-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 63 OF 2008 WITH SECOND APPEAL NO. 74 OF 2008 AND CIVIL APPLICATION NO. 180 OF 2008 SECOND APPEAL NO. 63 OF 2008 1. Sonat Kumar Kontak and his wife 2. (A) Mrs. Sonat Kumar Kontok, Both r/o. 225, Jolly Maker Apartments 3, Caffe Parade, Bombay 400 005 The Appellant no.2 represented by her husband Her lawful attorney constituted by the Power of Attorney dated 2nd day of January of the year 1982. (Original Defendant nos. 4 and 4a and Respondents nos. 4 and 4A in the First Appeal) .... Appellants V e r s u s 1. Antonio Dourado and his wife 2. Joana Ancessa Rocha Both landlords, ro. House no. 397, Gabriel Cruz Waddo, Utorda ... Plaintiffs in the suit and Appellants in the First Appeal. 3. Gaspar Antao and his wife 4. Mrs. Gaspar Antao 5. Rosario Antao and his wife -2- 6. Mrs. Rosario Antao The Respondents nos. 3 to 6 represented by their attorney Boajunta Pereira resident of House no. 334, Francisco Costa waddo, Utorda Village, Salcete Taluka. 7. James Dourado son of Joao Batista Dourado, Bachelor, Major of age, R/o. House no. 398, Gabriel Cruz Waddo, Utorda 8. Antonio Dourado Son of Agnelo Dourado and his wife. 9. Mrs. Antonio Dourado Both the above r/o. Ladies Dress Makers, 193, Babar Road, Bandra, Mumbai 50. 10. Florina Dourado, R/o. Gabriel Cruz Waddo, Near Church, Utorda. 11. Adriano Dourado and his wife 12. Mrs. Andriano Dourado Both r/o. Gabriel Cruz waddo, Near Church Utorda, (Expired) Represented by Legal Representatives. a) Roque Dourado, major of age, married, and his wife, b) Ines Fernandes Dourado, major of age, married, Both r/o. Gabriel Cruz Waddo, Behind Lourdes Church, Utorda, Salcete, Goa. -3- c) Mr. Vicente Dourado, major of age, married, and his wife. d) Mrs. Celeste Dourado Both r/o Gabriel Cruz Waddo, Behind Lourdes Church, Utorda, Salcete, Goa. e) Lino Batista Dourado, major of age, married, and his wife f) Conny Dourado Both r/o. Gabriel Cruz Waddo, Behind Lourdes Church, Utorda, Salcete, Goa. g) Xavierino Dourado, major of age, married and his wife h) Mrs. Virgilia Dourado, Both r/o Wilhelmstr. 33, 55543 bad Kreuznach, West Germany. 13. Peter Dourado and his wife 14. Mrs. Peter Dourado Both r/o. Near Church Majorda, 15. Macklin Dourado 16. Lourenco Dourado Both r/o. Gabriel Waddo, Near Church Utorda, 17. Rosy Dourado and her husband 18. Agostinho Fernandes, Both r/o. Odlem Bhat, Utorda. 19. Martinho Filipe Dourado & his wife 20. Antonieta Fernandes, Both r/o. Near Church Utorda. -4- 21. Ganesh Nikonta Kontok and his wife 22. Mrs. Ganesh Nilkonta Kontok, Both presently r/o. Artur Viegas, Bunglow Caransalem, Panaji. 23. Luis (Ines) Fernandes Dourado and her husband. 24. Roque Dourado, Both r/o. Gabriel Waddo, Near Church Utorda. …... Respondents Mr. M. P. Almeida, Advocate for the Appellants. Mr. M. S. Usgaonkar, Senior Advocate with Mr. Sudesh Usgaonkar, Advocate for Respondent nos. 1 and 2. SECOND APPEAL NO. 74 OF 2008 1. Shri Antonio Dourado, son of Andre Dourado, aged 75 years, married, occupation landlord, r/o. House no. 397, Gabriel Cruz Waddo, Utorda, Salcete, Goa. 2. Smt. Joana Ancessa Rocha, wife of Shri Antonio Dourado, aged 65 years, occupation housewife, r/o. House no. 397, Gabriel Cruz Waddo, Utorda, Salcete, Goa. …... Appellants/Original Plaintiffs V e r s u s 1. Shri Gaspar Antao, major, married, 1(a) Smt. Gaspar Antao, major, married, occupation housewife, residing at B2, Garden View, Near Post Office, Margao. -5- 2. Shri Rosario Antao, major, married, 2(a) Smt. Rosario Antao major, married, occupation housewife, residing at House No. Utorda, Salcete, Goa. 3. Shri Joao Batista Dourado, since deceased through his LR's: 3(a) Shri James Dourado major, bachelor r/o. House no. 398, Gabriel Cruz Waddo, Utorda, Salcete, Goa. 3(b) Shri Agnelo Dourado, since deceased through his LR;s: 3(c) Shri Antonio Dourado, major, married, 3(d) Smt. Antonio Dourado, Major, married, occupation housewife, Both residing C/o. Tony Dourado, Qatar Fertilizers Co. (AQFCO), Doha Qatar (A.G.) 4. Shri Sonat Kumar Kontok, major, married, 4a) Smt. Sonat Kumar Kontok, major, married, occupation housewife Both residing at Flat No. 225, Jolly Makers Apts., Coffe Parade, Mumbai – 400 005. 5. Smt. Florina Dourado, major, occupation housewife, r/o. Gabriel Cruz Waddo, Behind Lourdes Church, Utorda, Salcete, Goa. -6- 6. Shri Adriano Dourado, major married, 6(a) Smt. Adriano Dourado, major, married, occupation housewife, Both r/o. Gabriel Cruz Waddo, Behind Lourdes Church, Utorda, Salcete, Goa. 7. Shri Peter Dourado, major, married, 7(a) Smt. Peter Dourado, major, married, occupation housewife, Both r/o. Behind Lourdes Church, Utorda, Salcete, Goa. 8. Shri Macklin Dourado, major, resident of Gabriel Church Waddo, Behind Lourdes Church, Utorda, salcete, Goa. 9. Shri Lourenco Dourado, major, residing at Gabriel Cruz Waddo, Behind Lourdes Church, Utorda, salcete, Goa. 10. Smt. Rosy Dourado, major, married, occupation housewife Odlem Bhat, Utorda, Salcete, Goa. 10.a) Smt. Agostinho Fernandes, major, married, occupation housewife, Both r/o Odlem Bhat, Utorda, Salcete, Goa. 11. Shri Martinho Filipe Dourado Dec. Through L.R.s 11.a) Smt. Antonieta Fernandes major, married, occupation housewife, Dec. Thorugh L.R.s -7- a) Roque Dourado, major of age, married, and his wife, b) Ines Fernandes Dourado, major of age, married, Both r/o. Gabriel Cruz Waddo, Behind Lourdes Church, Utorda, Salcete, Goa. c) Mr. Vicente Dourado, major of age, married, and his wife. d) Mrs. Celeste Dourado Both residents of Gabriel Cruz Waddo, Behind Lourdes Church, Utorda, Salcete, Goa. e) Lino Batista Dourado, major of age, married, and his wife f) Conny Dourado major of age, married Both residents of Gabriel Cruz Waddo, Behind Lourdes Church, Utorda, Goa. g) Xavierino Dourado, major of age, and his wife h) Mrs. Virgilia Dourado, Both r/o Wilhelmstr. 33, 55543 Bad Kreuznach, West Germany. 12. Shri Inacia Maria Estella Dourado Since deceased, represented by her L.R's, the Respondents Nos.3(a), 3(c) & 3(d). 13. Shri Ganesh Nilkonta Kontok major, married, 13a) Smt. Ganesh Nilkonta Kontok major, married, occupation housewife, -8- Both presently r/o Artur Viegas Buyngalow, Caranzalem, Panaji. 14. Smt. Luis (Ines) Fernandes Dourado major, married, occupation housewife, 14a) Shri Roque Dourado major, married, Both r/o Gabriel Cruz Waddo, Behind Lourdes Church, Urtoda Salcete, Goa. …... Respondents/ Original Defendants Mr. M. S. Usgaonkar, Senior Advocate with Mr. Sudesh Usgaonkar, Advocate for the Appellants. Mr. M. P. Almeida, Advocate for the Respondent nos 4, 4(a), 13 and 13(a). CORAM: F. M. REIS, J. DATE : 16 th July, 2010. ORAL JUDGMENT Heard the learned Counsel for the Appellants and the Respondents. 2. Both the Appeals are taken up together as they challenge the same impugned Judgment and Decree dated 30.01.2008, passed by the learned Adhoc District Judge-1, FTC-I, South Goa, at Margao, in Regular Civil Appeal no. 126/2004. 3. Both the Appeals are admitted on the following substantial -9- question of law : 1. Whether there is a vital infirmity in the Judgment of the First Appellate Court as per Order 41 Rule 31(c) of the Civil Procedure Code, because the First Appellate Court did not address to all the contentions raised by the respective parties and give appropriate reasons whilst disposing of the said Appeal ? 3. Heard finally with the consent of both the Counsel. The learned Counsel for the Respondents waive service for final hearing. 4. The above Appeal challenges the Judgment and Decree dated 31.01.2008, passed by the learned Adhoc District Judge-1, FTC-1, South Goa, Margao, in Regular Civil Appeal no. 126/2004. The Appellants in the Second Appeal no.74/2008 are the Plaintiffs in the suit while the Respondents therein are the Defendants. The Appellants in Second Appeal no. 63/2008 are the original defendant nos. 4 and 4(a) in the suit. The parties shall be referred as they figure in the cause title of the Judgment and Decree passed by the Trial Court. 5. The Plaintiffs have filed the suit claiming that they are owners in possession of the property known as “Peddachem Orda Quarta-parte e Quarta-parte de casas de morada com seu patao e quintal”, situated at Utorda Village of Salcete Taluka and registered in the Land Registration Office under no. 11.413 of Book B-43 old. The said property was surveyed under no. -10- 179/14, wherein the Plaintiffs had their residential house. It is the contention of the Plaintiffs that during the new survey, part of their property is wrongly included in the adjoining properties surveyed under no. 179/1, 2, 3, 4, 11, 5, 12 and 8. It is further their contention that they have filed the suit for declaration that the said portion of the property which has been wrongly surveyed belongs to them and that the same is in their possession. They had also prayed for demarcation of the property in accordance with the plan prepared by their Engineer. The Defendants contested the said suit and disputed the contentions of the Plaintiffs that the property has been wrongly surveyed for the reasons set out in the written statements. The Defendant no.4 has also filed a counter claim to the effect that the plot surveyed under no. 179/1 belongs to him and, accordingly, prayed that the Plaintiffs be directed to deliver the vacant possession of the said portion of the property. The learned Civil Judge, Junior Division at Vasco da Gama, after framing the issues and recording of evidence, dismissed the suit filed by the Plaintiffs but, however, the counter claim filed by the Defendant no.4 was decreed. The Plaintiffs were directed to deliver the vacant possession of the plot surveyed under no. 179/1 to the Defendant no.4. As far as the prayer for mesne profits, the same came to be rejected. 6. Being aggrieved by the said Judgment and Decree passed by the learned Trial Judge, the Plaintiffs preferred the Regular Civil Appeal no. 126/2004. By Judgment and Decree dated 31st January, 2008, the learned Adhoc District Judge-1 dismissed the Appeal preferred by the Appellants and -11- set aside the Decree passed in favour of Defendant no.4 and, consequently, the counter claim filed by him came to be dismissed. 7. Being aggrieved by the said Judgment and Decree dated 31st August, 2008, the Plaintiffs as well as the Defendant no.4 and 4(a) have preferred the present Appeal. 8. The learned Senior Counsel appearing for the Plaintiffs has assailed the impugned Judgment and submitted that the learned Appellate Court has failed to address himself to the points for determination and, consequently, came to an erroneous finding that the Plaintiffs have failed to establish that the disputed portion of land belongs to the Plaintiffs. He further submitted that the learned Judge has totally misdirected himself whilst passing the impugned Judgment without considering that the suit filed by the Plaintiffs was for demarcation of the suit property. The learned Judge as such committed a grave irregularity in not following the provisions of law in the manner in which the demarcation of the property are to be effected. The learned Senior Counsel has raised strong objection to the manner in which the learned Appellate Court has decided the First Appeal as no reasons have been given as to in what manner the findings of the learned Trial Court have been upheld. The learned Senior Counsel has further submitted that on perusal of the Judgment, one finds that no appreciation of evidence has been carried out by the Appellate Court whilst deciding the Appeal, though the documentary evidence adduced by the Plaintiffs conclusively established that -12- the suit portion of the property belongs to the Plaintiffs but, on the contrary, the learned Appellate Court has not even addressed himself to the documentary evidence to come to the conclusion that the Plaintiffs have failed to establish their case. The learned Senior Counsel further submitted that the points for determination framed by the Lower Appellate Court itself disclose that there is non-application of mind by the Lower Appellate Court in addressing to the points in controversy whilst passing the impugned Judgment. The learned Senior Counsel as such submitted that as there are no reasons given by the Lower Appellate Court and, as such, the impugned Judgment deserves to be quashed and set aside and the matter be remanded for fresh adjudication by the Lower Appellate Court. 9. On the other hand, Shri M. P. Almeida, learned Counsel appearing for Defendant no.4 and 4(a) has supported the Judgment of the Lower Appellate Court on the ground that there is no evidence on record to establish that the suit portion belongs to the Plaintiffs. He further submitted that though the Lower Appellate Court has not given adequate reasons to confirm the findings of the learned Trial Judge, nevertheless, on perusal of the impugned Judgment, it manifests that there is adequate application of mind to the point in controversy. He further submitted that the Plaintiffs have failed to produce any type of evidence that the suit property belonged to the Plaintiffs. The learned Counsel has raised a grievance to the effect that the Lower Appellate Court has not addressed himself to the points of controversy and, consequently, came to an erroneous conclusion that the Defendant no.4 was -13- not entitled for the relief claimed in the counter claim. He further pointed out that land surveyed under no. 179 belongs to Defendant no.4 and, as such, was entitled for such relief. He further submitted that there was erroneous appreciation of evidence on the part of the Lower Appellate Court whilst coming to the conclusion that the Defendant no.4 was not entitled for the property claimed in the Counter Claim. He as such submitted that the Lower Appellate Court can be directed to decide the First Appeal afresh in accordance with law after quashing the impugned Judgment. 10. Having heard the learned Counsel and on perusal of the record, it is evident that the Lower Appellate Court has not given appreciable reasons to come to the conclusion that the Plaintiffs have failed to establish that the suit property belongs to the Plaintiffs. The learned District Judge has also failed to consider the evidence adduced by the Defendant no.4 in support of his counter claim and, consequently, came to an erroneous conclusion that the Defendant no.4 is not entitled to the counter claim. On perusal of the Judgment passed by the Trial Court, one finds that it has extensively dealt with the oral and the documentary evidence adduced by the parties for deciding the issues framed therein. The Lower Appellate Court while disposing of the said Regular Civil Appeal no. 126/2004, has in a very cryptic manner and without examining the oral as well as documentary evidence on record, disposed of the Appeal filed by the Plaintiffs. Even whilst reversing the findings of the learned Trial Judge with regard to the claim of Defendant no.4 in the counter claim, the learned District Judge has not even given adequate -14- reasons as to why Defendant no.4 was not entitled to the reliefs as prayed for. It is to be remembered that the First Appeal is a valuable right of the parties and unless there are restrictions imposed by law, the whole case of the parties is open for re-hearing both on the question of fact and of law. As such, the Judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth and pressed by the parties for the decision of the Appellate Court. Even though whilst confirming the findings of the Trial Court, the Appellate Court is entitled to express a general agreement with the reasons given by the Trial Court nevertheless, in the present case, one finds that the Lower Appellate Court has not even considered the submission of the rival parties to confirm the findings of the Trial Judge. 11. The Apex Court, in the Judgment reported in 2001(3) S.C.C. 179 in the case of Santosh Hazari v. Purushottam Tiwari, has held at Para 15, thus : “15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and -15- dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean -16- that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai9) The rule is — and it is nothing more than a rule of practice — that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first -17- appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one. 12. In 2008(2) S.C.C. 728, in the case of Nopany Investments (P) Ltd. v. Santokh Singh (HUF), the Apex Court has held at pars 16 and 17, thus : “16. Before we consider the findings of the first appellate court as well as the High Court on this issue, we must keep on record that in Madhukar v. Sangram this Court had to reverse the findings of the High Court because the High Court erred in allowing the respondent-plaintiffs first appeal without even considering the grounds on which the trial court had dismissed the suit and without discussing the evidence on record. On the same lines, the decision of this Court in Santosh Hazari case was based. In our view, the aforesaid two decisions of this Court are distinguishable on facts with the present case. A perusal of the judgment of the first appellate court after remand would clearly indicate that the same was neither cryptic nor based on non-consideration of the issues involved in the appeal. Apart from that, it has to be kept in mind that the decisions of this Court in Madhukar v. Sangram and Santosh Hazari case were considering the reversal of the findings of fact of the -18- trial court. In the present case, the first appellate court had affirmed the findings of the trial court, which were based on total consideration of the material evidence —documentary and oral on record. It is well settled that in the case of reversal, the first appellate court ought to give some reason for reversing the findings of the trial court whereas in the case of affirmation, the first appellate court accepts the reasons and findings of the trial court. In any view of the matter, from a perusal of the judgment of the first appellate court, it is clear that it reflects conscious application of mind and has recorded the findings supported by reason on all the issues arising along with the contentions put forward by the parties. 17. In Santosh Hazari case this Court observed: (SCC p. 188, para 15) “15. … The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice.” (emphasis supplied) Again, in Madhukar v. Sangram6 this Court had to set aside the judgment of the High Court because the first appellate court was singularly silent as to any discussion, either of the documentary or the oral evidence. In addition, this Court in that decision was of the view that the findings of the first appellate court were so cryptic that none of the relevant aspects were noticed. In this background, this Court at para 8 observed as follows: (SCC p. 758) “8. Our careful perusal of the judgment in the first appeal shows that it hopelessly -19- falls short of considerations which are expected from the court of first appeal. We, accordingly set aside the impugned judgment and decree of the High Court and remand the first appeal to the High Court for its fresh disposal in accordance with law.” 13. Considering the said Judgment of the Apex Court and on perusal of the impugned Judgment passed by the Lower Appellate Court, I am satisfied that, the First Appellate Court did not discharge the duty cast on it as a Court of First Appeal. 14. The learned Counsel appearing for the Respondents as well as for Defendant no.4 are