1 IN THE HIGH COURT OF BOMBAY AT GOA Second Appeal No.83 of 2011 1. Shri Prakash Balkrishna Naik Prataprao Sardessai and 2. Smt. Jyoti Prakash Naik Prataprao Sardessai, both resident of Cortalim Goa. …. Appellants V e r s u s 1. Shri Surendra Balkrishna Naik Prataprao Sardessai and 2. Smt. Puspha Surendra Naik Prataprao Sardessai, both resident of Margao … Respondents. Mr. V. P. Thali, Advocate for the Appellants. Mr. R.G. Ramani, Advocate for the Respondents. Coram: A. P. Lavande, J. Date: 25th August, 2011. 2 P.C: Heard Mr. Thali, learned counsel for the appellants and Mr. Ramani, learned counsel for the respondents. 2. By this Second Appeal, the appellants take exception to the judgment and decree dated 7/1/2011 passed by the Adhoc District Judge-2, FTC-II, South Goa, Margao in Regular Civil Appeal No.174/2010 dismissing the appeal against order dated 8/8/2005 passed by the Civil Judge, Senior Division, Vasco-da-Gama in Special Civil Suit No.45/1984/A. 3. The appellants are the defendants in Special Civil Suit No.45/1984 filed by the respondents/plaintiffs in the Court of Civil Judge, Senior Division, Vasco-da-Gama seeking partition of certain properties. The Trial Court by 3 judgment and decree dated 10/12/1996 passed a preliminary decree holding that both the parties were entitled to equal shares in the suit property, against which, First Appeal No.49/97 was preferred by the appellants herein. By judgment dated 22/3/2004, this Court disposed of the appeal, the operative part of which reads thus: “Accordingly, it is hereby directed that the Trial Court shall appoint a Commissioner for the purpose of Section 3 of the Partition Act, 1893 to value the share of the plaintiffs in plot no.51 admeasuring 532 sq.metres, the ground floor of the house existing therein and the well and offer the same for sale to the defendants at a price ascertained by him. The parties are hereby directed to appear before the Trial Court on 5/4/2004. The Trial 4 Court is required to direct the Commissioner to submit his report within a period of three months and thereafter dispose of the suit as expeditiously as possible, considering the same was filed 20 years back. The preliminary judgment/decree shall stand modified to the extent indicated herein above. Appeal shall accordingly be disposed of”. 4. Pursuant to the order passed by this Court, Shri Ernesto Moniz, a registered valuer was appointed as Commissioner by consent of both the parties. The Commissioner after giving an opportunity to both the parties to submit documents, gave his report. The Commissioner valued the share of the plaintiffs at Rs.4,28,055/- (Rupees Four lakhs twenty eight thousand 5 fifty five only). 5. The report of the Commissioner was accepted by the respondents. However, the plaintiffs objected to the said report on several grounds, but the defendants did not specify in the reply as to what would be the exact value of the plaintiffs' share. The Commissioner was cross examined. However, the Trial Court accepted the Commissioner’s report by its order dated 8/8/2005, which reads thus: “..The defendants shall pay Rs.4,28,055/- (Rupees Four Lakhs Twenty Eight thousand and fifty-five only) to the plaintiffs in respect of the share of the plaintiffs in plot no.51 admeasuring 532 sq.mtrs., the ground floor of the house existing therein and the well within 60 days 6 from today, failing which the plaintiffs shall pay the said amount of Rs.4,28,055/- to the defendants in respect of the said premises. In such an event, the defendants shall vacate said premises consisting of the ground floor to the house existing therein. The above share of the plaintiffs in the sum of Rs.4,28,055/- shall be deposited by the defendants in the Court within 60 days, failing which the plaintiffs shall deposit the same. In such an event, either of the parties are at liberty to withdraw the said amount.” 6. Against the said order, Regular Civil Appeal No.174/2010 was preferred initially to this Court which 7 was transferred to the District Court on account of amendment to the Civil Courts' Act which was made over to the Court of Adhoc District Judge (2), FTC-II, South Goa, Margao, The appeal was dismissed by judgment and decree dated 7/1/2011. 7. In support of the appeal, Mr. Thali has urged the following grounds: i) The Trial Court could not have passed an order by which the plaintiffs were permitted to buy the share of the defendants and to that extent, the impugned judgment and decree is patently unsustainable in law and is contrary to the judgment and order dated 22/3/2004 passed in F.A. No.49/1997. Consequently, the Lower Appellate Court could not have upheld that part of the order passed by the trial Court. ii) The impugned judgment passed by the lower Appellate Court is in clear breach of Order 41, Rule 31 of C.P.C and 8 there is not even substantial compliance of the said provisions. iii) The Commissioner committed an error in making valuation of the house and the plot separately and the Commissioner could not have included area of the house in the area of the plot for the purpose of valuation. iv) The Commissioner ought to have valued the part of the property admeasuring 432 sq.mtrs. as lease hold land and could not have valued it as free hold land. v) The Lower Appellate Court has not considered several grounds in support of the appeal which were argued before it. 8. Per contra, Mr. Ramani, learned counsel for the respondents/plaintiffs at the outset conceded that the decree in so far as it permits the plaintiffs to buy the share of the defendants is unsustainable and further submitted that he has no objection if that part of the decree is set 9 aside. However, Mr. Ramani submitted that no fault can be found with the report of the Commissioner and the other findings given by the trial Court as well as by the lower Appellate Court which are borne out from the evidence on record. 9. According to Mr. Ramani, the Commissioner has not valued the area of 262 sq.mtrs twice as contended by the appellants and on the contrary, the Commissioner has acted as per the order passed by this Court in First Appeal no.49/1997. Learned Counsel further submitted that the name of Mr. Ernesto Moniz as Commissioner was suggested by both the parties considering that Mr. Moniz is a man of integrity, his valuation report cannot be faulted. 10. Having considered the rival submissions and having perused the record and the submissions, I find that no case has been made out for admission of the Second Appeal 10 except to the extent of setting aside only a part of the order passed by the trial Court as confirmed by the lower Appellate Court by which option has been given to the plaintiffs to buy the share of the defendants. Consequently, that part of the order dated 8/8/2005 beginning from the word “failing which to the end of the paragraph i.e to withdraw the said amount” is set aside and rest of the decree is maintained, more particularly, having regard to the concession made by the learned counsel for the respondents/plaintiffs. The order/decree passed by both the Courts below stand modified accordingly. 11. In so far as the submission made by Mr. Thali that the Commissioner has valued the ground floor and the area underneath twice is concerned, I do not find any merit in the same. In my opinion, the Commissioner has acted upon the order passed by this Court in F.A no.49/1997 and prepared the report in accordance with the said order. 11 12. In so far as the submission of Mr. Thali that the property could not have been valued as free hold land is concerned, I do not find any merit in it, since such a ground was not raised by the defendants in the written statement. Perusal of the pleadings in the suit disclose that both the parties claimed that they were the owners thereof and at no point of time claim of lease hold right in respect of the suit property was claimed by the defendants. This being the position, I do not find any infirmity in the report prepared by the Commissioner while finding out the value of the share of the plaintiffs. 13. In so far as the submission of Mr. Thali that there is non compliance of Order 41, Rule 31 is concerned, I also do not find any merit in it inasmuch as even if the argument of Mr. Thali is accepted, no case has been made out for interference with the order passed by the trial Court except a 12 part of the order and, as such, remanding the matter to the lower Appellate Court on the ground that there is non- compliance of Order 41, Rule 31 would be an exercise in futility. 14. Lastly, I am of the considered opinion that no interference is warranted having regard to the valuation carried out by the Valuer Mr. Ernesto Moniz. The valuer has valued plot no.51admeasuring 532 square metres, the ground floor admeasuring 262 sq.mtrs and the well at Rs.8,56,110/-. Having regard to the prices of immovable properties in Goa, I am of the considered opinion that the value cannot be said to be shocking so as to warrant interference by this Court in Second Appeal. Moreover, it is to be noted that at no point of time the appellants, except for objecting to the valuation done by the Commissioner specify the exact value of the share of the plaintiffs. On this ground, I am of the considered opinion that this is not a fit case where interference is warranted with 13 the impugned order passed by the trial Court as well as the judgment and decree passed by the lower Appellate Court. No substantial question of law is involved in the appeal. Hence, the appeal is dismissed. 15. At this stage, Mr. Thali, learned counsel appearing for the appellants states that the amount of Rs.2,50,000/- (Rupees two lakhs fifty thousand only) deposited by the appellants during the pendency of the First Appeal no.341/2005 preferred by the appellants before this Court be allowed to be withdrawn by the appellants. 16. Mr. Ramani, learned counsel for the respondents states that since the major part of the order passed by the trial Court is maintained, the respondents are entitled to withdraw the said amount. I find merit in the submission of Mr. Ramani. 17. The said amount was ordered to be deposited 14 by the appellants as a condition for stay of the impugned decree and as such, the respondents are entitled to the said amount of Rs.2,50,000/-, along with accrued interest, if any. 18. Accordingly, the Registry is directed to pay the amount of Rs.2,50,000/- along with accrued interest, if any, to the respondents after a period of eight weeks. The appellants are granted time of four weeks to deposit in this Court the balance amount of Rs.1,78,055/- (Rupees one lakh seventy eight thousand fifty five only). 19. However, the respondents are at liberty to withdraw the said amount after deposit only after a period of eight weeks. In the event the appellants do not deposit the balance amount of Rs.1,78,055/- within a period of four weeks, the respondents shall be entitled to interest thereon at the rate of 9% per annum after expiry of four weeks. 15 20. Second Appeal stands disposed of in aforesaid terms with no order as to costs. A.P. Lavande, J. Ap/-