1 IN THE HIGH COURT OF BOMBAY AT GOA Second Appeal no.49 of 2010 1. Shri Bablo Sukdo Shiddekar, son of Sukdo Bomdo Shiddekar, (since deceased represented by his legal heirs) 1(a) Smt. Laxmi Pandurang Shiddekar 1(b) Shantaram Pandurang Shiddekar (since deceased) 1(c) Smt.Savita Shantaram Shiddekar 1(d) Shri Dashrath P. Shiddekar, 1(e) Kum. Shashikala P. Shiddekar, 1(f) Kum. Kalpana P. Shiddekar. 2. Smt. Bhaguirathi Bablo Shiddekar (since deceased) (deleted as per Order dated 24/7/2007 of the Court) 3. Shri Vishnu Sukdo Shiddekar (since deceased) represented by his legal heirs 3(a) Shri Hanuman Vishnu Shiddekar 3(b) Smt. Harshada Hanuman Shiddekar, 3(c) Shri Shashikant Vishnu Shiddekar, 3(d) Smt. Kesar Atmaram Golkar alias Gaonkar 2 3(e) Shri Atmaram Duglo Golkar Gaonkar, 3(f) Smt. Amrute Pundalik Gaonkar, 3(g) Shri Pundalik Vasudev Gaonkar, 3(h) Smt. Vasanti Krishna Naik alias Usapkar, 3(i) Shri Krishna Narayan Naik alias Usapkar, 3(j) Smt. Satya Vishnu Shiddekar alias Satya Soma Gawas 3(k) Shri Soma Gawas, 4. Smt. Yeshodhi Vishnu Shiddekar (since deceased) All residents of Velguem, Taluka Sattari, Goa, Represented by their Power of Attorney(Respondent no.5) 5. Shri Foto Krishna Gaonkar, residing at Naneli, Taluka Sattari, Goa. …. Appellants V e r s u s 1. Shri Mallappa Dudappa Kumbhar, 2. Smt. Mallappa Kumbhar, both residents of Brahma-Karmali, Taluka Sattari, Goa. …. Respondents Mr. A.F. Diniz, Advocate for the Appellants. 3 Mr. A.D. Bhobe, Advocate for Respondent no.1. Mr. Nigel Da Cost Frias, Advocate for Respondent no.2. Coram: A. P. Lavande, J. Date: 23rd March, 2011. JUDGMENT: Heard Mr. Diniz, learned counsel for the appellants, Mr. Bhobe, learned counsel for respondent no.1 and Mr. Da Costa Frias, learned counsel for respondent no.2. 2. The appeal is admitted on the following substantial questions of law: i) Whether the Order dated 8/9/2009 rejecting the Appellants' application at Exhibit 17 is not vitiated for failure to consider the appellants' plea as regards production of letter dated 18/4/2008 from Assistant Survey and Settlement Officer, Paanji and the plan annexed thereto by way of additional evidence? ii) Whether the impugned judgment and decree 4 dated 16/1/2010 is vitiated on account of inconsideration of above referred letter dated 18/4/2008 and the plan annexed thereto? 3. By consent of the learned counsel heard forthwith. 4. The appellants herein filed Regular Civil Suit No.6/1993 in the Court of Civil Judge, Junior Division, Sattari at Valpoi seeking reliefs of declaration and permanent injunction in respect of property named “Pendrichi Moli” or “Pedrechi Moli” in the village Naneli of Sattari Taluka, surveyed under no.49/3 and 50/0 of village Naneli of Sattari Taluka. The suit was contested by the defendants. By judgment and decree dated 29/9/2007, the learned Trial Judge dismissed the suit, inter alia, holding that the suit property was not identified. 5 5. The plaintiffs filed Regular Civil Appeal no.5 of 2008 before the District Judge-I, Panaji. The lower Appellate Court by judgment and decree dated 16/1/2010 dismissed the appeal upholding the findings given by the Trial Court. The plaintiffs have challenged the same by filing this Second Appeal. 6. Mr. Diniz, learned counsel appearing for the appellants submitted that before the lower Appellate Court the appellants had filed application dated 21/3/2009 under Order 41 Rule 27 of C.P.C. which was dismissed by the lower Appellate Court by order dated 8/9/2009. According to Mr. Diniz the lower Appellate Court ought not to have decided the said application prior to disposal of the appeal in view of the settled legal position that an application under Order 41 Rule 27 of C.P.C has to be considered at the time of final hearing of the appeal. Mr. Diniz further submitted that in any event the lower Appellate Court in 6 the impugned order dated 8/9/2009 has not considered the letter dated 18/4/2008 given by the Assistant Survey and Settlement Officer, Panaji and the plan annexed to it which disclose that the old plan of planta no.18419 of village Naneli of Sattari Taluka provisionally applied by Sucdo Bambdo Sidecar corresponds to new survey no.49/1,2 & 3 and survey no.50/0(part) and, as such non- consideration of the above documents has vitiated the judgment of the lower Appellate Court in as much as the lower Appellate Court has dismissed the appeal on the ground that the property has not been identified. Learned counsel therefore submitted that the impugned decree passed by the lower Appellate Court needs to be quashed and set aside and the matter remanded to the lower Appellate Court for fresh consideration. 7. Mr. Bhobe, learned counsel appearing for respondent no.1 and Mr. Costa Frias, learned counsel 7 appearing for respondent no.2 fairly conceded that the matter deserves to be remanded to the lower Appellate Court. 8. I find merit in the submission made by Mr. Diniz and the concession made by the learned counsel appearing for respondent nos.1 and 2 deserves to be accepted. 9. Firstly, the lower Appellate Court ought not to have decided the application filed under Order 41 Rule 27 of C.P.C before dealing with the appeal on merits in view of the settled legal position. Any application filed under Order 41 Rule 27 of C.P.C has to be decided along with the main appeal, therefore the order dated 8/9/2009 passed by the lower Appellate Court on the application filed under Order 41 Rule 27 C.P.C needs to be quashed and set aside. Since the document dated 18/4/2008 and the plan annexed 8 to it have not been considered by the lower Appellate Court and since both these documents have a direct bearing on the result of the appeal, the impugned judgment and decree dated 16/1/2010 passed by the lower Appellate Court deserves to be quashed and set aside. 10. The substantial questions of law are answered in favour of the appellants. 11. In view of the above, the impugned judgment and decree dated 16/1/2010 passed by the District Judge-I, Panaji in Regular Civil Appeal no.5 of 2008 is quashed and set aside. The order dated 8/9/2009 is also quashed and set aside. The lower Appellate Court is directed to decide the appeal after giving an opportunity of being heard to the parties. The lower Appellate Court shall also decide the application filed under Order 41 Rule 27 of C.P.C along with the main appeal and pass appropriate 9 judgment and order in accordance with law. The parties shall appear before the lower Appellate Court on 21st April, 2011 at 10 a.m. 12. Needless to mention that all contentions of the parties are kept open. 13. The appeal stands disposed of with no order as to costs. A. P. Lavande, J Ap/-