21 share in the plaint schedule properties, and holding the defendants 1, 3 to 8 each entitled to 1/21 share, defendants 20 to 28 together entitled to 1/21 share, and defendants 15 to 19 (heirs of deceased 2nd defendant) together entitled to 1/21 share. It also decreed mesne profits with an enquiry during final decree proceedings. Aggrieved, the defendants 1, 4, 5, 6, 7, 15 and 18 filed the Regular First Appeal under Section 96 Order 41 Rules 1 and 2 CPC. Their grounds contended that the trial court's findings were contrary to law, pleadings, and evidence; that the evidence was not properly appreciated; that the findings were vitiated by misunderstanding documents; and that the trial court failed to apply settled principles and the Evidence Act. The appeal was heard on 11.08.2022 and reserved for judgment, pronounced on 21.09.2022 by Justice V. Srishananda. The provided text does not include the High Court's analysis or final decision on the appeal.
Issue of Consideration
Case Details
2022 LawText (KAR) (09) 23
R.F.A. NO.1520/2006 (PAR)
B.V. Krishna (for appellants), Vasanth V Fernandes (for respondent 1), other respondents unrepresented
Mrs. M.A. Saldanha, Mrs. Moira Celine Coelho, Albert Joseph Coelho, Ethelbert Joseph Coelho, Miss Rowina Coelho, Mrs. Diana Coelho, Miss Carmen Coelho
Ruth Lobo, Isidore Robert Coelho (deceased by LRs Rohan Coelho, Goel Coelho, Sara Coelho, Diana Coelho, Carmen Coelho), Rohan Coelho, Miss Goel Coelho, Miss Sara Coelho, Vitus Gilbert Coelho, Miriam Colaco, Stanislaus J F Coelho, Martin B T Coelho, Mrs. Angela R A Thomas, Mrs. Ester Sandjivery, Sebastian E T Coelho, Mrs. Judith M Fernandes, Mrs. Bryce Menezes, Mrs. Louise Rebello (deceased), Dr Mrs. Celine Lobo, Mrs. Rita Saldanha, Arch Bishop Peter Prabhu (deceased), Dr. Silvia Kamath, John Pinto, Joseph Pinto (deceased by LRs Luise Pinto, Dr. Victor Fernandes, Miss Lalitha Pinto), Mrs. Luise Pinto, Dr. Victor Fernandes, Miss Lalitha Pinto, Michael Pinto
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Nature of Litigation
Regular First Appeal filed under Section 96 Order 41 Rules 1 and 2 of CPC against the judgment and decree of partition and separate possession passed in O.S. No. 95/1989.
Remedy Sought
Appellants (defendants 1,4,5,6,7,15 and 18) sought to set aside the trial court's decree and dismiss the plaintiff's suit.
Filing Reason
The trial court decreed the suit for partition, determining shares of the parties and ordering mesne profits, which the defendants considered erroneous.
Previous Decisions
The Principal Civil Judge (Senior Division) and CJM, Mangalore, in O.S. No. 95/1989, decreed the suit on 20.01.2006, holding the plaintiff entitled to 1/21 share of the suit properties, and directing an enquiry for mesne profits.
Submissions/Arguments
The trial court's findings were wrong, illegal, and contrary to law, pleadings, and evidence.
The lower court failed to appreciate the evidence in proper perspective.
The findings on issues were vitiated by wrongly understanding the documents on record.
The trial court failed to apply settled principles of law in view of the specific plea taken by the appellants.
The approach of the trial court was contrary to the provisions of the Evidence Act and settled principles.
Judgment Excerpts
Appellants and respondents are related to each other and source of decedent claimed by the parties was one from Sebastian Coelho.
The plaintiff's suit is hereby decreed as follows. The plaintiff is held to be entitled for 1/21 share in the plaint schedule properties.
Being aggrieved by the said Judgment and decree, the appellants have preferred this appeal on the following grounds...
Procedural History
The plaintiff filed O.S. No. 95/1989 for partition and separate possession. Defendants filed written statements denying the claim and raising defenses of family settlement and adverse possession. The trial court framed issues, recorded evidence, and on 20.01.2006 decreed the suit. Being aggrieved, defendants 1,4,5,6,7,15 and 18 filed the present Regular First Appeal under Section 96 Order 41 Rules 1 and 2 CPC. The appeal was heard on 11.08.2022 and reserved for judgment, pronounced on 21.09.2022.
Acts & Sections
- Code of Civil Procedure, 1908: Section 96, Order 41 Rule 1, Order 41 Rule 2
