-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 69 OF 2000 1. Shri Mahadeu Pandurang Arondekar, and his wife; 2. Smt. Parvato Mahadev Arondekar, Both major, residents of Khutwal, Pernem, Goa. …... Appellants (Original Defendants) V e r s u s Shri Rama Budhaji Naik Chipolkar, major, son of late Budhaji Sadji Naik Chipolkar, resident of Khutwal, Pernem, Goa. …... Respondent Mr. J. P. Mulgaonkar, Advocate for the Appellants. Mr. V. Menezes, Advocate for the Respondent. CORAM: R. M. SAVANT, J. DATE : 23 rd November, 2009. ORAL JUDGMENT By the above Second Appeal, the Appellants challenge the Judgment and Decree dated 15.03.2000 passed by the learned IInd Addl. District Judge, Panaji, by which, the Judgment and Decree passed by the Trial Court dated 23.04.1999 came to be confirmed. 2. The Appellants are the original Defendants in Regular Civil Suit No. 22/1994 filed by the Respondent herein for a perpetual injunction to restrain the Defendants, their family members and agents from interfering with the suit property in any manner. -2- 3. The parties would be referred to as per their status in the suit. 4. It was the case of the Plaintiff that the property known as "Vajor" or "Lopodracodil Borodo", whose boundaries were mentioned in the plaint was originally owned by the Communidade of Alorna and which was granted on permanent lease basis to the great grandfather of the plaintiff on 07.10.1864 vide Order of the Governor of the State. It was the case of the plaintiff that at the time of new Survey, the suit property has been surveyed by mistake under two survey numbers. The southern half of the suit property in which the plaintiff cultivates paddy or nachini during monsoons has been allotted survey no. 337/0 and the northern half of the property which is a cashew plantation is surveyed under no. 338/0. It was the case of the Plaintiff that the Communidade of Alorna is the owner of the entire suit property and that the plaintiff since his ancestor's time is in possession and in enjoyment thereof as its permanent lessee. However, by mistake, the Government has been shown as in occupation of the Survey no. 337/0 and the Forest Department is shown as the occupant of the entire Survey no. 338/0 including the northern half of the suit property in Form I and XIV. It was the case of the Plaintiff that he has regularly been paying the lease rent to the Communidade in respect of the suit property. In so far as the cause of action in filing the suit is concerned, the Plaintiff has averred that the Defendants and the other family members on 29.03.1994 forcibly trespassed into the northern half of the suit property and tried to pluck the cashew trees. The Plaintiff questioned the Defendants about the said illegal act, upon which, the Defendant no.1 and his other family -3- members assaulted the Plaintiff. It was the case of the Plaintiff that the Defendants again trespassed into the suit property on 12.10.1994 and tried to clear some bushes in between the cashew trees thereby attempting to disturb the possession of the Plaintiff to the suit property. It was therefore the case of the Plaintiff that in view of the aforesaid acts of the Defendants, that he was constrained to file the said suit. 5. In the said suit, written statement came to be filed by the Defendants wherein in paragraph 4 it was admitted by the Defendants that the Plaintiff cultivates paddy in the property surveyed under no. 337/0. In paragraph 5 of the written statement, it has been averred that the property "Lopodracodil Borodo", is surveyed under no. 337/0 and the property surveyed under no. 338/0 is known as "Borodo Torpam" alias "Kavalo Temba" and corresponds to survey no.338/0 and 160/0 situated at Alorna, Khutwal, in Pernem Taluka. In paragraph 6 it is denied that the Plaintiff is the permanent lessee of the property surveyed under no. 338/0. However, the ownership of the Communidade of Alorna is admitted. 6. On the basis of the pleadings, the Trial Court framed the following issues : Issues Findings 1. Does the plaintiff prove that he is in Substantially in the possession of survey no. 338/0 at affirmative. Alorna ? 2. Do the defendants prove that they -4- are in possession of survey no. No. 338/0 at Alorna ? 7. In the said suit, the Plaintiff had filed an application for temporary injunction. The said application for temporary injunction was dismissed by the Trial Court against which an Appeal was filed by the Plaintiff. The Appellate Court granted the said temporary injunction against which a Civil Revision Application was filed by the Defendants in this Court being Civil Revision Application No. 6/96. The Civil Revision Application was disposed of by a learned Single Judge of this Court by Order dated 27.06.1996, which reads as follows : “ Heard learned Counsel for the parties. 2. By consent, it is agreed that the trial Court should appoint Commissioner in order to measure the suit property belonging to the respondent as shown in the lease agreement dated 7th October, 1864 between the Comunidade of Alorna and ancestors of the respondent. The Commissioner shall prepare a plan on the basis of the said document and submit Report in the trial Court within such time as the lower Court fixes. Liberty to the respondent to move the trial Court for any further relief which may be necessary after the submission of the said Report. 3. Revision stands disposed of in the aforesaid terms. Rule accordingly. No order as to costs.” 8. The Trial Court appointed a Commissioner and the terms of reference were stipulated by the Trial Court in terms of the case of the Plaintiff and the denial by the Defendants in the written statement. The disputes were -5- as regards the identification of survey no. 338/0 viz a viz the case of the Plaintiff in the suit that the lease which is in favour of the Plaintiff since his ancestors time encompasses both survey nos. 337/0 and 338/0. The report submitted by the first Commissioner appointed by the Trial Court was rejected by the Trial Court on the objection raised by the Plaintiff. Thereafter, a second Commissioner was appointed by the name of J. C. Godinho, who submitted his report to the Trial Court. The said Commissioner has in his report observed that the lease of the Plaintiff extends and is covered by land surveyed under no. 338/0. The Commissioner was cross examined on behalf of the Defendants. Thereafter, written arguments were filed by both the parties on the evidentiary value of the Commissioner's report. From the point of the present Second Appeal, paragraph 13 of the written arguments submitted on behalf of the Defendants, is relevant and is reproduced herein under : “This Court cannot dispose the suit merely on the basis of alleged Commissioner's Report without giving opportunity to the parties to lead the evidence and on the basis of the pleading this Court has to decide the suit on the basis of issues and therefore in case this Court decides the Suit on the basis of Commissioner's Report it will amount to miscarriage of justice.” 9. On the same day, when the written submissions were tendered by the parties, it was recorded in the roznama dated 22.04.1999 to the following effect: -6- "Called out today. Plaintiff present. Defendant no.1 present. By perusing the written arguments of the learned advocates for the Plaintiff and Defendants, it is clear that the parties had agreed in the Hon'ble High Court that the suit is to be disposed off on the basis of the Commissioner's Report. Hence the matter is posted for Judgment in the main suit. Proceedings in CMA closed." 10. The Trial Court, thereafter, on the said premise which has been recorded in the roznama dated 22.04.1999 that the parties consented to the suit being disposed of on the basis of the Commissioner's Report, considered the said Commissioner's Report and, on the basis of it, decreed the suit in favour of the Plaintiff. 11. In paragraph 12 of the Judgment of the Trial Court, it has been observed by the Trial Court that "...we have to understand that the parties had agreed before the Hon'ble High Court of Judicature at Bombay, Panaji Bench, that a Commissioner should be appointed to submit a report and this case should be disposed off accordingly." The Trial Court, on the basis of the said Commissioner's Report, recorded a finding that the plaintiff has proved that he is in possession of a substantial portion of the property surveyed under no.338/0 of the Village of Alorna and that the Trial Court further recorded a finding that the Defendants have failed to prove that they are in possession of the property surveyed under no. 338/0. The Trial Court accordingly, as -7- mentioned herein above, decreed the said suit by permanently restraining the Defendants from interfering in the suit property partly situated in the property surveyed under no. 337/0, partly in the property surveyed under no. 338/0 and shown within the area enclosed in red lines in the plan i.e. the report of the Commissioner Shri J. C. Godinho. It is therefore clear that the Trial Court based its findings only on the basis of the Commissioner's Report. 12. Aggrieved by the Judgment and Decree of the Trial Court dated 23.04.1999, the Defendants filed an Appeal being Regular Civil Appeal no. 56/1999. The said Regular Civil Appeal was dismissed by the Appellate Court. While dismissing the said Appeal, the Appellate Court held that since the Order of temporary injunction which was granted pending the suit was not interfered with in the Civil Revision Application filed by the Defendants in the High Court, the said findings recorded by the lower Appellate Court have become final and binding and, therefore, the Appellate Court did not deem it fit to go in to the said aspect of whether the Plaintiff was entitled to injunction. 13. The lower Appellate Court confirmed the observations of the Trial Court that the parties had agreed before the High Court that the suit was to be disposed of on the basis of the Commissioner's Report and, therefore, proceeded to consider the Commissioner's Report and after such consideration, recorded its findings as regards the Commissioner's Report and confirmed the Decree passed by the Trial Court. -8- 14. The above Second Appeal was admitted on 23.11.2000 by this Court and the following Substantial Questions of Law have been framed : (i) Whether the Courts below committed an error of law in basing their findings solely on the Commissioner's Report and his evidence and decreeing his suit on that basis alone without there being any evidence on behalf of the Plaintiff in support of his case. (ii) Whether the failure of the Plaintiff to step into the witness box and give his evidence and produce documentary evidence would dis-entitle him to a decree in the suit. (iii) Whether in view of the specific plea of tenancy taken in defence, the Learned Trial Court was bound to frame the issue of tenancy and refer it to the Mamlatdar and stay the suit until the Reference was answered. (iv)Whether the Learned Additional District Judge acted illegally and committed an error of jurisdiction in relying upon the findings given by the Appellant Court in the Appeal against the Order of interim injunction and basing her findings in the Appeal from final Decree on the said findings given at the interim stage because the High Court had not disturbed the said findings in revisional jurisdiction. (v) Whether the Courts below misconstrued the oral Judgment dated June 27, 1996, to mean that the suit was -9- to be disposed solely on the basis of the Commissioner's Report and evidence, and the parties had agreed and bound themselves on the disposal of the suit only on that basis. 15. The Substantial Questions of Law which go to the root of the matter are question nos. (i), (iv) and (v). In so far as the first question of law is concerned, in my view, both the Courts below have proceeded on a totally erroneous premise that both the Plaintiff and the Defendants have agreed before this Court that the suit is to be decided on the basis of the Commissioner's Report. A reading of the Order dated 27.06.1996 nowhere discloses that there was an agreement between the parties that the suit is to be disposed of on the basis of the Commissioner's Report. At the highest it could be said that the parties had agreed to the appointment of a Commissioner to identify the land in view of the issue that had arisen in the said suit. The Courts below, therefore, had totally misdirected themselves by observing that the suit was to be disposed of only on the basis of the Commissioner's Report. In fact, in the written submissions filed on behalf of the Defendants, the Defendants were very eloquent and had stated that the parties should be allowed to lead evidence and that in the event the suit is disposed of, on the basis of the said Commissioner's Report, the same would amount to miscarriage of justice. The Trial Court had committed the initial blunder as, on the day the written arguments were filed on behalf of the Defendants, the Trial Court, inspite of the objection in paragraph 13, went on -10- to record in the roznama that the parties had agreed before the High Court to dispose of the said suit on the basis of the Commissioner's Report. The said error of the Trial Court has, thereafter, been compounded by the Appellate Court by reaffirming the observations of the Trial Court. In the teeth of the said record, in my view, the Trial Court as well as the Appellate Court have erred in observing that the suit was to be disposed of on the basis of the Commissioner's Report and have thereby erred in decreeing the suit on the said basis. The substantial question of law no. (i) and (v), therefore, stands answered accordingly. 16. In so far as substantial question of law no. (iv) is concerned, in my view, the Appellate Court has erred in relying upon the finding given by the Trial Court at the time of the consideration of the application for interim injunction and thereby based its findings upon the said findings at the appellate stage. It is well settled that the findings arrived at, at the interim stage, are on the basis of the prima facie case and do not bind the Court whilst considering the suit after a full length trial. The acceptance of the said findings arrived at the interim stage, has resulted in the appellate Court abdicating its duty to record findings on the basis of the evidence before it, on the issue which was framed and has thereby committed an error of jurisdiction. The substantial question of law no. (iv) would, therefore, stand answered accordingly. 17. The submission of the learned Counsel for the Respondent -11- herein i.e. the original Plaintiff, that from the conduct of the Defendants it would have to be inferred that the Defendants had consented to the suit being disposed of on the basis of the Commissioner's Report, cannot be accepted. The consent has to be expressed and cannot be an implied consent in a matter as serious as the disposal of the suit on the basis of a Commissioner's Report. In any event, the proceedings cannot be decided on the basis of inferences when the parties have to prove their respective cases by leading evidence in the Court. The learned Counsel for the Appellants has relied upon the Judgment of a learned Single Judge of this Court reported in AIR 2003 Bombay 52 in the matter of Khurshed Banoo vs. Vasant Mallikarjun Manthalkar (deceased by Lrs.). Paragraphs 14 and 15 of the said Judgment are material and are re-produced herein under : “14. Having held that the appeal is maintainable, I shall now deal with the second point which would arise for my consideration. The question is : whether the trial Court has committed any irregularity in the conduct of the trial ? It is not in dispute that the trial Court has decreed the suit without there being any oral evidence or for that matter evidence in the shape of affidavit produce on record by the Plaintiff to establish the case pleaded by him. In absence of proof, the trial Court could not have decreed the suit merely on the basis of the pleadings of the parties. After the pleadings are complete and issues are framed from the scheme of the various provisions of Civil Procedure Code, it would appear that the parties should be called upon to produce evidence and only -12- thereafter the suit can proceed and decided on merits. In absence of evidence or proof, it is not possible to comprehend as to how the issues as framed can be conclusively decided one way or the other by the Court as having been established. 15. the Trial Court in the present case has proceeded to decree the suit essentially relying on the Commissioner's report and on the assumption that the said report has been proved. For assuming that the said report has been proved, the trial Court perhaps took note of the fact that defendant did not raise any objection with reference to the Commissioner's report. Merely because no objection was raised by the defendant to the Commissioner's report, that does not mean that the report that the report stands proved on record. There is established procedure known to law by which the Commissioner's report can be proved on evidence. That has not been done in the present case. In such a situation, the trial Court could not have decided the suit on merits. For, in absence of any oral evidence or for that matter evidence by way of affidavit of any party, the issues as framed cannot be decided as having been established one way of the other. In the circumstances, there is palpable and manifest material irregularity committed by the trial Court in the conduct of the trial in the present case. Indubitably, this would warrant exercise of powers under Section 99 read with Order 41, Rule 23A of the Code so as to remand the case to the trial Court for a denovo trial.” 18. In the said case before the learned Single Judge, the case had -13- proceeded exparte against the Defendants and has observed that merely because no objection was raised on behalf of the Defendants to the Commissioner's Report, it would not mean that the report stands proved on record and, in such a situation, the learned Judge has observed that the Trial Court could not have decided the suit on merits relying upon the Commissioner's report in the absence of any oral evidence. The learned Judge, therefore, has held that in such a case, the exercise of powers under Section 99 read with Order 41, Rule 23A of the Code was warranted and remanded the case to the Trial Court for denovo trial 19. In the instant case also, in view of the findings in respect of substantial question of law (i) and substantial question of law (iv) and (v), which go to the very root of the matter, in my view, case for remand of the matter back to the Trial Court is made out. 20. Resultantly, the impugned Decrees passed by the Trial Court as well as the first Appellate Court are set aside and the matter is remanded back to the Trial Court for a denovo trial. On such remand, the Trial Court could afford an opportunity to both the parties to lead evidence and thereafter decide the suit within a period of six months from the receipt of the writ of this Court, on its own merits and in accordance with law. R. M. SAVANT, J. arp/*