1 IN THE HIGH COURT OF BOMBAY AT GOA PANAJI FIRST APPEAL NO.67, 68, 69, 70 AND 73 OF 1994 FIRST APPEAL NO.67/1994 1. Raghuraj Vassudeo Deshprabhu. deceased by his legal representatives: a) Smt. Shilpa Satish Ugrankar and her husband; b) Dr. Satish Shripad Ugrankar, c) Smt. Devika Dilip Kulkarni d) Shri Dilip Mahabale Kulkarni, 2. Mrs. Jaya Raghuraj Deshprabhu; 3. Mr. Devendra Raghuraj Deshprabhu 4. Mrs. Sunit Devendra Deshprabhu, 5. Mr. Jitendra Raghuraj Deshprabhu 6. Mrs. Roopa Jitendra Deshprabhu, All by their Constituted Attorney Shri Atmaram Babi Sinai Dessai, aged about 70 years, residing at Pernem, Goa. ...... Appellants. V/s. 1. Shri Rajendra Vassudeo Deshprabhu, by his legal representatives : a) Shri Vassudev Rajendra Deshprabhu doctor, aged 32 years, b) Kum. Nayantara Rajendra Deshprabhu, aged about 28 years, 2. Smt. Aparna Rajendra Deshprabhu, w/o. Rajendra Deshprabhu, aged about 50 years, All residing at Nanerwada, Pernem, Goa. ........ Respondents. FIRST APPEAL NO.68/1994 2 1. Mr. Devendra Raghuraj Deshprabhu 2. Mrs. Sunit Devendra Deshprabhu, 3. Mrs. Jaya Raghuraj Deshprabhu; 4. Mr. Jitendra Raghuraj Deshprabhu 5. Mrs. Roopa Jitendra Deshprabhu, 6. Smt. Shilpa Satish Ugrankar 7. Smt. Devika Dilip Kulkarni All by their Constituted Attorney Shri Atmaram Babi Sinai Dessai, aged about 70 years, residing at Pernem, Goa. ...... Appellants. V/s. 1. Shri Rajendra Vassudeo Deshprabhu, by his legal representatives : a) Shri Vassudev Rajendra Deshprabhu doctor, aged 32 years, b) Kum. Nayantara Rajendra Deshprabhu, aged about 28 years, 2. Smt. Aparna Rajendra Deshprabhu, w/o. Rajendra Deshprabhu, aged about 50 years, All residing at Nanerwada, Pernem, Goa. ........ Respondents. FIRST APPEAL NO.69/1994 Shri Raghunathrao Vassudeva Prabhu Dessai Deshprabhu alias Raghuraj Deshprabhu, deceased by his legal representatives: 1. Smt. Sitadevi alias Jaya Raghuraj Deshprabhu, 2. Shri Devendra Raghuraj Deshprabhu and his wife, 3. Smt. Sunit Devendra Deshprabhu, 4. Shri Jitendra Raghuraj Deshprabhu and his wife; 3 5. Smt. Rupa Jitendra Deshprabhu, 6. Smt. Shilpa Satish Ugrankar; and her husband; 7. Dr. Satish Shripad Ugrankar; 8. Smt. Devika Dilip Kulkarni 9. Shri Dilip Mahabale Kulkarni, All by their Constituted Attorney Shri Atmaram Babi Sinai Dessai, aged about 70 years, residing at Pernem, Goa. ...... Appellants. V/s. Shri Rajendra Vassudeva Prabhu Dessai Deshprabhu, deceased by his legal representatives : 1. Smt. Aparna Rajendra Deshprabhu, w/o. Late Rajendra Deshprabhu, aged about 55 years, 2. Shri Vassudeva Rajendra Deshprabhu Son of late Rajendra Vassudev Deshprabhu, doctor, aged 32 years, 3. Kum. Nayantara Rajendra Deshprabhu, d/o. Late Rajenmdra V. Deshprabhu, aged about 28 years, All residing at Nanerwada, Pernem, Goa. ........ Respondents. FIRST APPEAL NO.70/1994 Shri Raghunathrao Vassudeva Prabhu Dessai Deshprabhu alias Raghuraj Deshprabhu, deceased by his legal representatives: 1. Smt. Sitadevi alias Jaya Raghuraj Deshprabhu, 2. Shri Devendra Raghuraj Deshprabhu and his wife, 3. Smt. Sunit Devendra Deshprabhu, 4. Shri Jitendra Raghuraj Deshprabhu 4 and his wife; 5. Smt. Rupa Jitendra Deshprabhu, 6. Smt. Shilpa Satish Ugrankar; and her husband; 7. Dr. Satish Shripad Ugrankar; 8. Smt. Devika Dilip Kulkarni and her husband 9. Shri Dilip Mahabale Kulkarni, All by their Constituted Attorney Shri Atmaram Babi Sinai Dessai, aged about 70 years, residing at Pernem, Goa. ...... Appellants. V/s. Shri Rajendra Vassudeva Prabhu Dessai Deshprabhu, deceased by his legal representatives : 1. Smt. Aparna Rajendra Deshprabhu, w/o. Late Rajendra Deshprabhu, aged about 55 years, 2. Shri Vassudeva Rajendra Deshprabhu Son of late Rajendra Vassudev Deshprabhu, doctor, aged 32 years, 3. Kum. Nayantara Rajendra Deshprabhu, d/o. Late Rajenmdra V. Deshprabhu, aged about 28 years, All residing at Nanerwada, Pernem, Goa. ........ Respondents. Mr. M. B. Da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the appellants. Mr. V. B. Nadkarni, Senior Advocate with Mr. M. S. Sonak, Advocate for the respondents. 5 FIRST APPEAL NO.73/1994 Shri Rajendra Vassudeva Prabhu Dessai Deshprabhu, deceased by his legal representatives : 1. Smt. Aparna Rajendra Deshprabhu, 2. Dr. Vassudeva Rajendra Deshprabhu 3. Kum. Nayantara Rajendra Deshprabhu, All of full age, residents of Nanerwada, Pernem, Goa. ..... Appellants. V/s. 1. Smt. Sitadevi alias Jaya Raghuraj Deshprabhu, 2. Shri Devendra Raghuraj Deshprabhu and his wife, 3. Shri Jitendra Raghuraj Deshprabhu 4. Smt. Sunit Devendra Deshprabhu, 5. Smt. Rupa Jitendra Deshprabhu, All of full age, residents of Nanerwada, Pernem, Goa. 6. Smt. Shilpa Satish Ugrankar; 1st Floor, Ram Mahal, Dinshaw Vacha Road, Churchgate, Bombay 400 020 7. Smt. Devika Dilip Kulkarni Om Bungalow, Carter Road, Bandra (W), Bombay 400 050. ....... Respondents. Mr. V. B. Nadkarni, Senior Advocate with Mr. M. S. Sonak, Advocate for the appellants. Mr. M. B. Da Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the respondents. 6 CORAM : B.P. DHARMADHIKARI & U.D. SALVI , JJ. Date of reserving the Judgment : 17th June, 2009. Date of pronouncing the Judgment : 10th July, 2009. J U D G M E N T : (Per B.P. DHARMADHIKARI, J.) 1. These appeals challenge the common Judgment & Decree dated 19.3.1994 delivered by Civil Judge, Senior Division, Mapusa in Special Civil Suits No.416/86/A, 420/86/A, 16/87/A and 499/87/A. Special Civil Suit No.416/86/A was filed by the deceased Raghunathrao Vassudev Prabhu Dessai Deshprabhu alias Raghuraj Deshprabhu and is being prosecuted by his legal heirs, who are appellants in the four appeals before this Court. Other Special Civil Suits were filed by respondent Rajendra in these appeals. Rajendra had also filed First Appeal No.73/1994 aggrieved by part of adjudication in Special Civil Suit No.499/87/A. All the civil suits were consolidated vide Order dated 15.3.1991. Raghunath died during the pendency of the special civil suit filed by him on 10.11.1987. 7 2. The relationship between the parties is not in dispute. Atmaram Vassudev Porobo Dessai Deshprabhu, Viscount of Pernem happened to be the grand father of Raghuraj, as also Rajendra. Vassudev son of Atmaram was their father. Vassudev was only son of Atmaram and during the life time of Atmaram, Raghuraj was only male child of Vassudev, i.e. only grand son of Atmaram. Atmaram executed Deeds of Gift dated 29.1.1925, 17.1.1927 and 20.6.1929, gifting several properties to his son Vassudev, but then granted him only limited right, that is life interest and obliging him to transmit those properties in favour of Raghuraj after his death. Atmaram also made a Will dated 22.5.1933, bequeathing certain properties to Raghuraj and again appointing Vassudev as Trustee. As per the said Will, the palace and interlinked old house was given to Raghuraj. On death of Atmaram Deshprabhu, inventory proceedings bearing No.194/1933 were initiated in the Court of Civil Judge, Sr. Division, Mapusa and Raghuraj was declared as interested party in those proceedings. As Raghuraj was then minor, he was represented by his father Vassudev. The defendant in the suit filed by Raghuraj and plaintiff in other suit, Rajendra is the second son of Vassudev and he was born after death of Atmaram. On 06.12.1956, Vassudev renounced all his right in favour of Raghuraj by 8 executing a Deed of Renunciation and Exchange. Certain properties were exchanged between Raghuraj and Rajendra vide that Deed. Raghuraj, his parents and Rajendra lived in the residential house (palace) till death of Vassudev in 1962. It was the case of Raghuraj that after death of Vassudev, by virtue of Will he became the absolute owner of palace, guest house, other structures along with appurtenances of this property and he was in possession of the suit property along with the household articles and antique items kept in Devghar and Museum. He stated that he was looking after all these properties exclusively and he also constructed a road by spending Rs.50,000/-. Rajendra was staying with him with his consent and due to cordial relations he was also permitted to have one set of keys of family worship room. Taking undue advantage of this permission, Rajendra surreptitiously inserted his name as occupant in revenue records i.e. in Form No. I & XIV of the residential house. He also described various gold and silver articles used for pooja and decorations and stated that the same were kept in a small room annexed to worship room. Raghuraj complained that he could not have access to that small room where gold and silver articles were kept till said worship room was opened. He also stated that there was museum on first floor which displayed various valuable articles 9 and antiques. On 21.5.1986, he noticed that a number of those articles were missing and he then requested Shri Vishwanath Thakur alias Dada Thakur to find out from Rajendra whether he had removed those articles. On 29.5.1986 Rajendra refused to hand over keys to Raghuraj and did not open the doors of worship room. Plaintiff Raghuraj then forwarded registered letter dated 31.5.1986 and enclosed with it list of articles missing from the museum. Ultimately, the defendant claimed that articles kept in museum were gifted to him and many articles were kept by defendant Rajendra himself in that museum for display. The plaintiff, therefore, claimed declaration for possession of articles and for injunction to restore all articles removed by Rajendra. He also sought permanent injunction restraining Rajendra from closing door which gave access to Raghuraj to a room known as “Makharachi Kudd” and to restore all museum articles. 3. In his written statement, Rajendra stated that residential house was not belonging to Raghuraj, but belonged to him. He further stated that Raghuraj himself gave better particulars in civil revision application filed before the High Court at Panaji Bench stating that the suit property was described under Item No.259 in the inventory 10 proceedings and was located in the third plot of “Gorbatulem Nague Porobo Miraxy” (hereinafter, referred to as “Miraxi”) described in the Land Registration Office under No.25340. He stated that by a Deed of Exchange dated 6.12.1956, the same property came to him. By way of counter-claim, Rajendra sought to restrain Raghuraj, his family members etc., from interfering with House No.844 or causing any obstruction in entering the house from the main door. 4. Rajendra Deshprabhu filed Special Civil Suit No. 420/86/A in relation to the palace, claiming its ownership exclusive, enjoyment and possession. He stated that halls and rooms , i.e. some part of palace was in possession of Raghuraj. He stated that room known as “Devghar” was being enjoyed by the plaintiff and the defendants in common. In April, 1986, Raghuraj obstructed Rajendra from going to Devghar to perform pooja and also closed doors of the portion occupied by them, including of the room known as “Agochi Kudd”, adjacent to Devghar between 10.8.1986 to 29.8.1986. The said Raghuraj and his family members forcibly entered in the room Agochi Kudd and trespassed into other rooms on first floor and closed the main gate which provided access to the suit property and kept one watchman at 11 the gate. Rajendra, therefore, sought mandatory injunction directing Raghuraj and his family members to remove the latch and lock obstructing the access to Devghar and to hand over possession of Agochi Kudd. He also sought permanent injunction restraining them, in any way, from interfering with his free access. In this suit, Jitendra, son of Raghuraj took a plea that the palace situated in the property known as “Tillachem Bhatulem and Mouli Somnath” gifted to him by his grand father on 20.6.1929. The residential house was registered in the Land Registration Office under No.1310 and the house itself had No.67 of house records. The property belonged exclusively to Raghuraj. After death of Vassudev in 1962, Rajendra started staying separately and occupied its portion for his residence. The remaining portion of the house and appurtenances were enjoyed and possessed by Raghuraj till his death. Jitendra denied plea of exclusive possession of Rajendra and stated that first floor was always in possession of Raghuraj. He also stated that Raghuraj allowed Rajendra to occupy some portion on ground floor. He denied the allegation of trespass. 5. The third Special Civil Suit No.16/1987/A was filed by Rajendra against Raghuraj and his family members to restore the 12 movable items and hand over possession thereof. This pertains to various articles in museum located on the first floor of palace and in the month of June, 1986 and July, 1986, in the absence of Rajendra, Raghuraj trespassed into the museum and removed padlock on 17.7.1986, Rajendra replaced the lock removed by Raghuraj. But again in the absence of Rajendra in the month of August, Raghuraj forcibly broke open the door located between Shastra Pooja room and took possession of that room. After taking this possession, Raghuraj filed Special Civil Suit No.416/86/A contending that he was in possession of museum. Raghuraj denied all these allegations in the written statement and reiterated his earlier stand that Rajendra removed the antiques and valuables. 6. The fourth suit bearing Special Civil Suit No.499/1987/A came to the filed by Rajendra for declaration of his exclusive ownership and possession of the property known as “Miraxy”, property known as “Gorbhatulem Nague Porobo Miraxy” described in the Land Registration Office under No. 2197 (old), 33930 and 33931 and the property known as “Ghorbhatulem Nanerkar” (Nanerkar-hereafter) described in the Land Registration Office under No.3408, 339960, 13 34099 and 34090. He also sought declaration that the property under Survey No.474, sub-divisions No.1 to 22 did not belong to Raghuraj and sought vacant possession of the guest house and other structures, with articles therein. He also sought injunction to restrain the defendants from interfering with his possession and enjoyment. In the written statement, Jitendra son of Raghuraj challenged this claim and stated that the entire area comprised in sub-division nos. 5 to 22 of Survey No.474 was surrounded by big masonry wall which had two gates. He gave description of the property and stated that the residential house and the appurtenances surveyed under No. 474/11 to 13 and 15 to 21 were designatories of Tillachem Bhatulem and Mouli Somnath. He further contended that same stood on the lands which formed parts of the property Tillachem Bhatulem and Mouli Somnath. He referred to the Deed dated 20.6.1929 and inventory proceedings. He alleged that in the inventory proceedings because of some mistake or confusion, Vassudev erroneously clubbed the said house with undivided 1/3rd part of the property Miraxy described under Item No. 259 though the said house had got nothing to do with Miraxy. Vassudev then corrected the mistake by getting the said house enrolled in Matriz Predial under No.1310 and house No.67 of house records. 14 7. Jitendra explained this in his written statement with contention that Raghuraj himself narrated this correction in his application dated 9.4.1987 while supplying better particulars in Civil Revision Application No.26/87 before this High Court. He, however, added that due to original confusion Matriz No.1310 was taken as referring to Miraxy. He further stated that appurtenances of this residential house were in its front as mentioned in the record of rights under sub-division Nos. 11 to 13 and 15 to 21 of Survey No.474 with designation “Tillachem Bhatulem” and “Gharbhatulem Nague Parab”. He, however, added that all of them stand in Tillachem Bhatulem. The structure shown in sub-division 12 was constructed in the third part of Tillachem Bhatulem, gifted to the Raghuraj by Viscount Atmaram. This third plot is registered in Matriz under Nos.252 and 260 which expressly refers to guest house i.e. Casa Para Hospedes. Other appurtenances in sub-division Nos. 15, 16, 17 and 20 are located in third property “Tillachem Bhatulem” also belonged to Raghuraj. Sub- divisions 1 to 9 of Survey no.474, according to Jitendra have been shown in Form I & XIV under the name “Gharbatulem Nague Parab” and sub-divisions 10 to 21 under the name “Tillachem Bhatulem and 15 Gharbhat Nague Parab”. He clarified that third plot “Miraxy” is in no way concerned with the suit property and the suit property has got no bearing on any sub-division as stated in para 3(a) of the plaint. He has then stated about the three gifts, limited right of life, given to Vassudev by Atmaram, inventory proceedings and clubbing of palace and guest house in Item No.259 as an obvious mistake. Thereafter, he has pointed Exchange Deed dated 6.12.1956 and also stated that only third part of “Miraxy” described under No. 25340 with Land Registration Office was exchanged. In other words, he stated that neither palace, nor guest house formed subject matter of this exchange deed. He further pointed out that Vassudev had right to live in the palace during his life time and he resided there accordingly till 1962. Jitendra and other legal heirs of Raghuraj, therefore, claimed that they are exclusive owners of the palace, its appurtenances and also guest house and sought direction to Rajendra to give vacant possession to them. 8. In the face of these pleadings, the trial Court framed issues separately in these suits and those issues as framed in Special Civil Suit No.416/86/A are as under : 16 “ 1. Whether the plaintiff proves that the defendant has no right to the Museum ? 2. Whether the plaintiff proves that the plaintiff is entitled to recover the articles of Annexure B ? 3. Whether the plaintiff proves that the defendant is bound to open the worship room whenever required by the plaintiff ? 4. Whether the defendant proves that the suit property where residential house exists belongs to the defendant alone ? 5. What relief ? What Order ?” The issues framed in Special Civil Suit No.426/86/A are as under : “ 1. Whether the plaintiff proves that the plaintiff is entitled for the removal of the Latch and Lock to the DEVGHAR? 2. Whether the plaintiff proves that the plaintiff is entitled to recover the possession of Ago-Chi- Kudd and the adjoining hall ? 3. Whether the defendants prove that the suit property where residential house is located belongs exclusively to the said Raghuraj ? 4. What relief ? What Order ?” The issues framed in Special Civil Suit No.16/87/A are as under : “ 1. Whether the plaintiff proves that they are the 17 owners of the Museum along with Museum objects ? 2. Whether the plaintiff proves that the plaintiff has been wrongfully dispossessed ? 3. Whether the defendants prove that the suit is liable to be stayed ? 4. What relief ? What Order ?” The issues framed in Special Civil Suit No.499/87/A are as under : “ 1. Whether the plaintiffs prove that the properties mentioned in paras 3(a) to 3(d) correspond to the respective sub-divisions of the suit property ? 2. Whether the plaintiffs prove that they are exclusive owners of the suit property surveyed under No.474 sub-divisions 1 to 12 and 14 to 22 and the defendants occupation of portion of the residential house under survey No.474/10 is permissive ? 3. Whether the plaintiffs prove that sub-divisions No.13 of Survey No.474 which is the family guest house is located in the properties of the plaintiff No.1 described under Nos. 34099 and 34090 and the plaintiffs are the exclusive owners of the properties and the guest house constructed thereon ? 18 4. Whether the plaintiffs prove that the defendants are trying to obstruct the plaintiffs from enjoying the ancestral residential house including the part under the occupation of the plaintiffs ? 5. Whether the plaintiffs prove that Raghuraj took forcible possession of the guest house in June, 1986 ? 6. Whether the plaintiffs prove that Raghuraj removed items, furniture and fixtures existing in the said guest house and that the same items belong exclusively to the plaintiffs ? 7. Whether the defendants prove that the residential house now surveyed under sub- division 10 of survey No.474 stands on lands belonging to two adjoining properties viz. TILLACHEM BATULEM and MOLLI SOMNATH and that the same has nothing to do with the property described under No.25340 ? 8. Whether the defendants prove that the appurtenances to the residential house lying in front of the same and shown under sub- division Nos. 11 to 13 and 15 to 21 of Survey No.474 stand on lands which are parts of TILLACHEM BHATLEM ? 19 9. Whether the defendants prove that they are the exclusive owners of the residential house and all the appurtenances thereto and the plaintiffs' occupation of a part of the residential house is permissive ? 10. To what relief, if any are the plaintiffs entitled? “ In its Judgment, the learned Civil Judge, Sr. Division, Mapusa has recorded that common issue in all 4 suits was “Whether Raghuraj and his legal representatives prove that they are exclusive owners in possession of the residential house, museum, guest house and other structures along with appurtenances or whether Rajendra Deshprabhu is exclusive owner in possession of the said structures?” It also stated that the second issue was “Whether the said Raghuraj is entitled to get vacant possession of the residential house along with other items from Rajendra Deshprabhu or whether Rajendra Deshprabhu is entitled to evict Raghuraj and his family from the residential house, Museum, guest house and other structures along with items?” 9. In Special Civil Suit No. 416/1986, seven witnesses were examined on behalf of Raghuraj, plaintiff therein. Prezeres Gonsalves 20 PW.6 examined therein is the Surveyor. Defendant Rajendra examined himself and 11 witnesses. DW.12 Purushottam Dalvi is his surveyor. After recording of this evidence, by Order dated 15.3.1991, all the four suits were ordered to be consolidated and common evidence was led therein. Rajendra examined himself as PW.1 and 10 other witnesses after consolidation. While the defendants in other 4 suits i.e. legal heirs of Raghuraj chose to examine Jitendra as DW.1 and Commissioner Advocate V.B. Thali as DW.2 in their defence. After appreciating the said evidence and hearing arguments, the trial Court decreed partly Special Civil Suits No.420/86/A, 16/1987/A and 499/1987/A, holding Rajendra to be the exclusive owner in possession of the palace, guest house and other structures situated inside the compound as described in the Deed of Renunciation and Exchange dated 6.12.1956. It further held that the items kept in museum, Devghar, Macharachi Kudd and Agochi Kudd, the palace and the guest house jointly belonged to families of Raghuraj and Rajendra along with other legal heirs. It directed to restore those items in possession of Rajendra's and Raghuraj's family in the residential house and the guest house. It directed Raghuraj and his family to vacate the residential house, guest house and other structures within six months from the date of its Judgment. It, therefore, 21 dismissed Special Civil Suit No.416/1986/A filed by Raghuraj and counter claims of legal heirs of Raghuraj in other suits. However, it did not grant costs of litigation to anybody. 10. In this background, we have heard learned Senior Advocate Mr. M.B. D'Costa with Mr. J. A. Lobo for the legal heirs of Raghuraj Deshprabhu and Senior Advocate Mr. V. B. Nadkarni, with Mr. M. S. Sonak, for the legal heirs of Rajendra Deshprabhu. 11. Learned Counsel for the appellant has mentioned that Atmaram was not pleased with Vassudev and, therefore, he made over title of Viscont to his grand son Raghuraj and also valuable immovable properties like palace and guest house with all moveables/contents thereof were also gifted to Raghuraj. Vassudev was only given life interest with obligation to pass on title to Raghuraj on his death. Vassudev, therefore, had reason to play some mischief and to deprive Raghuraj of suit properties. He invites attention to evidence on record to show that all guests visiting the family and museum were entertained by Raghuraj only. He argues that Raghuraj being Viscont was known to receive guests and, therefore, it was but natural to make over the 22 palace and guest house to him. Because of his illwill or then out of sheer confusion Vassudev added suit properties to Miraxi in the inventory proceedings while describing item No.259 and then in 1956 while renouncing his rights and at the time of execution of Deed of Renunciation and exchange he gave item No.259 to Rajendra by including it as Item No.87 in that document. He argues that the palace and the guest house, in fact, do not form part of the said document dated 6.12.1956. He has further invited attention to the pleadings of parties and evidence on