- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. SECOND APPEAL NO. 45 OF 1999. 1. Shobhanbhai Narayan Kekar (Quercar), major, Spinster, landlady, residing at Kerim, Pernem Taluka through her lawful attorney Shri Yeshwant Narayan Kerkar, major, Landlord, residing at Kerim, Pernem Taluka. 2. Yeshwant Krishna Mandrekar, major, son of Krishna Sakharam Mandrekar, agriculturist, residing at Bhandarwado Paliem, Pernem Taluka. 2(a) Sakharam Y. Mandrekar, son of Yeshwant Mandrekar, aged about 42 years, agriculturist. (b) Saraswati S. Mandrekar, wife of Sakharam Mandrekar, housewife. (c) Vilas Y. Mandrekar, son of Yeshwant Mandrekar, aged about 28 years, agriculturist. (d) Krishna Y. Mandrekar, son of Yeshwant Madrekar, aged about 19 years, student. (e) Vimal Y. Mandrekar, daughter of Yeshwant Mandrekar, aged about 30 years, All residing at Bhandar Wado, Paliem, - 2 - Pernem, Goa – 403 524. (f) Ashiyana Eknath Naik, daughter of Yeshwant Mandrekar, married to (g) Eknath Janardhan Naik, major, married. Both resident of H-8, New Sainath Nagar, Lodha Marg, Achole, Nalasopara (East), Vasaye, Dist. Thane. 3 Mrs. Rohini Yeshwant Mandrekar,major, wife of no. 2 above, agriculturist, residing at Bhandarwado, Paliem, Pernem, Taluka .......... Appellants. Versus 1 Shri Ladu alias Shantaram Savlaram Nhanji, aged about 50 years, agriculturist. 1(a) Bablo Ladu Nhanji, son of late Ladu alias Shantaram S. Nhanji, married to 1(a)(i) Miss Shefali Bablo Nhanji, daughter of late Bablo Nhanji, 1(a)(ii) Master. Shubham Bablo Nhanji, son of late Bablo Nhanji, both residents of Bandarwado, Palyem, Pernem, Goa, through their guardian Smt. Babita Bablo Nhanji. - 3 - 1(b) Babita Bablo Nhanji, Both residents of Bandarwado, Palyem, Pernem, Goa, 1(c) Sandhya Ladu Nhanji, daughter of late Ladu alias Shantaram S. Nhanji, married to 1(d) Ajit Sgun Moraskar, Both residents of Chawdewada, Parse, Pernem- Goa. 2 Shrivram Savalaram Nhanji, aged 40 years, Bullock Cartman, 2(a) Shrimati Shivaram Nhanji, wife of Shivaram Bhanji, residinga t Bhandarwada, Playe, Pernem, Goa. ( Deleted as per order dated 10.2.2010.) 2(b) Rajendra/Santosh Shivaram Nhanji son of Shivram Nhanji, aged about 40 years, employee (L.I.C.) 2(c) Satyashila Rajendra Nhanji wife of Rajendra Nhanji, housewife. 2(d) Savlaram Shivaram Nhanji son of Shivram Nhanji, aged 35 years, agriculturist. 2(e) Surekha Savlaram Nhanji wife - 4 - of Savlaram Nhanji, housewife. 2(f) Arun Shivaram Nhanji, son of of Shivaram Nhanji, aged 29 years, agriculturist.( Deleted as per order dated 6.11.2006 passed in MCA no. 698/2006.) 2(g) Supriya Shivaram Nhanji, daughter of Shivaram Nhanji, aged 20 years. All residing at Bhundarwada Palye, Pernem Taluka, Goa – 403 524, 2(h) Pramila Shivaram Nhanji daughter of Shivaram Nhanji, married to 2(i) Ramdas Vishnu Naik/ Satordekar major, married. Both resident of Karapur, Bicholim, Goa. 3 Vasant Savalaram Nhanji, aged 35 years, married, mason. (since deceased) through legal heirs:- 3(a) Smt. Mandiri Vassant Nanji, widow; 3(b) Miss. Usha V. Nanji, daughter; 3(c) Premnath V. Nanji, Son; 3(d) Balika V. Nanji, daughter; 3(e) Nandakishor V. Nanji, son; - 5 - All residing at Bhandarwado, Palyem, Pernem Taluka. 4 Ekanath Savalaram Nhanji, aged 28 years, unmarried, employee. 5 Manohar Fato Nhanji, aged 35 years, mason. 6 Anant Fato Nhanji, aged 45 years, mason (since deceased) through legal heirs:- (a) Smt. Kalpana A. Nhanji alias Sushanti Shiva Kerkar, daughter of Anant Fato Nhanji, age 45 years, widow of late Shiva B. Kerkar. (b) Mr. Shiva B. Kerkar (since deceased) through legal heirs:- (i) Miss. Sukanti Shiva Kerkar, daughter of late Shiva Kerkar, aged 18 years, (ii) Miss. Shubhangi Shiva Kerkar, daughter of late Shiva Kerkar aged 16 years, (iii) Miss. Swati Shiva Kerkar, daughter of late Shiva Kerkar, aged 15 years, (iv) Miss. Shreya Shiva Kerkar, daughter of late Shiva Kerkar, aged 13 years, All resident of Marad, - 6 - Sangolda, Saligao, Bardez, Goa. (c) Mr. Chandrakant Anant Nhanji, son of late Anant Fato Nhanji, age 43 years, (d) Mr. Gurudas Anant Nhanji, son of late Anant Fato Nhanji, unmarried, age 38 years, Both resident of Bhandarwado, Palyem, Pernem, Goa. (e) Mrs. Lata Anant Nhanji alias Sushma S. Raul, daughter of late Anant Fato Nhanji married to (f) Mr. Shantaram S. Raul, Both resident of Bhaidawada, Korgao, Pernem, Goa. Pin no. 403512 (g) Mrs. Geeta Anant Nhanji alias Geeta R. Korkankar, daughter of late Anant Fato Nhanji married to (h) Mr. Ramesh Vishnu Korkankar, Both resident of Korkanwada, Arambol, Pernem, Goa, pin no. 403524. 7 Dharma Fato Nhanji, aged 30 years mason. 8 Dattaram Pandurang Nhanji, (since deceased) through legal heirs:- - 7 - 8(a) Deepali Dattaram Nhanji wife of late Dattaram N. Nhanji 8(b) Dashmita Dattaram Nhanji daughter of late Dattaram N. Nhanji 8(c) Pranita Dattaram Nhanji daughter of late Dattaram N. Nhanji 8(d) Pranaya Dattaram Nhanji son of late Dattaram N. Nhanji 8(e) Pandurang Dattaram Nhanji son of late Dattaram N. Nhanji. All residing at Bhandar Wado, Paliem, Pernem-Goa. 9 Sitaram Dharma Nhanji, aged 60 years, agriculturist. (since deceased) through legal heirs:- 9(a) Smt. Anusuyabai Sitaram Nhanji, widow of Shri Sitaram Nhanji, Bhagwaddo, Morjim, Pernem, Taluka, residing at Bandarwado, Palyem, Pernem, Taluka. 9(a)(i) Smt. Malkumi Damodar Saptoji, wife of late Damodar G. Saptoji, aged 70 years. 9(a)(ii) Smt. Gulabi Damodar Saptoji, d/o. Late Damodar G. Saptoji married to 9(a)(iii) Mr. Rama Naik Kerkar - 8 - (expired) 9(a)(iv) Miss. Rajeshwari Rama Naik Kerkar, All residing at Bhagwaddo, Morjim, Pernem, Taluka 9(a) (v) Mrs. Mira Damodar Saptoji, d/o. Late Damodar Saptoji, married to 9(a) (vi) Mr. Sakharam Mahadev Kerkar, 9(a)(vii) Miss. Sita Sakharam Kerkar, All residing at Thorlibag, Aradi, Keri, Goa. 9(a)(viii) Mrs. Yeshu Damodar Saptoji, d/o. Late Damodar Saptoji married to 9(a)(ix) Mr. Sunil Bhikaji Bhosle, 9(a)(x) Miss. Sunita Sunil Bhosle, All residing at Gude, Siolim, Goa. 9(a) (xi) Mr. Ramesh Damodar Saptoji, s/o. Late Damodar Saptoji, married to 9(a)(xii) Mrs. Shima Ramesh Saptoji, Both residing at Bhagwaddo, Morjim, Pernem, Taluka. 9(a) (xiii) Mr. Anant Damodar Saptoji, S/o. Late Damodar Saptoji, married to - 9 - 9(a) (xiv) Mrs. Anita Anant Saptoji, Both residing at Bhagwaddo, Morjim, Pernem Taluka. 9(a) (xv) Mrs. Lalita Damodar Saptoji, d/o. Late Damodar Saptoji married to 9(A)(xvi) Mr. Vinod Narayan Naik, 9(A)(xvii) Miss. Vinaya Vinod Naik, All residing at Pajifond, Margao, Goa, 9(a)(xviii) Mrs. Surekha Damodar Saptoji, d/o. Late Damodar Saptoji married to 9(A)(xix) Mr. Naresh Ramji, 9(a)(xx) Miss. Nilima Naresh Ramji, All residing at Via-Dongar, Parse, Pernem, Goa. 9(a)(xxi) Mr. Mahadev Damodar Saptoji, s/o. Late Damodar Saptoji married to 9(a)(xxii) Mrs. Madhavi Damodar Saptoji, Both residing at Bhagwaddo, Morjim, Pernem, Taluka. 9(a)(xxiii) Mrs. Shobha Damodar Saptoji, d/o. Late Damodar Saptoji married to 9(a)(xxiv) Mr. Sudan Harishchandra Parsekar, - 10 - 9(a)(xxv) Miss. Suman Sudan Parsekar, All residing at Sarve Vado, Guirim, Mapusa, Goa. 9(a)(xxvi) Miss. Sunita Damodar Saptoji, d/o. Late Damodar Saptoji, residing at Bhagwaddo, Morjim, Pernem, Taluka. .......... Respondents. Mr. Sudin Usgaonkar, Advocate for the Appellants. Mr. J. P. Mulgaonkar, Advocate for the Respondents. CORAM:-A.P. LAVANDE, J. DATE:-28 th SE PTEMBER, 2010. ORAL JUDGMENT By this Second Appeal the appellants take exception to the Judgment and decree dated 19.4.1999 passed by the Additional District Judge, Panaji in Regular Civil Appeal no. 3/1999 setting aside the Judgment and decree dated 30.12.1998 passed by the Civil Judge, Senior Division, Mapusa in Regular Civil Suit No. 291/1981/A by which the suit filed by the appellants/plaintiffs against the respondents /defendants was decreed. The parties shall hereinafter be referred as per their status before the trial Court. - 11 - 2. Briefly, the facts relevant for the disposal of the appeal are as under:- The plaintiffs filed the above referred suit seeking reliefs of declaration that they have got half right in four properties more particularly described in the plaint. The plaintiffs also sought relief of injunction in respect of 11 plots mentioned in schedule 'A' to the plaint. The defendants contested the suit. The trial Court framed the following issues in the suit:- 1 Whether the suit is bad due to mis-joinder of parties?OPD 2 Whether the plaintiffs prove that the properties covered by Matriz No. 32, 35, 39 & 53 form half of the portions of the suit property and the said half portions was owned by Narayanrao Yeshwant Kerkar and his wife during his lifetime and after their death by virtue of Order dated 23.4.1960 passed in Inventory Proceedings the Plaintiff No. 1 became the owner of the same. And the properties covered by Matriz Nos. 31, 34, 38 and 52 form part of the other half of the suit properties which belong to the defendants ? 3 It may be declared that under Sale Deed dated 4-1-1972 the Plaintiff No. 1 has sold elevan plots mentioned in schedule 'A' annexed to the Plaint to Krishna Mandrekar and Namdeo Krishna Mandrekar out of her said half portions of the suit properties and upon the death of Krishna Mandrekar the said elevan plots are owned and possessed by Plaintiff No. 2, 3 and the said - 12 - Namdeo Krishna Mandrekar & his wife ? 4 Whether the plaintiffs are entitled to permanant injunction to restrain the defendants from entering into or interfering in any manner in the said elevan plots mentioned in schedule ''A'' annexed to the plaint? 5 Whether the Plaintiff Nos. 2 & 3 Mandrekars and Jadhavas for plaintiffs cultivated half portion of suit properties in monsoon of 1981 ? 6 Whether the plaintiffs are entitled to reliefs ? On behalf of the plaintiffs five witnesses were examined. The plaintiffs also produced several documents in support of their case. On behalf of the defendants, the defendant no.1 stepped in the box. The trial Court upon appreciation of the evidence, oral and documentary, led by the parties answered the issues in favour of the plaintiffs and consequently decreed the suit. 3. Aggrieved by the Judgment and decree passed by the trial Court the original defendants preferred Regular Civil Appeal no. 3/1999 before the District Court at Panaji, which was made over to Additional District Judge, Panaji. The Additional District Judge, by Judgment and decree dated 19.4.1999 allowed the appeal, interalia, - 13 - holding that the plaintiffs have not proved the identity of the properties in respect of which injunction was sought by them. 4. Aggrieved by the Judgment and decree passed by the lower Appellate Court, the plaintiffs have filed the present appeal. The appeal was admitted on following substantial questions of law:- I. Was the first Appellate Court commit illegality in not granting prayer (a) and first declaration in prayer(b) in view of the clear findings in support of the said prayer that the Appellants had established their right to half of the suit property? II. Was it not incumbent on the first Appellate Court whilst reversing the decree of the Trial Court, to reassess the entire evidence in detail and not discard it in one sentence stating that it does not inspire confidence? III In the light of the proceeding, on whom the burden of proof lay? 5. Mr. Sudin Usgaonkar, learned counsel for the appellants/ plaintiffs submitted that in support of their case the plaintiffs have - 14 - examined five witnesses to establish their title to the suit properties as well as the possession in respect of the 11 plots in respect of which injunction was sought by them. However, the lower Appellate Court in the entire judgment has neither referred to the evidence of the four witnesses except PW1 examined on behalf of the plaintiffs and as such has failed to discharge its functions as the first Appellate Court. Learned Counsel for the plaintiffs placed reliance upon the Judgment of Apex Court in the case of Santosh Hazari Vs. Purshottam Tiwari, (dec) by L.R's (2001) 3 SCC 179. Mr. Usgaonkar, submitted that the first Appellate Court has to reassess the entire evidence led by the parties before recording the findings in the Judgment. According to Mr. Usgaonkar, the lower Appellate Court has failed to exercise jurisdiction in terms of law laid down by the Apex Court in the case of Santosh Hazari(supra) and therefore the impugned Judgment and decree deserves to be quashed and set aside and the matter remanded to the Lower Appellate Court for fresh decision. 6. Per contra, Mr. Mulgaonkar, submitted that the lower Appellate Court has considered the entire evidence led by the parties. In the alternative, Mr. Mulgaonkar submitted that in the event this court is inclined to remand the matter, the remand has to be to the trial - 15 - Court and not to the first Appellate Court, since the trial Court has not given findings on the issue involved in the suit and more particularly on the aspect of possession. According to Mr. Mulgaonkar the trial Court has also not analysed the evidence which the trial Court is bound to do. Mr. Mulgaonkar submitted that in the event this Court is inclined to remand this matter, the remand be made to the trial Court and not to the first Appellate Court. 7. I have considered the rival submissions and perused the record. 8. Perusal of the impugned Judgment passed by the lower Appellate Court discloses that in the entire Judgment the Court has only referred to the evidence of PW1 and not has analysed the evidence of other four witnesses of the plaintiffs namely PW2 to PW5 except stating that the evidence of the plaintiffs' witnesses does not inspire confidence. In the case of Santosh Hazari( supra) the apex Court dealing with the aspect of jurisdiction by the first Appellate Court and the second Appellate Court has observed thus in paragraph 15:- 15. “A perusal of the judgment of the trial court shows that it has extensively dealt with the - 16 - oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court - 17 - agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material - 18 - irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai) The rule is — and it is nothing more than a rule of practice — that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation - 19 - cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one. 9. In the present case the lower Appellate Court has reversed the decree passed by the trial Court. Therefore it was all the more necessary for the lower Appellate Court to analyse the entire evidence led by the plaintiffs, more particularly of the four witnesses who were examined in support of the plaintiffs' case. Indisputably, this exercise has not been done by the lower Appellate Court. Therefore the lower Appellate Court has exercise the jurisdiction contrary to the principles laid down by the Apex Court in the case of - 20 - Santosh Hazari(supra). 10. In so far as the argument of learned Counsel Mr. Mulgaonkar, that the trial Court has also not discussed the evidence more particularly regarding the possession of 11 plots in respect of which injunction was sought by the plaintiffs is concerned, I do not find it necessary to decide the same in as much as even if the trial Court does not analyse the evidence led by the parties, the first Appellate Court is well within its powers to analyse the entire evidence led by the parties and come to its own conclusion in case trial Court fails to analyse the evidence led by the parties. The first Appellate Court is bound to reassess the entire evidence and give its own findings. Therefore even if Mr. Mulgaonkar is right in his submission it would not be proper for this Court to remand the matter to the Trial Court for reassessment of the entire evidence led by the parties. This Court exercising the jurisdiction of Second Appellate Court would be justified in remanding the matter for reassessment of the entire evidence led by the parties to the first Appellate Court. 11. In view of the above, I am of the considered opinion that impugned Judgment and decree dated 19.4.1999 passed by the - 21 - Additional District Judge at Panaji in Regular Civil appeal no. 3/1999 is liable to be quashed and set aside and is hereby quashed and set aside and the Lower Appellate Court is directed to decide the appeal a fresh after hearing the parties, bearing in mind the principle laid down by the Apex Court in the case of Santosh Hazari(supra) and in accordance with law. 12. In view of above discussions the substantial questions of law at serial no. II is answered in favour of the appellants. In view of the finding on said substantial question of law it is not necessary for me to answer the substantial questions of law no. I and III. 13. In the result therefore:- 1. The Appeal is allowed. 2. The Judgment and decree dated 19.4.1999 is quashed and set aside. 3. Parties shall appear before the lower Appellate Court on 16.11.2010 at 10.00a.m. 4. The lower Appellate Court shall decide the appeal in the light of the directions given above and in accordance with law. - 22 - 5. Having regards to the facts and circumstances of the case, the parties to bear their own costs. 14. It is made clear that I have not expressed any opinion on the merits of the rival claim and all the rival contentions are kept open. 15. Interim order dated 31.8.2002 granted by this Court shall continue to remain in force till the disposal of the appeal by the lower Appellate Court. Since the suit was filed in the year 1981, the lower Appellate Court to dispose of the appeal expeditiously and in any case on or before 30.4.2011. A. P. LAVANDE, J. vn*