IN THE HIGH COURT OF BOMBAY AT GOA
First Appeal No. 265 of 2005 and M.C.A. No. 669 of 2011
Decided On: 08.03.2013
Appellants: Shri Francisco Xavier Ferrao
Vs.
Respondent: Prof. Filomeno Bonifacio de Viera Menezes and Ors.
Hon'ble Judges/Coram:U.V. Bakre, J.
27. In the case of "Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (Dead) through L.R.s" (supra), it has been held by the Apex Court that truth must be foundation of justice and Judges should not sit as mere umpire during trial but should play an active role to find out truth. It has been held that in an action for recovery of possession of immovable property, or for protecting possession thereof, upon legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. It has been further held that wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.It would be imperative that one who claims possession must give the following below:
(a) Who is or are the owner or owners of the property;
(b) Title of the property;
(c) Who is in possession of the title documents;
(d) Identity of the claimant or claimants to possession;
(e) The date of entry into possession;
(f) How he came into possession whether he purchased the property or inherited or got the same in gift or by any other method;
(g) In case he purchased the property, what is the consideration, if he has taken it on rent, how much is rent, license fee or lease amount;
(h) If taken on rent, license fee or lease then insist on rent deed, license deed or lease deed;
(i) Who are the persons in possession/occupation or otherwise living within him, in what capacity; as family members, friends or servants etc.;
(j) Subsequent conduct, i.e., any event which might have extinguished his entitlement to possessions or caused shift therein; and
(k) Basis of his claim not to deliver possession but continue in possession.