1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 47 of 1999 WITH SECOND APPEAL NO. 18 of 2000 WITH CROSS OBJECTION NO. 8 of 2000 IN SECOND APPEAL NO. 18 of 2000 1. Mr. Ganpat Dattaji Dessai, (since deceased) represented by his legal representatives: (a) Mr. Shripad Ganpat Dessai, (b) Mrs. Laximi Shripad Dessai, (c) Mr. Bhimrao Ganpat Dessai, (d) Mrs. Bharati Bhimrao Dessai, (e) Mr. Pralhad Ganpat Dessai, All of major age, All residing at Brahma Karmali, Nagargaon, Valpoi, Sattari, Goa, (f) Mrs. Savita Shashikant Patil, (g) Mr. Shashikant Mahadev Patil, Both of major age, Both residing at Jamboti, Khanapur, District Belgaum, Karnataka State (h) Mrs. Suman Ganpat Prabhu Dessai, (i) Mr. Ganpat Shiva Parab alias Prabhu Dessai (since deceased) represented by his legal heirs 1. Mrs. Suman Ganpat Prabhu Dessai alias Parab (widow) 2. Kum. Yogesh Ganpat Prabhu Dessai alias Parab, (son)(minor) 3. Kum Sagar Ganpat Prabhu, Dessai alias Parab, (son)(minor) All residents of Shelpi, Post Thane, Valpoi, Sattari, Goa. 2 (j) Mrs. Shobha Rajesh Dessai, (k) Mr. Rajesh Babu Dessai, Both of major age, Residing at Ponsulem, Canacona, Goa. 2. Mrs. Dropadi Ganpat Dessai, wife of Mr. Ganpat Dattaji Dessai (since deceased) and one of his legal representatives, of major age, residing at Brahma Carmali, Sattari, Goa. … Appellants. Represented by their const. Attorney Mr. Shripad Ganpat Dessai V e r s u s 1. Mr. Rajaram Ramchandra Marathe, 2. Mrs. Saraswati Rajaram Marathe, 3. Mr. Deu Ramchandra Marathe, 4. Mrs. Radha Deu Marathe 5. Dr. Pandurang Ramachandra Marathe 6. Mrs. Mangala Pandurang Marathe All of major age, All residing at Dhamacem, Sattari Goa, … Respondents. Represented by their const. Attorney Mr. Gopal Laximan Joshi, of major age, Residing at Hedodem, Sattari, Goa. 3 Mr. S.D. Lotlikar, Senior Advocate with Mr. H. Kankonkar, Advocate for the Appellants. Mr. M.B. Da Costa, Senior Advocate with Mr. J. Abreu Lobo, Advocate for the Respondents. Coram: S.C. DHARMADHIKARI, J. Date: 29 th April, 2011. JUDGMENT: These two Second Appeals arise out of cross suits and between same parties. Common arguments were canvassed and they can be conveniently disposed off by a common Judgment. 2. Second Appeal No. 47/1999, is filed by the Original Plaintiffs in Regular Civil Suit No. 114/1990, challenging the Judgment and Decree of the Civil Judge Junior Division, Sattari at Valpoi, Goa and that of the District Court in Regular Civil Appeal No. 15/1993 dated 30th July, 1999. The Respondents to this Second Appeal are the Original Defendants in the suit. 4 3. The prayer of the Appellants/Plaintiffs in this suit is for declaration and consequential relief in regard to the suit property known as “Deusu Moli” in the village Brahma Karmali of Sattari Goa. This property constituted of coconut garden, jackfruit trees, cashewnut trees etc. and the property is more particularly described in paragraphs 1(a) and 1(b) of the plaint. 4. According to the Plaintiffs, this property originally formed part of the property know as “Mocasso Carambolim Brahma” belonging to them. 5. In paragraphs 3 and 4 this is what the Plaintiffs has alleged: “3. The plaintiffs say that the late Shri Dattaram alias Dattu Ram Bhat Kelkar was the last cultivator and possessor of this land by virtue of the “Potto” given to the ancestors of the said Kelkar by the ancestors of these plaintiffs. 5 4. The plaintiffs say that the said Dattu Kelkar was one of the "Potto" possessor amongst many others and the said Kelkar, like other Potto possessors, used to pay "foro" to ancestors of the plaintiffs which was fixed every year after assessment of the crop of the property alloted to them. The said Kelkar used to pay 'foro' to the plaintiff's family.” 6. The Appellants, thereafter, alleged that the said Dattaram Kelkar and his wife died 70 years ago without any issue or any legal representative or legal heir and therefore the suit property reverted back to them and their family. It is stated that the father of the Plaintiffs took possession of the same and since then they are in exclusive physical possession of the property know as “Deusum Mali” and the possession of the property “Nigud Sarem” was taken by Savitri Dessai, member of the family. Her name is recorded in the survey records of the property. In para 6, their specific case was that for the last 70 years their family is in possession of property “Deusum Mali” and are enjoying the same. 6 7. In the plaint, the Appellants made reference to a suit filed by Defendants/Respondents being Regular Civil Suit No. 74/1988, which was pending before the same Court. 8. In para 8 of the plaint, the Appellant states thus: “8. The plaintiffs say that only on perusal of the plaint in the said suit, it came to the knowledge of these plaintiffs that the defendants have played a trick and have manufactured different documents – which are bogus in nature but are capable of creating wrong notion in the minds of authorities and may prove detrimental to the interest of these plaintiffs in regard to the suit properties. The said documents are in the nature of a Gift Deed dated 16th April, 1966 and a Sale Deed dated 16th April, 1966. The above said Deed of Gift and the Deed of Sale, both dated 16th April, 1966 are hereinafter termed as the "suit documents".” 7 9. In such circumstances, Appellants state that the above document namely the Gift Deed dated 16th April, 1966 and the Sale Deed dated 16th April, 1966 are ab-intio void and a nullity, as the transfers were without ownership or possession and without any rights in respect of the properties. A detailed reference was made to the Gift Deed and the Sale Deed in paragraphs 10 and 11 respectively of the plaint. It is in such circumstances, and alleging that the cause of action arose on 17th August, 1988, when the papers in Regular Civil Suit No. 74/1988, filed by the Respondents/Defendants were handed over to them and from that date, the suit from which Second Appeal No. 47/1999 arises, came to be filed. The prayers therein are for declaration that the Sale Deed and the Gift Deed, both are null and void and are of no legal effect and the Appellants be declared as owners in possession of the suit properties. This suit was filed on 15th October, 1990. 10. Upon being served with the papers in this suit, Written Statement was filed on behalf of all 8 Respondents/Defendants, in which some of the averments contained in the plaint are admitted. 11. As fas as para 2 of the plaint is concerned, in the Written Statement it is stated that “Mocasso” changed into a private property of Kelkar. While denying paragraphs 5 and 6 of the plaint, what the Respondents/Defendants state is that the Kelkar couple died without issue. They state that their predecessors in title came in possession of the suit properties vested in them, by death of the couple, sometime in 1940. It is alleged that Ganga alias Bhagirathi died as a widow and she was the eldest sister of Ramchandra Dev Bhat Marathe. From 1940 to 1990, possession of the Defendants is bonafide, with title, peaceful, uninterrupted, exclusive, open with the knowledge of the Plaintiffs/Appellants giving the acquisition of the properties by prescription after the death of widow of Kelkar. 9 12. In para 5 of the Written Statement what is stated is that the averments in paragraphs 8 to 11 of the plaint are denied, except that the Deeds are valid. Further, para 5 reads as under: “The shares totally devolving on the defendants as follows:- To defendants nos. 3 and 4 = 1/4 by sale deed from late Govind Deu Bhat Marathe his wife Jayanti to all defendants jointly 1/4 by gift deed from late Ramchandra Deu Bhat Marathe and his two wives Rucmini and Satiabama. The living wife Smt. Satiabhama alias Champubai is enjoying life interest by the gift deed.” 13. On these pleadings, the learned Trial Judge framed the necessary issues and by the Judgment and Decree dated 30th January, 1993, held that the Appellants/Plaintiffs have failed to prove that they are owners of the property and they have failed to prove that the suit property was in “Potto” possession of Dattaram Kelkar and after his death, so also 10 death of his wife, the property reverted back to them. The learned Judge held that findings on Issues 4 and 5 have already been rendered in deciding Regular Civil Suit No. 74/1988 and therefore dismissal of the said suit would be the requisite finding of the said issues. Consistent with this, the learned Judge dismissed the Appellants' suit without costs. 14. Aggrieved by this Judgment and Decree, the Appellants carried the matter in the Appeal before the Court of the District Judge and the Additional District Judge at Mapusa being Regular Civil Appeal No. 15/1993, which was dismissed. The Judgment delivered by the Lower Appellate Court is dated 30th July, 1999 and aggrieved by the same, the present Second Appeal is filed. 15. At the stage of admission this Court admitted the Second Appeal on the substantial question of law framed at para 19 (A) to (D) which read as under: 11 “(A) Whether, in view of the categorical admission on the part of the Respondents, to the effect that the suit property was being held by Mr. Dattaram alias Dattu Rama Bhat Kelkar, as a "Poto" possessor, and he used to pay "Foro" to the ancestors of the Appellants, which was fixed every year after assessment of the crop of the property allotted to him, the Sale Deed and the Gift Deed, both dated 16th April, 1966 which was based on the assumption that the suit property was owned by Mr. Dattaram alias Dattu Rama Bhat Kelkar, were legally sustainable ? (B) Whether, the Certificate of Inscription made on the basis of the Gift, made by the wife in favour of the husband, could constitute a document of title, and that too of ownership ? (C) Whether, the conclusion drawn by the Learned Additional District Judge, that the Appellants failed to establish their ownership is perverse, being contrary to the pleadings of the parties ? 12 (D) Whether, in view of the specific plea raised by the Respondents, namely of prescription, it was open to the Courts below, to record acquisition of title by the Respondents, otherwise than by way of adverse prescription ?” 16. The Second Appeal No. 18/2000 is filed by the Appellants/Original Defendants/Respondents and it arises out of Regular Civil Appeal No. 26/1992 and that Regular Civil Appeal was preferred by the Respondents herein, who are the Original Plaintiffs. It is in respect of Regular Civil Suit No. 74/1988, re-numbered as Regular Civil Suit No. 41/1990. That suit was instituted by Respondents herein against the Appellants before me in the same Trial Court. That suit was dismissed by a Judgment and Decree dated 22nd April, 1992. 17. The claim of the Respondents in that suit pertains to the same property which is the part of the present suit. However, in para 3 of the plaint, Respondent No. 3 has stated that by virtue of Gift Deed dated 18th April, 1966, the 13 Respondents became the absolute owners of the property and since then they are in peaceful possession of the property. Further, it is stated that prior to the Gift Deed, the said property was owned, possessed and peacefully enjoyed by their predecessors in title. It is alleged that the Record of Right of village Carambolim Brahma was prepared and the name of the Occupants present Respondent Nos. 1, 3 and 5 were recorded therein. There was no dispute or objection from any person to this record. 18. It is alleged that sometime in the year 1987, the Original Defendant No. 1 made an encroachment in the suit property and occupied an area of 100 square metres by constructing a shed of country tiles. It was alleged that in the same year, the Original Defendant No. 1 managed to include his name as “Cultivator”, without any notice to Respondent No. 1/Original Plaintiff No. 1 and without following prescribed procedure. It was specifically alleged that the Appellants before me have no right in the suit property and 14 that they are trespassers. It is in these circumstances and relying upon the Goa, Daman and Diu Land Revenue (Record of Rights and Register of Cultivators) Rules, 1969, that the suit for mandatory injunction directing the Appellants to remove the encroachment and to restore the possession of 100 square metres from the suit property to the Respondents was filed. 19. The prayer for declaration is that the entry in the name of the Original Defendant/Appellant No. 1 in the Cultivators column of Survey No. 58, Sub-Division 2 of the village Carambolim, Brahma of Sattari Taluka for the year 1986-87 is void and liable to be cancelled. Further, they claim perpetual injunction restraining the present Appellants, their agents, servants and family members from interfering with the possession in respect of the property “Deussumali” and further prayer is for issuance of mandatory injunction to remove the encroachment and to restore the property back to the Respondents. That suit was filed on 8th June, 1988. Upon the suit, being filed summons came to be issued, Written 15 Statement was filed by the Appellants and while denying the claim of Respondents, they contended that the Gift Deed dated 18th April, 1966 is a bogus document. It is null and void and the Donors are not the owners of the property. Hence, gift by such a Donor is bogus. They specifically contended that the property “Deusum Mali” is part and parcel of the property “Mocasso”, belonging to them which was given as “potto” to one Bhoto Kelkar. Its last descendant was Dattu Kelkar, who died 75 years back, leaving no heir and since then the property is possessed and enjoyed by the Appellants/Defendants to this suit. They claim that they are absolute owners and cultivators of the property and denied that at any time the Plaintiffs/Respondents were the owners in possession of the property. In these terms, they denied the entire case of ownership and encroachment and prayed that the suit be dismissed. This Written Statement was filed in the Trial Court on 18th August, 1988. 16 20. On these pleadings, learned Trial Judge framed the following issues: “ (1) Does the plaintiffs prove that he is owner of the suit property ? (2) Does the plaintiffs prove that he is in possession of the suit property ? (3) Does the plaintiffs prove that defendants encroached to the extent of 100 sq. mts. in the suit property ? (4) Is the plaintiffs entitled for a mandatory injunction removing the construction done by the defendants to the extent of 100 sq. mts. ? (5) Is the plaintiffs entitled for the relief of declaration stating that entry of the name of the defendant no. 1 in the cultivators column of survey no. 58/2 of the village Carambolim Brama, Sattari Taluka for the years 1986-87 is illegal and therefore, liable to be cancelled ? (6) What relief, what order ?” 17 21. On appreciation of oral and documentary evidence, the learned Trial Judge proceeded to dismiss the Respondents suit as observed above. 22. It is aggrieved by the Judgment and Decree of the Trial Court, that the Respondents to the Second Appeal No. 18/2000 filed an appeal before the District Court and the learned Additional District Judge, Panaji, by the impugned Judgment, decreed the suit. The learned Additional District Judge issued a permanent injunction restraining the Appellants in this Second Appeal, their agents, servants and family members from interfering with the possession of the Respondents herein in respect of the property concerned and they were also directed to remove the encroachment and restore the land to its original condition and hand over it to the Respondents, before me. 23. This Second Appeal came to be admitted on the substantial question of law, which reads thus: 18 “(A) Whether, the Additional District Judge could have answered the first point for determination, namely whether, the Respondents prove that they are owners in possession of the suit property, in the affirmative, when he had himself come to the conclusion, that it was not possible to give a declaration of ownership of the suit property in favour of the Respondents, and did not also come to the finding, that the Respondents were in possession of the suit property ? (B) Whether, the Additional District Judge could have decreed the Suit of the Respondents for permanent and mandatory injunction against the Appellants, without coming to a finding that the Respondents were in lawful possession of the suit property and especially in view of the fact that the case of the Appellants was that the suit property formed a part of the Mocasso belonging to them, was accepted by the Respondents ? 19 (C) Whether, the finding of the Additional District Judge that Mr. Govind Deu Bhat Marathe and Ramchandra Deu Bhat Marathe, were the brothers of Mrs. Bhaguirathi Kelkar, is perverse, being based on inadmissible evidence ? (D) Whether, the reversal by the Learned Additional District Judge of the adverse inference, which the Trial Court had drawn against the Respondents, for failing to step into the witness box, is arbitrary ? (E) Whether the Learned Additional District Judge could have reversed the Judgment and Decree of the Trial Court, and decreed the Suit of the Respondents without reversing the finding recorded by the Learned Trial Judge, to the effect that the Respondents had neither proved possession of the suit property nor established how the suit property came to Mr. Ramchandra Marathe and Mr. Govind Marathe ? 20 (F) Whether, the Certificate of Inscription and Description prepared on the basis of a Gift Deed made by the wife in favour of the husband could be considered to be a document of title ?” 24. It is on these Appeals, I have heard common arguments. 25. Mr. Lotlikar, learned Senior Counsel appearing on behalf of the Appellants in both these Appeals submitted that the present cases are clear and clinching proof of contradictory findings and conslusions. He submitted that the Trial Judge dismissed the suit filed by the Appellants and also dismissed the suit filed by the Respondents. He submitted that the Lower Appellate Court while decreeing the suit filed by the Respondents came to an erroneous conclusion that they have proved the case of ownership. Mr. Lotlikar further submitted that the Judgment of the Lower Appellate Court, in Second Appeal No. 18/2000, would reveal that reference is made to the oral evidence led on behalf of the Respondents in the suit. 21 However, omitting to make a complete reference, the Trial Judge has not given any finding, but has made stray observations. He submitted that the Lower Appellate Court was aware of the facts in Regular Civil Suit and that what Respondents preferred was a First Appeal invoking jurisdiction under Section 96. Such a First Appeal lies both on law and facts. The learned Judge failed to appreciate the oral and documentary evidence on record. The learned Judge is justified in interfering with the findings of the Trial Court but only after recording a conclusion that the Trial Court has acted perversely or that the Decree is erroneous on law and facts. In the instant case, Second Appeal No. 18/2000 is filed to demonstrate that the Lower Appellate Court has not recorded any finding that the Trial Court has acted perversely. The learned Appellate Judge has not given any finding on ownership of the property. On the other hand, while framing points for determination, the learned Judge was aware that he had to give declaration, on possession of the parties over the suit property. He gives a finding in affirmative on point 1. 22 However, discussion on point 1 ends at point 20, in which the learned Judge concludes that on comparing evidence of both sides, Respondents case is more probable as far as the title of the property is concerned. At the same time he holds that it would not be possible to give declaration of ownership of the suit property in the favour of the Respondents. 26. Mr. Lotlikar complains that unless a finding is given on the ownership of the property, a mandatory injunction against the trespassers and directing to remove the encroachment cannot be granted. Further, perpetual injunction restraining them cannot be granted when they fail to prove their case of ownership. The Decree of the Trial Court ought to have been confirmed. Reversing it, without any such finding and conclusion, is erroneous in law and the Judgment of the Lower Appellate Court be reversed totally. 27. As far as Second Appeal No. 47/1999 is concerned, it is preferred by the Appellants against dismissal 23 of their own suit. It is contended by Mr. Lotlikar that the Trial Judge dismissed the suit of the Appellants by the Judgment and Decree dated 30th July, 1999. However, the same Judge should have been aware of the fact that he dismissed the Respondents' suit in respect of the same property and virtually dealing with the same issues by Judgment and Decree of 1992. If he had dismissed that suit there was no justification for his dismissal of the Appellants suit and particularly when the Appellants had successfully demonstrated that they are in possession of the property. They have proved that the property “Mocasso” belongs to them and if that has been proved, the Appellants' suit could have not been dismissed, so also the Judgment of the Trial Court should have not been confirmed by the Lower Appellate Court. The Lower Appellate Court ought to have noticed the Judgment and Decree in Regular Civil Suit preferred by the Appellants delivered on 30th July, 1999. The Lower Appellate Court on the very same day allowed the Regular Civil Appeal No. 26/1992, preferred by the Respondents, but while allowing the same he has given no 24 finding, much less binding and decisive on the issue of ownership. If going by the probability and preponderance the Appellants version is more probable then their suit should have been decreed and that is how substantial questions of law have arisen and that this Court should answer them accordingly. He therefore submitted that both Second Appeals be allowed. In any event, if, the first Second Appeal is allowed, then, it would be logical that the other Appeal should also be allowed. 28. On the other hand, Mr. Da Costa, learned Senior Counsel appearing on behalf of the Respondents supported the impugned Judgments in both the Appeals. He submitted that the Appellants cannot take advantage of any deficiency in pleadings in as much as the parties are not educated and do not understand the implications of law. This Court must see the documents relied upon. It is the case of the Appellants that they had right in the property and they cannot claim ownership because they themselves plead to be the cultivators. If they are 25 cultivators and claim in that capacity, then, their claim of absolute ownership cannot be held to be proved. He further submitted that documents relied upon by the Appellants themselves would show the contradiction in their case. He relied on the Translation of the Summary/Inventory Application and submitted that in that case Shantaram Dattugi Dessai claims to be the land owner and the head of the family as stated and that these properties are tributary to the deceased Gonoxama Gonoba Dessai. It is described under No. 10034 with annual quit-rent. It has also been shown from the same document that ½ of it is in favour of the Dattu Rama Kelkar and other ½ on the southern side belongs to Vithal Vishnu Kelkar and that there is a statement therein that Bhaguiratibai was a widow of Dattu Rama Kelkar. She on her