… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.29 OF 2002 1 Smt. Yeshodi Chandru Naik, of major age, housewife and her husband, 2 Shri Chandru Satu Naik, of major age, service, Both residing at Mencurem, Taluka Bicholim,( Goa) … Appellants. Versus 1 Shri Gurunath Raghuvir Shetye, of major age, unmarried, service; 2 Shri Zulu alias Dilip Raghuvir Shetye, of major age, unmarried, service; 3 Shri Santosh Pandu Shetye, of major age, married, service; 3A Smt. Sunita Santosh Shetye, of major age, married, housewife; 4 Shri Sham Pandu Shetye, of major age, unmarried, service; 5 Shri Ganesh Shankar Shetye, of major age, unmarried, service; 5A Smt. Saraswati Ganesh Shetye, of major age, married, housewife; … 2 … 6 Shri Yeshwant Surya Shetye, of major age, married, music teacher and his wife, 7 Smt. Kalyan Yeshwant Shetye, of major age, married, housewife; 8 Shri Zipa Jaideo Shetye, of major age, married, agriculturist and his wife, 9 Smt. Radhabai Zipa Shetye, of major age, married, housewife, 10 Shri Nilu Jaideo Shetye, of major age, married, agriculturist and his wife, 11 Smt. Yamuna Nilu Shetye, of major age, married, housewife, 12 Shri Ramesh Jaideo Shetye, of major age, married, agriculturist and his wife, 13 Smt. Rashika Ramesh Shetye, of major age, married, housewife, 14 Shri Prakash Jaideo Shetye, of major age, married, agriculturist and his wife, 15 Smt. Anajani Prakash Shetye, of major age, married, housewife, 16 Shri Mhalu Vithu Shetye, of … 3 … major age, married, agriculturist and his wife, 16A Smt. Kashibai Mhalu Shetye, of major age, married, housewife, 17 Shri Mahadeo Vithu Shetye (deceased) of major age, married, service and his widow and legal representative the respondent no.18, 18 Smt. Parvati Mahadeo Shetye, of major age, married, housewife, 19 Shri Mohan Vithu Shetye, of major age, married, agriculturist and his wife, 20 Smt. Jayashree Mohan Shetye, of major age, married, housewife, 21 Smt. Lilawati Zilu Shetye, of major age, married, housewife, 22 Shri Shripad Zilu Shetye, of major age, married, service and his wife, 23 Smt. Sharada Shripad Shetye, of major age, married, housewife. 24 Shri Pundalik Babgo Shetye, of major age, married, agriculturist (since deceased through LR's) and his wife, … 4 … 24(a) Shri Krishna Pundalik Shetye, 24(b) Smt. Reshma Krishna Shetye, both residing at Nagali Taleigao, Ilhas Goa. 24(c) Shri Sabaji Pundalik Shetye, 24(d) Smt. Shushma Sabaji Shetye, both residing Behind Holy Family High School, Pick & Carry Shop, Socorro, Bardez, Goa. 24(e) Shri Babago (Bharat) Pundalik Shetye, 24(f) Smt. Joasana Babago Shetye, both residing at Nagali, Taleigao, Ilhas Goa. 24(g) Shri Ravlu Pundalik Shetye, 24(h) Smt. Sadhana Ravlu Shetye, both residing Behind Holy Family High School, Pick & Carry Shop, Socorro, Bardez, Goa. 24(i) Shri Chandrakant Pundalik Shetye, 24(j) Smt. Bhageshree Chandra- kant Shetye, both residing Behind Holy Family High School, Pick & Carry Shop, Socorro, Bardez, Goa. 24(k) Shri Sanjay Pundalik Shetye, Behind Holy Family High … 5 … School, Pick & Carry Shop, Socorro, Bardez, Goa. 24(l) Shri Santosh Shetgaonkar, 24(m) Smt. Meera Santosh Shetgaonkar, both residing in Plot No.15-E, Housing Board, Ganeshpuri Mapusa, Bardez Goa. 25 Smt. Gopika alias Anusuya Pundalik Shetye, of major age, married, 26 Shri Pandu Dharma Shetye (deceased) of major age, married, Represented by his legal representatives, Respondent nos. 3, 3A, 4 and 27. 27 Smt. Baya Pandu Shetye, of major age, married, housewife, 28 Smt. Anawali Bhika Shetye, of major age, widow, housewife, 29 Shri Mahabaleshwar Bhika Shetye, (deceased) of major age, married, agriculturist, Represented by his legal representatives. 29A Kum. Vaman Mahabaleshwar Shetye, minor, through guardian, respondent no. 32. 29B Kum. Preetam Mahabale- shwar Shetye, minor, through guardian, respondent no. 33. … 6 … 30 Smt. Manisha Mahabeleshwar Shetye, of major age, housewife, 31 Shri Suresh Bhika Shetye, of major age, married, agriculturist, And his wife, 32 Smt. Sujata Suresh Shetye, of major age, married, housewife, All residents of Mencurem, Taluka Bicholim, (Goa). 33 Smt. Indubai Saji Shet, of major age, housewife, and her husband, 34 Shri Saji Venku Shet of major age, married, both residents of Kairatwada, Revora, Taluka Bardez, (Goa). 35 Smt. Anandi alias Sudha Jaganath Shetgaonkar, of major age, housewife, and her husband. 36 Shri Anant Jagannath Shetgaonkar, of major age, married, Both residents of District Chapel, Near Lake Baina, Vasco-da-Gama(Goa). 37 Smt. Rukmini Pandurang Raut, widow of Pandurang Raut, of major age, Residing at Madhlawada, Sal, Bicholim, (Goa). … Respondents. Mr. S. D. Lotlikar, Senior Advocate with Mr. K. B. Surjuse, … 7 … Advocate for the appellants. Mr. Sudin Usgaonkar with Ms. A. Pereira, Advocates for the respondents. CORAM :- U. D. SALVI,J. RESERVED ON : 5 th August, 2010. PRONOUNCED ON : 30 th August, 2010. JUDGMENT : Judgment and decree dated 13/12/2001 of learned Additional District Judge, Mapusa allowing the appeal- Regular Civil Appeal No.32/2000 and setting aside the judgment and decree dated 28/01/2000 passed by the learned CJJD, Bicholim is assailed in the present second appeal. 2. Memo of appeal raised the following substantial questions of law : (a) Whether in view of the fact that the trial Court had accepted the case of the appellants of being owners in possession of the suit property on a preponderance of probability upon considering the documentary evidence read in combination with the oral evidence establishing actual possession of the appellants in respect of the suit property, the Additional District Judge was justified in reversing the judgment and decree of the trial Court by … 8 … piecemeal consideration of the documentary evidence isolated from the oral evidence ? (b) Whether in the absence of a document of title in form of land registration clinching the issue of ownership in favour of either of the parties, the document in the form of Matriz certificate along with unchallenged entry of the name of the one of the appellants in the record of rights, taken in combination with the factum of possession, was liable to be considered by the Court for coming to the conclusion as to whether either of the parties was the owner and /or in possession of the suit property ? (c) Whether, without recording any categorical findings as to the possession in respect of the suit property, the learned Additional District Judge could have reversed the judgment of the trial Court ? The appeal was admitted on the said substantial questions of law vide order dated 11th September, 2003. 3. Subject matter of the dispute- the suit property, is described in the plaint as a property registered in the Land Revenue Office vide matriz predial under No.373 in the name of late Chandru Vithu Naik, the grandfather of the plaintiff No.2 and made of 2 parts by village road passing through middle- the southern part surveyed under survey no.37/11/A and northern part forming part of survey no.88/2 and … 9 … bounded, on the east by the property of Pandu S.O.Shetye, West by the property of Chandru Vithu Naik, North by the rivulet or nallah and South by road. 4. According to the appellants/ plaintiffs, they have their house and Court yard in survey no.37/11A ; and the suit property being the part of survey no.88/2 is protected by wooden fencing enclosing therein a bathroom, room for storing fire wood, jack-fruit tree, coconut sapling, cow dung pit and the place for storing hay (cuddem). The appellants/ plaintiffs annexed a plan showing the suit property to the plaint and pleaded that they and their predecessors are/ were always enjoying and possessing the suit property without any interruption and or interference of anyone whomsoever peacefully, openly and as of right for more than 40 years; and as such have acquired the right of adverse possession/ prescription. 5. The cause of action for the suit, the appellants/ plaintiffs pleaded, arose firstly on 30th October, 1988 when the defendant nos. 1,5, 8 and 9 illegally cut the wooden fencing of the plaintiffs around the suit property, and secondly, arose on 22nd May, 1989 when the defendant nos. 6 … 10 … and 7 trespassed into the suit property and erected a temporary structure behind the house of the plaintiffs, and thirdly, on 28th May, 1989 when the defendant nos.1 to 5, 8, 9, 26, 27 and 31 lawfully assembled in the suit property and tried to destroy the said wooden fencing, and fourthly in the third week of April, 1991 when the defendant nos. 6 and 7 brought laterite stone to erect a pukka construction in the suit property, and lastly on 9th June, 1991 when the defendant nos. 1 and 2 made illegal construction in survey no.88/2 and threatened the plaintiffs. The plaintiffs, therefore, prayed for (i) the declaration as owners in possession of the suit property (ii) permanent injunction restraining the defendants from disturbing the possession of the plaintiffs in respect of the suit property and (iii) directions to the defendant nos. 6 and 7 to demolish and remove the kachcha structure or hut erected by them in survey no. 37/11/A and to hand over the vacant possession of the land thus occupied. 6. The defendant nos. 1, 2, 8, 9, 10, 11, 12, 13, 14, 15, 24 and 25 resisted the suit with the written statement dated 5th September, 1991. According to them, the matriz No.373 is only in respect of the house property belonging to late Chandru Vithu Naik. However, they denied that the entire … 11 … suit property was registered in the Land Revenue Office under the said matriz. They pleaded that the said property is enrolled in Land Revenue Office of Bicholim under matriz No.374 in the name of Pandu S.O. Shetye, under matriz no.370 in the name of Zullu Kesar Shetye and under matriz no.380 in the name of Rama Gopal Shetye- the ancestor of the defendants. They further clarified that the said house of Chandru Vithu Naik used by the plaintiffs as their residence is in the plot bearing survey no.37/11/A and they are in possession and enjoyment of survey no.88/2, wherein one coconut tree, 5 mango trees, two jack-fruit trees, 3 bendi trees, storehouse and haystack of defendant Nos. 1 and 2 and cowshed of defendant no.5 as well as one well fall. They further contended that the plaintiff no.2 had filed an application under the Mundkar Act before the Mamlatdar of Bicholim – Application No.MAH/MND/MEN/1/82 for making claim as mundkar of the defendants and the said application was dismissed for default. They further pleaded that the name of the plaintiff no.2 was mistakenly recorded in occupant's column in Form No.I and XIV in respect of the survey No.88/2 without any right of whatsoever nature to the suit property; and similarly the name of the plaintiff no.2 came to be recorded as occupant in survey no.37/11/A. All … 12 … other facts were denied in the said written statement. 7. The other defendants with the written statement dated 18th October, 1991 while affording resistance to the suit specifically pleaded that the property surveyed under survey no.37/11A, 37/11B and 88/2 situate at village Mencurem and popularly known as Gharbhat or Gharbhatule stood inscribed in the name of Vithal Mahadeo Shetye Kesarkar at folio no.2 of B5 new under no.1590, and as such was owned and possessed by his legal representatives - the defendant nos.16,23. Existence of the house of Shetye occupied by the plaintiffs in the said property was confirmed by these defendants. On all other aspects, these defendants towed the line of the other co-defendants. 8. Initially, the following issues were framed 1. Whether the plaintiffs prove that they are owners in possession of the suit property surveyed under no. 37/11-A and part of survey no. 88/2 as mentioned in para 9 of the plaint and in the plan attached? 2. Whether the plaintiffs prove that the defendants have no right to the suit property? 3. Whether the defendants prove that the plaintiffs have no locus standi to file the present suit ? … 13 … 4. What relief ? What order ? Later on an additional issue was framed as under : Whether the plaintiffs prove that they have acquired title to the suit property by adverse possession / prescription ? However, this additional issue was struck off leaving the parties to contest the suit on the initial issues. 9. After hearing the parties, the learned Civil Judge,J.D., Bicholim answered the contested issues in favour of the plaintiffs and declared the plaintiffs as owners in possession of the suit property and restrained the defendants from disturbing the possession of the plaintiffs in respect of the suit property and ordered the defendant Nos. 6 and 7to demolish the structure constructed by them in survey no.37/11/A and to hand over vacant possession of the said property. The learned Civil Judge took into consideration the matriz record as well as the revenue record and commented vis-a-vis the cases cited on behalf of the defendants – Corporation of City of Bangalore Vs. M. Papiya and another; AIR 1989 SC 1809 and Mrs. Deeksha Holding Ltd. Vs. Sita … 14 … Ram Naik Dessai and another; 1998 (2) GLT 443 that the matriz record can be used as a piece of evidence and the Court in deciding the matter has to take into consideration the entire evidence. It appears, the learned Civil Judge took into account the boundaries of property described in the matriz record and as contended by the plaintiffs as the one in relation to the suit property with the matriz predial no.373. The learned Civil Judge further observed that no adverse inference can be drawn from the application for mundkarship placed on record as none of the parties pleaded that the plaintiffs are the mundkars of the defendants and there was no cross-examination of the plaintiffs in that regard. On sifting of the oral and documentary evidence led by the parties, the learned Civil Judge observed that the defendants had failed to prove any semblance of right or better title to the suit property or that they are in enjoyment and possession of the said property. 8. The First Appellate Court framed two points : (i) Whether the trial Court fell in error to hold that the matriz certificate is the document of title in the absence of any other title document and in appreciation … 15 … of the material to decree the suit in favour of the plaintiffs ? (ii) Whether the impugned judgments warrant interference in appeal being either arbitrary, illegal or perverse ? 11. Learned Advocate Lotlikar for the appellants submitted that the First Appellate Court took a restricted view of the matter and completely overlooked the fact disclosed from the matriz record that the boundaries of the suit property extended to nallah on northern side taking into its expanse the part of survey no.88/2 situate beyond the road passing through the suit property. This matriz record, he argued, was in harmony with the survey record, which showed the predecessor of the plaintiffs as the sole occupant of survey no.37/11/A and co-occupant of survey no.88/2 of village Mencurem. In such factual context, he submitted, the judgment of this Court in M/s. Deeksha Holding Ltd.'s case (supra) has been misinterpreted to denigrate the value of the matriz record. Learned Advocate Usgaonkar relying on the judgment in M/s. Deeksha Holding Ltd.'s case submitted that once presumption under Section 105 is available from the records prepared under Land Revenue Code, the … 16 … presumption if any arising under the old existing records ceases to have any value. 12. Learned Advocate Usgaonkar for the respondent further submitted that the matriz record was the result of the administrative exercise aimed at collecting tax revenues from the land and such administrative exercise was undertaken for recovery of land tax under registration diploma no.1785 regulating the land tax. Relying on the judgment reported in Corporation of City of Bangalore's case, he submitted that the question of interpretation of a document such as revenue record not being the document of title is not the question of law; and, therefore, in the instant case, the First Appellate Court's decision in rejecting the matrix certificate being not the document of title, warrants no interference in the second appeal. To further his submission, he placed reliance on the judgments reported in 1995(1) Bombay Cases Reporter 588- Fabrica de Igreza Milagres Vs. Union of India and Ors, 1999(1) GlT 126 – Krishna Vyankatesh Porob Shastri Vs. Sebastiao Luis Fernandes (deceased ) through LRs., (2001)3 SCC 179- Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs. According to him, the First Appellate Court's judgment reflects its conscious application of mind … 17 … and the findings therein are found supported by reasons. 13. Learned Advocate Lotlikar for the appellants submitted that the learned trial Court had taken holistic view of the entire evidence, both oral and documentary, entered into threadbare discussion thereon, and had given reasoned findings at the end of it. As against this, he submitted, the First Appellate Court rushed at the conclusions without taking into consideration the evidence in the examination-in- chief and without assigning any reasons for countering the reasons assigned by the learned trial Court to arrive at contrary finding. Such approach, according to him, is perverse and warrants interference in the second appeal. He submitted that even concurrent finding of the trial Court and the First Appellate Court, if found manifestly unreasonable and unjust being vitiated due to perversity, due to faulty reasoning and due to surmising or misreading of materials on record are susceptible to interference in the second appeal. For reinforcing his submissions, he placed before this Court catena of judgments reported in (2005)13 SCC 91- Ram Chander Vs. Ram Singh @ Bhunde and another, 2006(1) SCC 168- Ramlal and another Vs. Phagua and others, (2001)7 SCC 189 Hafazat Hussain Vs. Abdul Majeed and Ors., 2006(5)SCC … 18 … 545- Hero Vinoth Vs. Seshammal, (2001)3 SCC 179 – Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs. 14. Certainly, matriz record is not the source of title being a document prepared only for the purpose of collection of revenue. However, in conjunction with other documentary evidence it has its own story to tell. Learned Advocate Lotlikar for the appellants pointed out from the reading of the Fabrica de Igreza's case that in given set of facts therein, the learned Single Judge of this Court was prompted to remark that no legal evidenciary value can be attributed also to the said registration (registration of deed of justification of possession in the registration office vide paragraph 14 of the judgment) for the purpose of establishing the ownership title or presuming possession of the land. It can also be understood from the said judgment that matriz document cannot be looked to as a source of possession. 15. In the instant case, matriz certificate Exh.PW1/D under No.373 which is not disputed by the defendants except saying that it pertains only to the house property in occupation of the plaintiffs, significantly, gives boundaries of the property as referred to therein as: on the East by that of … 19 … Pandu S.O.Shetye, on the West by that of Chandru Vithu Naik, on the North by the water drain and on the South by the pathway. It also gives number of urban house property as No. 27. It is the case of the plaintiffs that this pertains only to the house and not the land by virtue of its description as 'urban property' (in Portuguese 'predial urbano'). 14. A look at the legislative diploma No.1785 would clearly reveal that the provisions were made for regulating land tax. Three modalities for assessing of the land tax were provided for under Article 4 therein. Those were Joint, Urban and Rustic. In the sense the urban properties are described under Article 5 therein, the properties referred to in the matriz certificate as 'urban property' needs to be understood. Article 5 of the legislative diploma 1785 therein reads as under : “Article 5 – for the purpose of provision under the preceding Article, the following are deemed as urban properties : a. Buildings incorporated in the soil, whatever may be the material used in the construction, when it is meant for dwelling, commercial purpose or for installing any industry that is not exclusively meant for exploration of the soil, and … 20 … plot of land that may serve therein as mere recreation or common land, whatever may be its value. b. Buildings incorporated in the soil even though they are complementary of any agricultural exploration, provided that they are situated outside the latter. c. Constructions that form a part of rustic properties and are meant or used as residence of its landlords or usufructuaries, their attorneys, administrators, tenants or members of their families, and all the construction situated within such rustic properties and which are used for the purpose of alien to the exploration of soil. d. Place of land that meant for construction situated within urban zone i.e. demarcated or that may be demarcated in the cities of Panaji, Mapusa, Margao and Vasco-da-gama.” Clause (a) of Article 5 is relevant for the purpose of this case. It reveals that the property described in matriz certificate does not mean that it is only the house situated therein to which it refers. It also refers to plot of land whose boundaries are referred to therein. 17. The learned First Appellate Court while interpreting the matriz certificate Exh.PW1/D read it as the one referring only to the house property and completely … 21 … overlooked the fact that the said matriz certificate gave boundaries which were not in conflict with the revenue record, particularly form No.I and XIV pertaining to survey no.88/2. In the instant case, the trial court took into account matriz certificate as well as the revenue record and in conjunction with the oral evidence gave a finding as to the possession of the suit property. Relying on the judgment in Somnath Berman's case (AIR 1970 SC 846- Somnath Berman Vs. Dr. S. P. Raju and Another), learned Advocate Lotlikar for the appellants submitted that the possession is a sufficient evidence of title as owner, particularly when the defendant's title remains under cloud. In the instant case, the learned trial Court upon considering the evidence, both oral and documentary, gave reasoned findings that they(defendants) did not have semblance of right or better title to the suit property. In such situation, it was incumbent upon the First Appellate Court to have, in words of the Apex Court in Santosh Hazari's case, come into close quarters with the reasonings assign by the trial Court and then assign its own reasons for arriving at different findings while reversing the finding of fact. 18. It appears from the reading of the First Appellate Court's judgment that it failed to deal with the reasoning … 22 … adopted by the trial Court and record its categorical finding as to the possession in respect of the suit property. It ought to have considered the documentary evidence in conjunction with the oral evidence and eschewed the piecemeal approach for reading of the documents. The substantial question of law framed herein are, therefore, answered accordingly. It is, therefore, necessary to remand this case to the First Appellate Court i.e. the Additional District Judge, Mapusa for disposal of the Regular Civil Appeal No.32/2000 afresh in accordance with law. 19. As regards the plaintiffs admission vide application for declaration as mundkar, learned Advocate Lotlikar for the appellants submitted that the learned trial Court had rightly rejected the said admission for the reason of the witness being not confronted with the said application in the cross-examination in order to afford to him an opportunity to tender his explanation and clear the point on the question of admission. He placed reliance on the judgment in Udhamsing's case- (2007) 15 SCC 529- Udham Singh Vs. Ram Singh and another. It would be appropriate for the First Appellate Court to consider the impact of the said application on record and, therefore, no views are