1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.32 OF 2001 1. Shri Laxman S. Gaonkar, of major age, Indian National, Residing at Bhuipal, Honda, Sattari, Goa. (deceased) represents by his legal heirs 1(a) Shri Shankar Laxman Gaonkar, 1(b) Smt. Dropadi Shankar Gaonkar, 1(c) Shri Krishna Laxman Gaonkar, 1(d) Shri Shakru Laxman Gaonkar, 1(e) Smt. Jayashri Shakru Gaonkar 1(f) Smt. Kasturem Laxman Gaonkar, 1(g) Smt. Vasanti Laxman Gaonkar, 1(h) Smt. Bharati Laxman Gaonkar, 1(i) Smt. Kaeri Laxman Gaonkar, All residents of Bhuipal, Honda, Sattari, Goa. .. Appellants. V e r s u s 1. Smt. Pramila Kanta Naik, widow of Kanta Ramnath Naik, Of major age, Indian National Resident of Betim,Bardez,Goa 2. Smt. Laxmi Satchit Potekar, Of major age, Indian National, Wife of Sathit Bhiku Potekar, Residing at Betim, Bardez, Goa 3. Shri Satchit Bhiku Potekar, Of major age, Indian national, Son of Bhiku Potekar, Resident of Betim, Bardez, Goa .. Respondents. Mr. S. D. Lotlikar, Senior Advocate with Ms. Sudha Pai Kir, Advocate for the appellants. Mrs. A. Agni, Advocate for the respondents. CORAM : A. P. LAVANDE, J. Date : 17 th January, 2011. 2 ORAL JUDGMENT : Heard Mr. Lotlikar, learned Senior Counsel for the appellants and Mrs. Agni, learned Counsel for the respondents. 2. By this Second Appeal, the appellants take exception to the judgment and decree dated 26th December, 2000 passed by Additional District Judge, North Goa, Mapusa in Regular Civil Appeal No.46/1993 dismissing the appeal against the judgment and decree dated 31st March, 1993 passed by the Civil Judge, Junior Division, Sattari at Valpoi in Regular Civil Suit no.42/1990 (New). 3. The respondents are the plaintiffs in the above suit, who filed the above referred suit against the appellants/ defendants claiming the following reliefs : “(i) that the defendant, his agents, servants and family members be restrained by an order of perpetual injunction from interfering with the possession of the plaintiffs in respect of the property “Quintenachem Galaum” bearing survey No.16, sub-division 1 of village Bhuipal of Sattari Taluka; (ii) for a declaration to the effect that the entry of the defendant's name in the cultivators column for the year 3 1985-86 in respect of survey no.16, sub-division 1 of village Bhuipal of Sattari Taluka is void and the said entry is liable to be cancelled; (iii) costs of this suit be awarded to the plaintiffs. 4. The appellants / defendants filed the written statement and contested the suit. On the basis of the pleadings, the trial Court framed the following issues : (i) Whether the plaintiffs prove that they have title to the suit property ? (ii) Whether the plaintiffs prove that they are in possession of the suit property ? (iii) Whether the plaintiffs prove that the name of the defendant in cultivator's column is illegal and deserves to be cancelled ? (iv) Is the suit barred by limitation ? (v) Hence what relief, what order ? 5. In the suit, the respondents / plaintiffs examined two witnesses, whereas the appellants/ defendants examined three witnesses. The trial Court upon appreciation of the evidence led by the parties, held in favour of the plaintiffs and consequently, decreed the suit. The appellants preferred the appeal to the District Court which was made over to 4 Additional District Court, Mapusa, who by judgment and decree dated 26th December, 2000 dismissed the appeal. 6. Record discloses that during the pendency of the appeal, the appellants filed an application under Order XLI, Rule 27 of C.P.C. seeking leave to produce the following three documents : (i) Copy of alvara dated 28th February, 1945 (ii) Copy of extract of official gazette no.5, series II, dated 5th May, 1977 (iii) copy of notice under Section 40(2) read with Sections 41 and 184 of Goa Land Revenue Code, 1968 by the Deputy Collector to Bablo Janu Zore dated 18th April, 1995 7. It appears that no formal order was passed on the said application nor the perusal of the impugned judgment passed by the lower appellate Court discloses that the said application has been disposed of. 8. This Second Appeal was admitted on the following substantial questions of law : (i) Whether the Courts below have not taken into consideration the oral and documentary evidence of the 5 Appellants in respect of the possession and if because of this non consideration of the evidence, the Courts below were right in arriving at a finding that the Respondents/ Plaintiffs were in possession ? (ii) Whether it can be said that the appellate Court has taken into consideration the oral and documentary evidence of possession of the Appellants by merely making a passing reference to that evidence without giving a finding about the acceptability of such evidence? 9. Mr. Lotlikar, learned Senior Counsel appearing for the appellants submitted that the appellants / defendants claimed possession and title in respect of the suit property. However, both the Courts below in their entire judgment has not critically analysed the evidence led by the parties and arrived at a finding that the plaintiffs were in possession and had title in respect of the suit property. Mr. Lotlikar submitted that no doubt the lower appellate Court is entitled to concur with the findings given by the trial Court, but before doing so, the judgment of the lower appellate Court should disclose that the lower appellate Court has analysed the evidence led by both the parties in support of their rival claims. According to Mr. Lotlikar, in the present case except for making bare reference to the evidence led by both 6 the parties regarding the possession and title of the suit property, the lower appellate Court has not critically analysed the evidence in so far as possession and title of the suit property is concerned before recording the finding that the respondents were in possession and title of the suit property. He, therefore, submitted that the impugned judgment and decrees passed by both the Courts are liable to set aside. 10. Mrs. Agni, learned Counsel appearing for the respondents supported the impugned judgments and decrees passed by both the Courts below and submitted that both the Courts below have rightly observed that the title as well as the possession in respect of the suit property was with the respondents and, therefore, rightly decreed the suit in favour of the plaintiffs. 11. I have carefully considered the rival submissions and perused the record. 12. At the outset, perusal of the record of the lower appellate Court discloses that on the application dated 13th July, 2000 filed by the appellants under Order XLI, Rule 27 of C.P.C., no formal order has been passed at the time of final consideration of the matter. The lower appellate Court as a 7 matter of law, was bound to consider the said application at the time of passing of the final judgment. Except for making reference to the effect that out of total area of 198752.49 Hectares, an area of 76560 Hectares has been reverted back to the State of Goa, the lower appellate Court has not passed any specific order whether he is allowing the application under Order XLI, Rule 27 of C.P.C. or not. In my considered opinion, the lower appellate Court while passing the judgment and decree, ought to have considered the application dated 13th July, 2000 filed by the appellants under Order XLI, Rule 27 of C.P.C. in the light of the principles laid down by the Apex Court and given a finding as to whether he was allowing the application or not. Such an exercise, admittedly, has not been undertaken by the lower appellate Court. In my opinion, such an exercise is all the more necessary since it was the case of the appellants that by notification dated 17th December, 1976, an area of 76560 Hectares out of the total area of 198752.49 Hectares was ordered to be reverted to the Government in exercise of the powers vested in Clause (f) of subsection 2 of Section 21 of Goa, Daman and Diu Land Revenue Code, 1968. The lower appellate Court was bound to consider whether the documents sought to be produced were necessary for deciding the matters in controversy between the parties and 8 whether the case was made out for producing the same at the appellate stage. Such an exercise having not been done by the lower appellate Court, in my opinion, the decree passed by the lower appellate Court deserves to be quashed and set aside. 13. I also find merit in the submission of Mr. Lotlikar that the lower appellate Court has not critically analysed the evidence led by both the parties in support of their rival claims. Such an exercise has also not been undertaken by the lower appellate Court. In the case of Santosh Hazari Vs. Purushottam Tiwari; 2001(3) SCC 179, the Apex Court has held that the appellate Court has jurisdiction to reverse or affirm the findings of the trial Court and First Appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing on both 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 Apex Court. The Apex Court further held that 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; the expression of general 9 agreement with reasons given by the Court, the decision of which is under challenge, would normally suffice. However, the Apex Court sounded a note of caution that the expression or 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. In my opinion, the lower appellate Court has not followed the ratio of the said judgment in letter and spirit while confirming the judgment of the trial Court. The lower appellate Court was expected to analyse the evidence led by both the parties and consider the reasons given by the trial Court for accepting the case set up by the plaintiffs. 14. In view of the above discussion, both the substantial questions of law are answered in favour of the appellants. The lower appellate Court is directed to analyse the evidence led by both the parties and thereafter render findings in the light of the ratio laid by the Apex Court in the case of Santosh Hazari (supra) after giving opportunity of being heard to both sides. The lower appellate Court shall also deal with the application dated 13th July, 2000 filed by the appellants/ defendants under Order XLI, Rule 27 of C.P.C. and dispose of the same after giving opportunity of being heard to both the parties. 10 15. In view of the above discussion, the judgment and decree dated 26th December, 2000 passed by the lower appellate Court is quashed and set aside and the matter is remanded to the lower appellate Court for fresh decision in the light of the observations made above. 16. Parties either personally or through their Advocates shall appear before the lower appellate Court on 28th February, 2011 at 10.00 a.m. Registry to ensure that the record and proceedings are sent back to the lower appellate Court expeditiously. 17. The appeal is disposed of in aforesaid terms with no order as to costs. A. P. LAVANDE, J. SMA