1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.31 OF 2001 1. Shri Sakharam Senai Kenkre ( deceased ) through his legal representatives (a) Smt. Radhabai Sakharam Sinai Kenkre ( deceased ) (b) Satchidanand Sakharam S. Kenkre son of Appellant no.1. (c) Smt. Shrimati S. S. Kenkre both r/o New Katrac Bldg., Ground Floor, Room No.2, C.K. Bole Road, Portuguese Church Street, Dadar, Bombay (d) Shri Subhash S. S. Kenkre son of Appellant no.1, married to (e) Smt. Pushpalata S. S. Kenkre Both r/o M-125 Housing Board Colony Alto Betim, Post : Betim. (f) Shri Ashok S. S. Kenkre son of Appellant no.1, unmarried of full age, r/o Tambudquivado, Arpora, Goa. (g) Smt. Sudha Digambar Prabhu daughter of Appellant no.1 married to (h) Shri Digambar Prabhu Both r/o 3/31/A Ullengal Bldg., N.C. Kalkar Road, Dadar, Bombay -28 (i) Smt. Neela Shrirang Shenay daughter of the Appellant no.1 married to (j) Shri Shrirang Shenay Both resident of E-5 B.A. R.C. Quarters, Sarvodaya Colony, Chembur, Bombay (k) Smt. Asha Narayan Kulkarni 2 daughter of the appellant no.1. Married to (l) Shri Narayan Kulkarni Both r/o Shriram Apartments – 3, 1st Floor, Ramee Takra, Bulsar Gujrat State (m) Smt. Guita Anand Kamat daughter of the Appellant No.1 married to (n) Shri Anand Kamat Both residents of Gomes Building Shirvodem, Margao Goa (o) Smt. Shobha Prakash Prabhu Parrikar daughter of the Appellant No.1 C/o North Education Zone, Mapusa (p) Shri Prakash Prabhu Parrikar C/o St. Joseph High School, Arpora, Goa and 2. Shri Narayan Yeshwant Kenkre, of full age, resident of 41, Raghav Wadi, French Bridge, Bombay 7 and represented by his Attorney the Appellant no.1 3. Shri Givaji Yeshwant Kenkre of full age, resident of C/o Dr. N. Y. Kenkre, 41 Raghav Wadi, French Bridge, Bombay 7. ( deceased ) represented by his Attorney the Appellant No.1 ( also deceased ) ….. Appellants V e r s u s 1. Shri Kashinath Matu Saunto r/o Matu Saunto, aged about 50 years, r/o Asvem, Mandrem ( Since deceased through Lrs ) 1a) Mr. Mahadev Kashinath Saunto r/o Asvem, Mandrem. 3 2. Babli Govind Saunto, son of Govind Santo, aged about 55 years, resident of Mandrem, Asvem, Goa. ( Since deceased represented by his legal heirs ) a) Ana Babali Sawant, r/o Asvem, Mandrem, Pernem Goa. b) Amruta Babali Sawant r/o Asvem, Mandrem, Pernem Goa. ( Since deceased through Lrs ) 2(b)i. Shri Gangaram Anna Kepkar ( Deceased ) husband of Satyawati Gangaram Kepkar 2(b)ii. Mrs. Kavita Ashok Keni, daughter of Gangaram Kepkar, and her husband 2(b)iii. Mr. Ashok Keni, Both residents of Vailo wado, Varkhand, Pernem, Goa – 403 512 2(b)iv. Mrs. Smita Nilesh Parab ( Kepkar ) daughter of Gangaram Kepkar and her husband 2(b) v. Mr. Nilesh Parab Both residents of H.No.204, Kamar Khazan, Pede, Near Sports Complex, Mapusa Goa. 3. Shri Rama Dondu Saunto son of Dondu Saunto, aged about 53 years, r/o Mandrem, Asvem, Goa. 4. Pandu U. Santo son of Utulo Saunto, aged about 55 years, resident of Mandrem Goa. 4 5. Balkrishna Sinai Kenkre of full age, resident of C/o Mr. D. S. Prabhu 3/31 A Ullengal Building No.1, N. C. Kelkar Road, Dadar, Bombay 28. … Respondents Shri Sudin M.S. Usgaonkar, Advocate for the Appellants. Shri A. Kansar, Advocate for the Respondents No.1,2(a),2(b), 3 and 4. CORAM : F.M. REIS, J. DATE : 12th DECEMBER, 2011 JUDGMENT : Heard Shri Sudin M.S. Usgaonkar, learned Counsel appearing for the appellants and Shri A. Kansar, learned Counsel appearing for respondents no.1,2(a),2(b), 3 and 4. 2. The above appeal has been admitted by order dated 28/11/2002 on the following substantial questions of law: 1(a) Is it mandatory to plead area and dimension of an immovable property, if the boundaries thereof with land registration numbers are pleaded as per Order VII, Rule 3, C.P.C.? (b) Would not boundaries prevail over area of immovable property in the matter of identification of property? (c) Is it mandatory to produce a sketch drawn to scale for seeking relief of permanent 5 injunction? (2) In a suit for declaration and permanent injunction based on title and possession, once findings are recorded proving title and possession and declaration as prayed having been granted, has not the permanent injunction to follow declaration or can the permanent injunction be refused merely because area and dimension of property is not pleaded when boundaries were pleaded to identify the property? 3. On perusal of the impugned judgments of the Courts below, I find that the learned trial Judge whilst disposing of Civil Suit No.101/1968 by judgment and decree dated 28/02/1978 has partly decreed the suit and partly dismissed the suit and held that the appellants and respondent no.5 are declared to be the owners in possession of lots no.1 to 8 in the property Dharval and lots no.I to IV of the property Tollem as shown in Exhibit 5. Accordingly, the respondents no.1 to 4 were restrained by permanent injunction from in any manner interfering with the possession and ownership of the Appellants and respondent no.5 in respect of the said property. A further general declaration was issued in respect of the other properties namely Devachem Batulem, Braman Cungo, Tollem and Haran regarding the possession and ownership of the lots by the appellants without specifying the said lots as no area or 6 dimensions of the said lots were furnished and Exhibit 5/A admittedly was not drawn to any scale. The learned Judge further held that the appellants are declared to be the owners in possession of two lots consisting of coconut trees and one lot of paddy field in the property Devachme Batulem; one lot consisting of coconut trees of Tollem Asvem; one bigger lot consisting of coconut trees and one lot of paddy field in Braman Cungo and two lots of coconut trees in the property Haran. However though declaration of ownership and possession of the Appellants and respondent no. 5, no injunction in respect of the afore mentioned properties was granted by the learned Judge by the said impugned judgment and decree. 4. Being aggrieved by the said judgment and decree, the appellants preferred a Regular Civil Appeal before the learned Additional District Judge at Panaji being Regular Civil Appeal No.59/1989 which by judgment and decree dated 7/03/2001 came to be dismissed. Being aggrieved by the said judgments passed by the Courts below, the appellants have preferred the above Second Appeal which came to be admitted on the aforesaid substantial questions of law. 7 5. Shri Sudin Usgaonkar, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that once the learned trial Judge has granted a declaration to the effect that the appellants are the owners in possession of the remaining four properties, the question of refusing injunction as prayed for by the appellants does not arise at all. The learned Counsel has taken me through the findings of the learned trial Judge and pointed out para 7 of the impugned judgment and submitted that the learned Judge has clearly identified the portions of the suit property which were in ownership and possession of the appellants and, as such, the question of refusing injunction as prayed by the appellants does not arise at all. Dealing with the substantial questions of law as framed by this Court, learned Counsel has pointed out that the sketch attached to the plaint which was exhibited 5/A was in fact not disputed by the respondents in their written statement. Learned Counsel has taken me through the pleadings in the plaint as well as the averments in the written statement filed by the respondents and pointed out that there was no substantial dispute with regard to the location of the portion of the property acquired by the appellants. Leaned Counsel further 8 pointed out that once the learned Judge has granted a declaration to the effect that the appellants are the owners in possession of the specific plot and in respect of the remaining four properties, it was incumbent upon the learned Judge to decree the suit on such portion of the suit properties. Learned Counsel pointed out that the lower Appellate Court has not at all addressed itself to the submissions advanced by the appellants assailing the said findings of the learned Judge and, as such, has erroneously dismissed the appeal preferred by the appellants. Learned Counsel, as such, submitted that the impugned part of the judgment deserves to be quashed and set aside. 6. On the other Shri A. Kansar, learned Counsel appearing for the respondents has supported the impugned judgment. Learned Counsel pointed out that though there is no substantial dispute between the parties to the effect that they are enjoying separate portions of the property, nevertheless, the lots have not been identified at loco vis-a-vis the sketch at Exhibit 5A. Learned Counsel further pointed out that the learned trial Judge has done the exercise of trying to co-relate the boundaries as disclosed in Exhibit 5A and on the basis of such appreciation of the evidence 9 on record the learned trial Judge has passed the impugned judgment partly decreeing the suit and refused the permanent injunction as actual identity of the lots claimed by the appellants has not been established. Learned Counsel further pointed out that the lower Appellate Court did not find any fault with regard to the findings of the learned trial Judge and, as such, such concurrent findings of fact cannot be re-appreciated under Section 100 of the Civil Procedure Code. Learned Counsel further submitted that unless and until there is evidence on record to establish the boundaries as disclosed by the appellants vis-a-vis the sketch at exhibit 5A, the question of granting any permanent injunction on the basis of the sketch at Exhibit 5A would not arise at all. Learned Counsel further submitted that the learned Judge has rightly granted the declaration on the basis of the claim of the appellants and refused the permanent injunction in the manner as prayed by the appellants. Learned Counsel, as such, submitted that the substantial questions of law framed by this Court deserve to be answered in favour of the respondents and, as such, no interference is called for in the impugned judgment. 7. On perusal of the records as well as upon consideration of 10 the submissions advanced by both the learned Counsel, I find that Shri Usgaonkar is justified to contend that the averments in the plaint at para 5 clearly state the claim of the appellants in respect of the specific lots of different properties. Para 6 further states that the appellants as well as the respondents are enjoying specific portions of the property separately, for last more than 40 years. Dealing with the said averments at para 5 and 6 of the plaint there is no specific denial to the allegations made therein in the written statement. Hence, on the basis of the pleadings of the parties there was no substantial dispute with regard to the identity of the claim of the appellants vis-a-vis the lots as located on the basis of such averments in the plaint refereed to herein above. The learned trial Judge whilst passing the impugned judgment was justified to come to the conclusion that the appellants are the owners in possession of the suit properties. The learned Judge has done the exercise of co- relating the boundaries as claimed by the appellants vis-a-vis sketch produced at Exhibit 5A and has come to the conclusion that the boundaries tally with regard to one of the properties namely the property knows as “Dharval” and the property known as “Tollem” as identified at Exhibit 5, but however with regard to the property which has been identified vis-a-vis Exhibit 5, learned Judge has 11 come to the conclusion that the boundaries as pleaded by the appellants do not substantially tally with the boundaries as shown therein. Considering the pleadings of the parties and taking note of the fact that there was no substantial dispute with regard to the identity of the suit property claimed by the appellants, I find that merely because the areas have not been mentioned in the plan produced by the appellants, does not by itself disentitle the appellants to seek declaration as prayed for in the suit. But however, taking note of the fact that the learned Judge after appreciating the evidence on record has come to the conclusion that the boundaries as disclosed in Exhibit 5A do not correspond to the boundaries as disclosed by the appellants, I find that such findings have been upheld by the learned lower Appellate Court. As such, this Court cannot re-appreciate such findings in the present Second Appeal. But however, taking note of the fact that the Courts below have come to the conclusion that the appellants are the owners in possession in respect of the remaining four plots, the learned Judge ought to have granted the relief of injunction in the manner in which such declaration was granted. Learned Judge ought to have molded the relief and granted such injunction. To that extent, the impugned judgments passed by the Courts below 12 deserve to be modified. 8. Upon consideration of the material on record and taking note of the evidence adduced by the parties, I find that the Courts below were justified to come to the conclusion that the boundaries as claimed by the appellants do not correspond with the documents at Exhibit 5A but however considering that both the Courts below have concurrently granted the declaration as prayed for to the effect that the appellants are the owners in possession of the four properties vis-a-vis the specified plots as mentioned in the judgments passed by the learned trial Judge, the relief of permanent injunction with regard to the suit portion of the property whereby declaration has been granted ought to have been granted by the learned trial Judge against respondents no.1 to 4. 9. In view of the above, I answer the substantial question of law taking into consideration the procedure as was prevailing as on the date of filing of the suit, when the subject matter of the property was the immovable property the boundaries in the Land Registration documents with the number would be sufficient to identify such property. Merely because the sketch is not to scale 13 does not by itself disentitle the parties to rely upon such sketch, once the contents thereof have been proved in accordance with the provisions of the Indian Evidence Act and the respondents have not disputed such identity in the written statement. 10. With regard to the second substantial question of law, it is my considered view that the learned Judge ought to have granted the permanent injunction in respect of which declaration of title and possession was granted in favour of the appellants, as the learned Judge came to the conclusion that the boundaries as claimed by the appellants do not tally with the boundaries as shown in Exhibit 5A. 11. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and decree passed by the Courts below are modified to the effect that besides the reliefs granted by the Courts below the respondents no.1 to 4 as well as their agents are restrained by permanent injunction in any manner interfering with the properties namely two lots consisting of coconut trees and one lot of paddy field in the property Devachem Batulem; one lot consisting of 14 coconut trees of Tollem Asvem; one bigger lot consisting of coconut trees and one lot of paddy field in Braman Cungo and two lots of coconut trees in the property Haran. (iii) The appeal stands disposed of in the above terms. (iv) The suit filed by the appellants stands decreed in the above terms. (v) Appeal stands disposed of with no order as to costs. F.M. REIS, J. NH/-