1 IN THE HIGH COURT OF BOMBAY AT GOA LETTERS PATENT APPEAL NO.7/1996 & CROSS OBJECTION NO. 6/1996 Shri Chandreshwar Bhuthanath Devastan of Paroda, by its Special Attorney Shri Madhukar Narayan Raut Desai, residing at Assolda in Quepem Taluka. ........ Appellant. Versus 1. Shri Suburaj Prabhakar Naik 2. Smt. Kranti Prabhakar Naik, 3. Shri Devendra Prabhakar Naik, 4. Shri Ganesh Prabhakar Naik, All residing at Navelim, Margao, Salcete, Goa by their Attorney Smt. Janabai Prabhakar Naik, residing at Navelim, Margao. ........ Respondents. Mr. M. S. Usgaonkar, Senior Advocate with Mr. V. P. Thali, Advocate for the appellant. Mr. S. G. Dessai, Senior Advocate with Mr. P. Talaulikar, Advocate for the respondents/Cross Objectors. CORAM : S.C. DHARMADHIKARI & R.C. CHAVAN, JJ. Date of Reserving the Judgment : 10th September, 2008. Date of Pronouncing the Judgment : 19th September, 2008. 2 J U D G M E N T : (Per DHARMADHIKARI, J.) 1. This letters patent appeal is directed against a Judgment and Decree delivered by a learned Single Judge of this Court in First Appeal No.42/1985 and First Appeal No.114/1985. By the Judgment and Decree dated 20.6.1995, the learned Single Judge directed as under : “ For the foregoing reasons First Appeal No.42 of 1985 partly succeeds. Accordingly Special Civil Suit No.2 of 1983 is partly allowed and decreed as under : The property Oiterio Porvot as described in the plaint consists of Survey Nos. 86, 161, 161, 128, 127, 126, 116, 115, 114, 87, 88, 81, 82, 83, 84, 85 in Mullem Village; Survey Nos. 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 91, 70, 69, 68, 67, 66, 62 in Paroda Village and Survey No. 54 in village Talvorda as stands demarcated in the plan annexed by the Commissioner, to his report dated 13th February 1992 (Ex. C. Collectively). The property Carea dunna @ Carea galli comprises of Survey Nos. 167, 152 (P) of village Mullem and shown in the same plan (Ex.C collectively) Possession of that part of the property bearing survey No.86 is restored to the original plaintiff-appellant.- Deity. Permanent injunction in terms of prayer (b) of the plaint, restraining Naiks-original defendants- Respondents in appeal from interfering with the property Oiterio Porvot or any part of the property 3 bearing survey No.86. No order for mesne profits and the Appellant- Deity is at liberty to seek enquiry under Rule 12, O.XX of the Civil Procedure Code. Demarcation of the property Oiterio Porvot be got done in terms of Commissioner's report on Loco in execution. To the extent indicated, judgment and decree dated 15th February 1985 of the trial Court is quashed and set aside. Civil Appeal No.114 of 1985 is dismissed and impugned judgment and decree dated 15th February, 1985 of the trial Court is confirmed, dismissing Regular Civil Suit No.66 of 1977.” 2. First Appeal No.42/85 was filed by the appellants which are original plaintiffs in Special Civil Suit No.2/1983. That suit was dismissed by the learned trial Judge by his Judgment and Order delivered on 15/2/85 and the learned Single Judge by the impugned Judgment partly decreed the suit. 3. First Appeal No.114/85 was at the instance of the defendants in Special Civil Suit No.2/1983 who are respondents before us. They assailed the Judgment and Decree of the trial Court dismissing their regular civil suit being Regular Civil Suit No.66/1977. 4. The respondents to this appeal have not challenged the Judgment 4 and Decree of the learned Single Judge, in so far as dismissal of their suit is concerned. All that they have done is filing cross objections in the letters patent appeal. 5. The letters patent appeal was admitted by this Court and it appears that upon Section 100A of the Code of Civil Procedure prohibiting letters patent appeals, being brought into effect on 1.7.2002, a preliminary objection was raised to the maintainability of this letters patent appeal by the respondents. That objection was raised when the appeal reached the stage of hearing and final disposal sometime in September, 2002. By an order dated 18.9.2002, a Division Bench of this Court held that the present letters patent appeal was not maintainable and dismissed the same. Aggrieved thereby, the appellants carried the matter to the Supreme Court and the Supreme Court accepting the correctness of the view expressed by a Full Bench of this Court in Sharad Awasthi vs. Ratnakar Trimbak Pandit, (2004) 3 Mah. L.J. 706, reversed the order of the Division Bench and held that the letters patent appeal is not barred by virtue of Section 100A of the Code of Civil Procedure which is brought into effect from 1.7.2002. 6. It is, thereafter, that the letters patent appeal has reached hearing and final disposal before us. At the hearing and final disposal, Shri S. G. 5 Dessai, learned Senior Counsel appearing for the respondents once again contended that the present letters patent appeal is not maintainable. He argued that a letters patent appeal is maintainable under Clause 15 of the Letters Patent of Bombay High Court. That clause providing for a letters patent appeal against a Judgment and Decree rendered in a first appeal itself has been repealed by an enactment which is known as “Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986. That enactment was notified on 27.5.1987 and said Notification was published in the Maharashtra Government Gazette dated 4.6.1987. In such circumstances, when Maharashtra Legislature had abolished a letters patent appeal, that abolition Act would, with all force, apply in Goa State, assuming that such an Act has force and operation outside the State of Maharashtra. 7. Apart from this, Shri Dessai contended that Goa is a separate State. It may be that a Goa Bench of the Bombay High Court was set up in 1982, however, Goa State came into being from 30/05/1987. The Goa State Reorganization Act contemplates a common High Court for the State of Maharashtra and Goa. However, merely because the Act contemplates a common High Court, does not mean that the Letters Patent of Bombay High Court would automatically apply and will be in force in the State of Goa. It is 6 contended that a letters patent appeal will not automatically lie at Goa, before a Division Bench as the Letters Patent of Bombay High Court is in force and applicable only in the areas coming within the State of Maharashtra. Therefore, the High Court, being a common High Court for both the States, does not automatically mean that a Letters Patent Appeal provided by Clause 15 of the Letters Patent of Bombay High Court is capable of being filed and maintainable at Goa. Mr. Dessai has traced the history right from the time when Goa was a Portuguese Colony. He has traced the history right from Indian High Courts Act, 1861, the Letters Patent of Bombay High Court which is applicable Letters Patent, namely 28/12/1862. He has taken us through the Amendment to Clause 15 of the said Letters Patent. Thereafter, he has taken us through the Letters Patent (Amendment) Act, 1948 after India became independent. He has also taken us through the developments after Goa became a territory of India with effect from 20.12.1961. He has taken us through the Goa, Daman and Diu (Administration) Ordinance, 1962 providing for continuance of Portuguese Laws applicable in Goa prior to liberation. He has invited our attention to the Goa, Daman and Diu (Administration) Ordinance, 1962 and more particularly Section 7 thereof. He has also invited our attention to the fact that Section 6 of this Act was repealed with effect from 7.12.1964. 7 8. Shri Dessai has emphasized the fact that the Judicial Commissioner's Court was set up for the Union Territory of Goa, Daman and Diu, replacing the Tribunal de Relacao and he has invited our attention to the Goa, Daman and Diu Judicial Commissioner's Court (Declaration of High Court) Act, 1964. He submits that with effect from 16.12.1963, Section 7 of the Administration Act, 1962 providing for extension of Bombay High Court is repealed. Shri Dessai has taken us through the High Court at Bombay (extension of Jurisdiction to Goa, Daman and Diu) Act, 1981 and contended that a Permanent Bench of Bombay High Court was established at Panaji, Goa on 30.10.1982, transferring the pending proceedings in the Court of Judicial Commissioner and abolishing Court of Judicial Commissioner. It is in this manner that First Appeal No.114/1985, preferred by the respondent challenging the Judgment and Decree of disposal of Regular Civil Suit No. 66/77, rendered by the Trial Court came to be transferred to this Court. Lastly, he has invited our attention to the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 referred to above. 9. In such circumstances, Shri Dessai contends that the Goa, Daman and Diu Re-Organisation Act, 1987, forming the State of Goa and stating that there shall be a common High Court for the States of Maharashtra 8 and Goa, and entitled as “High Court of Bombay”, by itself, does not mean that the letters patent appeal would be maintainable. That is his precise submission. 10. On the other hand, Mr. Usgaonkar, learned Senior Counsel appearing for the appellant, controverting these submissions, has contended that the plea of maintainability of this letters patent appeal cannot now be raised once again after the preliminary objection raised by the respondent is overruled earlier by the Honourable Supreme Court. All preliminary objections and particularly those with regard to the maintainability of the letters patent appeal stand concluded. He submits that the principles of res judicata/constructive res judicata or analogous thereto would apply and the respondents are deemed to have waived the present preliminary objection. 11. That apart, Mr. Usgaonkar was at pains to point out that this preliminary objection is also without any substance. He submits that if the statutory enactments in the field are properly construed, it would be clear that in view of the 1981 Act, Letters Patent of the High Court, particularly Clause 15 became applicable to the territories of Goa, Daman and Diu. In the light of the 1981 Act, Section 7 of the Administration Act, 1962 was repealed. He submits that, therefore, the Letters Patent Appeal was maintainable. Further, 9 he submits that the Abolition Act, 1987 enacted by the Maharashtra Legislature, was subject-mater of challenge before the Supreme Court. That challenge was raised by one Jaimini B. Chinai and the Hon'ble Supreme Court rendered the Judgment and Order upholding the same in the year 2004- 05 and from 1987 to 2005, the enactment, abolishing the Letters Patent, was not brought into effect in the State of Maharashtra itself. Therefore, the present letters patent appeal filed during the period when the Act was not in force, is perfectly maintainable and must be decided on merits. At this belated stage, the argument on maintainability should not be allowed to be raised. He submits that the letters patent appeal is maintainable because the jurisdiction, authority and the power of the Bombay High Court in the States of Maharashtra and Goa is intact although the Re-Organisation Act terms this Court as a common High Court. 12. Both sides elaborated the submissions by referring to voluminous material, including Notifications and Enactments. They buttressed their submissions by referring to several decisions of the Hon'rable Supreme Court and this Court. However, during the Course of arguments, we indicated to both sides that in the peculiar facts of this case and that the view that we are taking on merits, it may not be necessary to decide the issue of maintainability of the present letters patent appeal. 10 13. Mr. Desai, in all fairness, submitted that if this Court is not inclined to interfere with the impugned Judgment and Decree on merits, then, he may not press his objections to the maintainability and may prefer to raise them in an appropriate case. Equally, Mr. Usgaonkar submitted that his reply to the objections raised, may, also not be dealt with in the light of the concession by Shri Dessai. He submits that his arguments on the point of maintainability may also be kept open. 14. By following the above course of action and with the consent of parties, we propose to dispose off this appeal on merits, rather than deciding the preliminary objection raised to its maintainability. We accept the above statements and clarify that we have not decided the issue of maintainability and the said issue is kept open for decision in an appropriate case. 15. Now, on to the merits, Shri Usgaonkar appearing for the appellants submits that the appellants, for the convenience sake, can be referred to as “the Temple/Deity” and the respondent as “Naiks”. He submits that a civil suit being Special Civil Suit No. 2/83 was filed by the appellants were aggrieved by the Judgment and Decree of the trial Court, dismissing the suit on the ground that the claim therein is barred by limitation. On all other issues, findings were rendered in favour of the appellant-the Temple and 11 against Naiks, but the Trial Court dismissed the suit on the ground of limitation. He submits that the learned Single Judge has erred in partly decreeing the suit. He submits that when the learned Single Judge has reversed the findings of the trial Court on limitation, then, consistent with the trial Court's findings on other issues, the suit should have been decreed as a whole. He submits that the learned Single Judge has partly decreed the suit by relying upon the report of a Commissioner, appointed during the course of hearing of the first appeal, before him. He submits that the Commissioner may have been appointed by consent of parties, however, the appellant- Temple had never given up its contention that there is no dispute with regard to identification of boundaries of the suit property. That issue was dealt with at great length by the trial Court and it referred to the evidence led before it. By appreciating the oral and documentary evidence, the Trial court negatived the argument of the respondents-Naiks on the issue of identification of the property and its boundaries. That being the case, these substantive findings could not have been displaced by the learned Single Judge by placing reliance only on the Commissioner's Report. The Commissioner's Report could not be termed as the only material on record. While taking into consideration only Commissioner's Report, the learned Single Judge could not have ignored the voluminous other material and that is how the Judgment and Decree of the learned Single Judge is vitiated in law. He submits that the Judgment and 12 Decree is based only on the Commissioner's Report. He submits that assuming without admitting that the Commissioner's Report, as far as aspect of identification of the properties and boundaries can be considered to be a substantive evidence by itself, yet, the discrepancies and errors in the Report of the Commissioner specifically pointed out by the Temple by raising objections to the same, the learned Single Judge allowed the appellants to cross examine the Commissioner. There are several admissions in the cross examination of the Commissioner which have been ignored by the learned Single Judge. Once the Commissioner's Report, together with the objections and his cross examination is on record, then, it was incumbent upon the learned Single Judge to have analysed it in this light and thereafter, rendered the findings as to whether the report deserves acceptance. That being not done, the impugned Judgment and Decree is contrary to law. 16. Mr. Usgaonkar, submitted that the grievance of the appellant is limited to Survey No.167 and Survey No.152(part). He submits that with regard to Survey Nos.168, 169 and 170, no claim was laid by Naiks. They are not claiming these properties. However, the Commissioner's Report excludes 5 properties in all. Apart from survey Nos. 167 and 152 (part), survey Nos. 168 and 170 also stand excluded. This exclusion is wrongful. The learned Single Judge failed to apply his mind to a very vital document/grant dated 13 10.6.1823. This document and contents thereof are proved. Both sides admit that the said document is exhibited on record of the trial Court. That document and its contents could not have been brushed aside by the learned Single Judge, more so, when the Commissioner admits that he has ignored the contents of these documents. That admission of the Commissioner could not have been omitted from consideration by the learned Single Judge. In such circumstances, that nothing vital has been brought on record, is a conclusion reached by the learned Single Judge, erroneously and without any application of mind. Therefore, it is wholly vitiated. 17. Shri Usgaonkar was at pains to point out that the Map at page 373 of the record must be seen in its entirety. All boundaries are identified and denoted. He has also invited our attention to the pleadings in Regular Civil Suit No. 66/77 filed by Naiks against the Temple. He has also invited our attention to the evidence led in that suit. He submits that all evidence therein is contrary to the pleadings. That suit was dismissed after trial. A First Appeal therefrom is also dismissed by the learned Single Judge. Principles of finality of orders would come into play inasmuch as no letters patent appeal is preferred by Naiks against that part of the Judgment and Decree of the learned Single Judge. That apart, he has invited our attention to the deposition of one Janabai who entered the witness box on behalf of Naiks. 14 The complaint of Shri Usgaonkar is that the Commissioner could not have reopened the issues which are concluded by the trial Court's Decree in the suit of Naiks. This is an omission which was very vital in his report. Shri Usgaonkar has laid great emphasis on the contents of the Commissioner's Report and has invited our attention to pages 9 and 13 thereof. He submits that once there is no identification of Survey No.86(part) (the property claimed by Naiks), then, it is not permissible to exclude Survey Nos. 167 and 152. 18. Shri Usgaonkar was at pains to point out that Ground (A) and Ground (C) of the Appeal Memo would show that the learned Single Judge was right to the extent of reversing the findings of the trial Court on the issue of limitation and that part of the Judgment may not be interfered with. However, the conclusion reached thereafter and, more particularly on merits, is vitiated and, therefore, the Judgment and Decree of the learned Single Judge be quashed and set aside. 19. On the other hand, Shri Dessai, learned Senior Counsel appearing for the respondent-Naiks invited our attention to the cross objections. He submits that by raising cross objections, it is open for Naiks to argue that the finding of the learned Single Judge on the issue of limitation is 15 vitiated and contrary to law. He submits that the learned Single Judge has ignored the fact that substantive and only relief claimed by the Temple in its suit, is of Declaration. That relief was, admittedly, time-barred. That relief became available to the Temple after the proceedings before the Mamlatdar ended in 1971. By virtue of Article 58 of the Limitation Act, 1963, a suit for declaration could have been filed within 3 years, as the right to sue accrued from the date the Mamlatdar's Order was received. However, the Temple chose to remain silent and filed a suit for declaration in the year 1983. Therefore, ex facie, the claim was time-barred. Shri Dessai submits that the bar of limitation could not have been saved by the learned Single Judge by holding that whenever there are two reliefs sought by a plaintiff and one substantive; whereas the other is alternate, then, even if the substantive relief is time-barred, the suit can still be decreed if the alternate relief is claimed within the period of limitation prescribed for the same. Shri Dessai submits that by referring to prayer clause (c) of the plaint in Special Civil Suit No.2/83, the learned Judge could not have concluded that the same is a substantive relief by itself and could have been considered and granted. The finding that the same is a substantive relief by itself is vitiated inasmuch as the learned Judge should have read the plaint as a whole and in its entirety. It is projecting the claim for declaration and nothing else. The relief in prayer clause (c) is alternate to or ancillary to prayer clause (b) which is of permanent 16 injunction. Thus, the declaration and permanent injunction being substantive and only relief, and prayer clause (c) for restoration of possession being alternate thereto, could not have been considered independently and that is an error which is ex facie apparent on the record and, therefore, the learned Single Judge's Judgment be quashed and set aside. He submits that the cross objections project essentially this aspect and, therefore, if the learned Single Judge's Judgment could be quashed and set aside, then, it is not necessary to go into other matters, including the correctness of his finding based on the Commissioner's Report. If the claim in the suit is time-barred, then, everything else is irrelevant and insignificant and the Trial Court's Judgment is correct and proper and requires no interference. 20. Alternatively, it is urged by Shri Dessai that the learned Single Judge has rightly held that the Commissioner's Report is the only substantive piece of evidence. He appointed the Commissioner by exercising his power under Order 41, Rule 27(b) of the Code of Civil Procedure, 1908 and by consent of parties. Once he has exercised such a power and appointed a Commissioner, it cannot be said that the appointment of Commissioner is traceable to Order XXVI, Rule 9 of the Code of Civil Procedure alone. Assuming that the learned Single Judge was right and the Commissioner's appointment could be traced to Order 26, Rule 9 of the Code of Civil 17 Procedure, then, the report of the Commissioner will have to be seen with other evidence. There being no other evidence on record, the Judgment is vitiated because it solely relies upon the Commissioner's Report. The suit could not have been decreed by taking into consideration the Commissioner's Report. Mr. Dessai contended that respondents also objected to the Commissioner's Report, but he fairly concedes that there is no cross examination of the Commissioner. Despite this, as the appeal preferred by the respondents-Naiks has been dismissed, the same conclusion should have been reached as far as appellant's suit is concerned. That finding could have been reached despite the Court Commissioner's Report. Today, the learned Single Judge has decreed the suit by undertaking a course which is not permissible in law. The Decree passed by the learned Single Judge is much beyond the prayers and what he has done is granted a declaration in favour of the appellant, although that relief was time-barred. Apart from this, by considering prayer clause (c) of the plaint in isolation, the learned Single Judge has granted altogether a new relief and converted the suit for declaration and permanent injunction into a suit for possession on the basis of title. For all these reasons, the Judgment of the learned Single Judge must be quashed and set aside. Resultantly, both suits deserve to be dismissed. 21. On the argument of limitation, Mr. Usgaonkar rejoined and 18 urged that this is an instance where the issue of title is framed, as that alone would be the basis on which the relief of possession can be granted. The plaint must be seen as a whole and merely because prayer clause (c) is granted, does not mean that the declaration is granted indirectly. He submits that it is well settled that prayer for declaration is unnecessary if possession is sought on the basis of title. In any event, inquiry into the title