1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 5 OF 1998 1. Shri Barkelo Apa Gurav, agriculturist, resident of Paryem, Sattari Goa, since deceased, represented by his legal representatives (a) Smt. Janaki B. Gurav, (b) Appa B. Gurav alias Gurudas B. Gurav, ( c) Nali Appa B. Gurav, wife of Appa Barkelo Gurav, (d) Krishna B. Gurav, (e) Gajanan B. Gurav, (f) Prakash B. Gurav, (g) Miss Tulshi B. Gurav, All resident of Paryem, Sattari. ... Appellants V e r s u s 1. Anant Yeshwant Paryekar, major, 2. Hanumantrao Annasaheb Rane Sardessai. 3. Smt. Annapurnabai Hanumantrao Rane Sardessai, 4. Smt. Sulba Santoba Rane Sardessai. 5. Laximan Tukaram Paryekar, 6. Smt. Sheila Laximan Paryekar, 2 7. Smt. Sumant Anant Paryekar, All residents of Paryem, Sattari. ... Respondents Mr. S. D. Lotlikar, Senior Advocate for the Appellants. Mr. Sudin Usgaonkar, Advocate for the Respondent nos. 1, 5, 6 and 7. Coram :- A. H. JOSHI, J. Date :- 3 rd August, 2009. JUDGMENT : 1. Heard. Perused the record. 2. This second appeal has been admitted by this Court by formulating following substantial questions of law:- (1) Whether in view of the fact that the learned Addl. District Judge came to the conclusion that the Trial Judge had without justification, interfered with the issues framed by his predecessor and that the issues as reframed by the Trial Court, were not required to be determined. It was incumbent upon the Addl. District Judge to remand the matter to the Trial Court for fresh appraisal of evidence, especially in view of the fact that the learned Addl. District Judge had come to the conclusion that the learned Trial Judge had drawn imaginary plans and decided the suit with reference to those plans. (2) Whether in view of the specific claim of the appellants that they were lessees in respect of the suit property, having been given the said property on Aforamento perpetuates and in view of the denial of the said claim on behalf of the original defendant no.1, an issue of tenancy arose, 3 which had to be decided exclusively by the Mamlatdar under the Agricultural Tenancy Act. (3) Whether the learned Addl. District Judge was justified in discarding the documents at Exhibit PW1/C, namely the document granting the suit property to the appellants on Aforamento on the ground that there was nothing to prove that the property 'Gorbhatulem', was a part of 'Mokaso' and that it was actually owned by grantors of the original plaintiff, namely Ladhoba Kusthoba Rane and Santhoba Rane, when this position was never challenged on behalf of the respondent no.1, the only challenge to the document being that it was not registered as per the prevailing law in the State. (4) Whether the plea of the respondent no.1 that they have acquired the suit property by virtue of adverse possession stood falsified by the Gift Deed Exhibit DW1/A, which was produced by the appellants in cross examination of the original defendant no.1. (5) Whether the learned Addl. District Judge was justified in disturbing the findings of the learned Trial Judge given in favour of the appellants, when there was no appeal filed by the respondents challenging the decree of the Trial Court. 3. Plaintiff had filed suit claiming following reliefs :- (a) It may be declared that the plaintiff is entitled to possess and enjoy the suit property excluding the portion occupied by the house of the defendant no.1 as its Lessee; (b) In the event of holding that the defendant no.1 is in possession of the suit property excluding the portion occupied by the house of defendant no.1 or any part thereof, the plaintiff may be put in its possession by ejecting the defendant therefrom who may be declared as trespasser; (c) The defendants, their agents, servants and/or family members be permanently restrained from interfering in any manner with the suit property excluding the portion occupied by the house of the defendant no.1; 4 (d) Costs. 4. Initially present defendant nos. 1 to 6 were arrayed and later defendant nos. 7 to 9 were impleaded. 5. The defendant no.1 filed the written statement contesting the suit, while, which present respondent nos. 5 to 6 have adopted. 6. Present respondent nos. 2 and 3 who were defendant nos. 2 and 3 have supported the plaintiff. 7. Plaintiff's case as noted by the trial Court is as follows :- “Plaintiff's case :- The suit property was given by permanent grant to Sagun Apa Gurav in 1888 by the ancestors of defendants 2 to 5. First lessee is the ancestor of the plaintiff. House of the defendant no.1, which is situated in the suit property, is constructed by the defendants with the permission of the plaintiff. Apart from the right to the said house defendants do not have any right to the rest of the suit property. Plaintiff has always been in possession of the suit property. Defendants ( 1, 7, 8 & 9 ) have obtained an injunction against the plaintiff from Mamlatdar's Court. Cause of action arose on 23.5.77 and on 29.7.77. The dates on which application was filed before the Mamlatdar and injunction was obtained from the said Court by the defendants”. 5 (Quoted from para 2 of judgment dated 31.1.1992 in RCS No. 107/1978 at page 61 ) 8. Contesting defendant nos. 1, 7, 8 and 9 have contested the claim contending to be in possession of suit property, and admitting that plaintiff was occupying a house within suit land on a small part thereof. 9. Issues as those stand after recasting involve three points :- (a) Plaintiff's possession over suit land surveyed under No.107/1 and 107/2 ( old survey No. 34 ). (b) Obstruction by defendants. (c) Relief. 10. From oral and documentary evidence of the plaintiff, trial Court found that the plaintiff has not proved his possession except of the portion described in alphabets A, B, C, D in figure II out of survey No. 107/1 and entire survey No. 107/2. Learned Trial Court has therefore partly decreed the suit to that extent. 11. The plaintiff preferred appeal while the defendants acquiesced with the decree. 6 12. Learned first appellate Court has marshelled the evidence and recorded its re-appreciation in para 12, and para 14 respectively. 13. Though appellate Court seems to be unhappy with the manner in which trial Court has dealt with the case, however upon re-appreciation of evidence, the appellate Court did not arrive at any other conclusion than one reached by the trial Court, and hence dismissed the appeal. 14. Some criticism on the judgment of trial Court is a passing observation. These observations only reveal dis-satisfaction about the manner in which trial Court has approached. The appellate Court did not hold that said in-appropriate of approach of Trial Court amounted to illegality. Moreover upon consideration and re- appreciation of evidence, appellate Court has put a seal of approval on the decree passed by the trial Court. 15. Though substantial questions of law have been presented in an articulated manner and are framed by this Court what the appellant wants is drawing second opinion on facts without calling it re-appreciation of evidence and about propriety on the part of Judge hearing the appeal to have heard it. It is seen that the Judge who had heard the appeal was the same Judge in Trial Court when 7 issues were framed. Admittedly, suit was heard and decided by another Judicial Officer. 16. Whatsoever be the substantial questions of law framed, this Court is first to be persuaded to hold that the decree passed by the first appellate Court is contrary to law. Whatsoever is argued is as to propriety of hearing by the particular presiding officer, who as a Civil Judge had framed the issues. 17. It is not shown that the findings under challenge are perverse or are otherwise recorded in para 12 and 14 of the judgment of appellate Court. Possession of suit property on the date of suit, much less antecedent, was not proved by plaintiffs. The finding that the plaintiffs are not in possession of suit property is not challenged in any of the substantial questions or grounds. 18. All that the appellants are doing, is that they are raising dispute and controversy on appreciation of evidence, and questions of propriety, which do not go to the root of case nor the findings are shown to be perverse. 19. Therefore none amongst the questions framed as substantial questions of law have an effect of vitiating and consequential reversal of decree. All substantial questions of law are therefore liable to be answered against the 8 appellant. 20. Appeal has no merit and is dismissed with costs. A. H. JOSHI, J. at*