1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.71 OF 2007. 1) Smt. Lalita Sinai Cossambe, widow, resident of Sadolxem, Canacona-Goa. ..... Appellant Versus 1) Communidade of Poinguinim, represented by its Special Attorney Shri Vassudev Vyankatesh Fal Dessai, of major age,landlord, resident of House no.837, Poinguinim, Canacona,Goa. 2) Shri Chandrakant Venkatesh Pai Kir, resident of Sadolxem, Canacona, Goa 3) Smt. Sunilabai alias Suman Lal- Chandra Prabhu Dessai, widow of Lalchandra Prabhu Dessai. 4) Shri Ramkrishna Lalchandra Prabhu Dessai,son of Lalchandra Prabhu Dessai, and his wife, 5) Smt. Sunita Ramkrishna Prabhu Dessai. 6) Shri Dilip Lalchandra Prabhu Dessai son of Lalchandra Prabhu, and his wife. 7) Smt. Asha Dilip Prabhu Dessai, all residents of Shelly, Loliem, Canacona, Goa. 8) Smt.Andrian D'Silva, widow of Daniel D'Silva (Expired) legal heirs are already on record at Sr. Nos. 9 to 13. 2 9) Shri Agnel D'Silva, son of Daniel D'Silva. 10) Smt.Maria Augusta D'Silva, daughter ofDaniel D'Silva married, housewife. 11) Kum. Anastada D'Silva, daughter of Daniel D'Silva 12) Shri Roni D'Silva, son of Daniel D'Silva (expired) and 13) Shri Menino Pereira,son-in-law of Daniel D'Silva, all residents of Paitonde, Sadolxem, Canacona, Goa. 14) Shri Bhiku Vaman Pai, resident of Bhatem, Sadolxem, Canacona, Goa (expired) Legal heirs of Respondent No.14. a) Smt.Sulbha Bhicu Pai Bhatikar, widow, b) Shri Vaman Bhicu Pai Bhatikar, son, married to Smt.Harsha Vaman Pai Bhatikar. c) Smt.Shital Vallabh Velingkar, daughter, married to Shri Vallabh Velingkar d) Smt. Viba Rajesh Pai, daughter,married to Rajesh V. Pai e) Smt. Jyoti Yeshwant Kamat, and her husband Shri Yeshwant V.kamat f) Smt.Sushma Nitin Prabhu, Tendulkar daughter, maried to Shri Nitin Prabhu Tendulkar, 3 all resident of House no.263, Near Post Office, Sadolsem, Canacona-Goa. ..... Respondents Mr. F. M. Reis, Advocate for the appellant. Mr.Sudesh Usgaonkar, Advocate for the respondent No.1. Ms. Sudha Pai Kir, Advocate for the respondent No.2. Mr. V.G.P. Dukle, Advocate for the respondent No.9,10,13 absent. Coram :- A. P. LAVANDE, J. Date of reserving the order :5 th December, 2008. Date of pronouncing the order : 12 th December,2008. ORDER : 1. By this appeal, the appellant takes exception to the judgment and decree dated 13.02.2007 passed by the learned District Judge-III,South Goa, Margao in Regular Civil Appeal No.165/2002 allowing the appeal filed by the respondent No.1 against the judgment and decree dated 30/8/2002 passed by the learned Civil Judge, Junior Division, Canacona in Regular Civil Suit No.85/2000 (new) filed by the appellant herein against the respondents. 2. The parties shall be, hereinafter, referred to as per their status before the Trial Court. 4 3. The plaintiff filed the above suit seeking declaration that she is the owner in possession of an area of 1,35,824 square metres forming part of Survey No.233/1 of Poinguinim village at Canacona. The suit was contested by the defendant No.1. The Trial Court, upon appreciation of the evidence led by the parties, decreed the suit holding that the plaintiff was in possession and enjoyment of the suit portion of the property known as 'WAPEM'. The Trial Court also held that the defendant No.1 did not prove that the plaintiff had encroached upon the sizable portion of the property of the defendant No.1 on the southern side of the suit property. 4. The Lower Appellate Court, in appeal preferred by the defendant No.1, held that the plaintiff had not proved that she was the owner in possession of the suit portion in terms of the plan annexed to the plaint. The Lower Appellate Court also held that the plaintiff had failed to identify the suit property in terms of the plan annexed to the plaint, which was not proved. The Lower Appellate Court also refused to accept the evidence of P.W.2 Sakharam Bhende, who produced the plan Exh.25 and claimed that it tallies with the plan filed along with the plaint showing the area belonging to the plaintiff from Survey No.233/1. Consequently, the Lower Appellate Court reversed the decree passed by the Trial Court. 5 5. Mr. Reis, learned Counsel appearing for the appellant / plaintiff submitted that the findings given by the Lower Appellate Court, are totally perverse and the documents produced by the plaintiff, clearly prove her title to the suit portion of Survey No.233/1. According to the learned Counsel, the findings given by the Lower Appellate Court that the evidence led is beyond the pleadings, is patently unsustainable in law in as much as the plaintiff is only supposed to plead the facts and not the evidence. According to the learned Counsel, although the original plan annexed to the plaint was not proved, Sakharam Bhende,who is P.W.2, had stated that the plan Exh.25 prepared by him tallies with the original plan which was marked 'X' for identification and as such, the suit property was clearly identified and, therefore, the Lower Appellate Court erred in holding that the plaintiff has not identified the suit property. According to the learned Counsel, the Lower Appellate Court has misconstrued the document of title relied upon by the plaintiff and, therefore, the substantial question of law is involved in the appeal and, therefore, the second appeal deserves to be admitted. He further urged that since there is dispute as to the identity of the property, this is a fit case in which the Commissioner should be appointed to identify the suit property and this exercise even can be undertaken by this Court at the stage of admission of the second appeal. The learned Counsel, therefore, submitted that the impugned decree, 6 allowing the appeal filed by defendant No.1, is liable to be set aside. 6. In support of his submission, the learned Counsel relied upon the following judgments : i) P. Chandrasekharan andOrs.Versus S. Kanakarajan and Ors. Reported in AIR 2007 SC 2306. ii) Vivekanand Naik Versus Vinayak Naik Gaonkar and Ors. reported in 2008(1) Goa L.R. 243. iii) Ram Sarup Gupta Versus Bishun Narain Inter College and Ors. reported in AIR 1987 SC 1242. iv) Prakash Harising Bhadoriya and Anr. Versus Dada Jago Chahande reported in 2005(1) Bom. C.R. 494. v) Order dated 12.06.2008 passed by the learned Single Judge of this Court disposing of Second Appeal No.64/2007. 7. Per contra, Mr.Sudesh Usgaonkar, learned Counsel for the respondent No.1 submitted that since the plaintiff claimed to be the owner in possession of part of the Survey No.233/1, the burden was on the plaintiff to prove by cogent evidence that the said portion of the property, was in her possession which has not been discharged by leading cogent evidence. According to the learned Counsel, there is absolutely no evidence as to who prepared the original plan marked 'X' for identification and no reason was given as to why the said plan was not proved by examining the author of the said plan. According to the learned Counsel, the evidence of the so called expert Mr. Bhende, 7 P.W.2, does not advance the case of the plaintiff in as much as the evidence does not prove the identity of the suit property in terms of the plan. According to the learned Counsel, the findings given by the Lower Appellate Court, therefore, cannot be faulted. 8. I have considered the submissions made by the learned Counsel for the parties and perused the record. 9. Perusal of the judgment passed by the Trial Court discloses that the Trial Court held that the documents produced by the plaintiff, prove the title and possession of the plaintiff to the suit property i.e. the portion of Survey No.233/1. The Lower Appellate Court held that the plaintiff had failed to identify the suit property by leading cogent evidence. It is pertinent to note that the plaintiff did not step in the witness box and Smt. Meera Cossambe, the daughter of the plaintiff, was examined as duly constituted attorney of the plaintiff. Her evidence does not disclose as to on what basis the plaintiff is claiming the area of 1,35,824 square metres out of the property bearing Survey No.233/1. Since the plaintiff is claiming the portion of the Survey No.233/1 on the basis of the land registration certificate, the plaintiff ought to have led evidence that the property mentioned in the land registration certificate, corresponds to the suit property mentioned in the plaint which was demarcated in the plan annexed thereto. The plan 8 annexed to the plaint, has not been proved since the person, who drew the plan has neither been named nor examined. To identify the suit property, the plaintiff examined Sakharam Bhende P.W.2. He also did not state in his evidence that he identified the suit property on the basis of the documents nor the duly constituted attorney of the plaintiff stated in her evidence that she got the suit property identified through Sakharam Bhende, P.W.2. Thus, the evidence produced by the plaintiff, is not sufficient to prove the identity of the suit property. I find merit in the submission of Mr. Usgaonkar that since the plaintiff was claiming the part of the Survey No.233/1 on the basis of the land registration certificate, the plaintiff ought to have established that the property mentioned in land registration certificate, was corresponding to the plan produced along with the plaint or to the plan produced by Sakharam Bhende, P.W.2. In my considered opinion, the finding of the Lower Appellate Court that the property in respect of which the relief was sought by the plaintiff, was not identified, is a finding of fact arrived at upon proper appreciation of evidence, oral and documentary, led by the parties. I am unable to accept the submission of Mr. Reis that the question of misconstruction of document, is involved in the present appeal. The question before both the Courts below, was regarding identification of the suit property, which cannot be a substantial question of law. The finding recorded by the Lower Appellate Court, cannot be faulted and in any case, no substantial question of law is 9 involved in the present appeal. I do not deem it necessary to deal with the authorities referred to relied upon by Mr. Reis, in view of the findings given above in as much as they are not applicable having regard to the factual matrix in the present case. I do not find that this is a fit case for appointment of Commissioner to identify the suit property. 10. For the reasons aforesaid, I find that the appellant has not made out a case for admission of the appeal. No substantial question of law, is involved in the present appeal and hence, the appeal is summarily rejected. A.P. LAVANDE, J. SMA