1 IN THE HIGH COURT OF BOMBAY AT GOA. SECOND APPEAL NOS. 34 & 39 OF 2000. SECOND APPEAL NO. 34 OF 2000. 1. Shri Krishna Hari Vaingankar, ( Since deceased ) represented by legal heirs : (a) Shri Suresh K. Vaingankar, son, (b) Smt. Sunita Suresh Vaingankar, daughter-in-law, (c ) Shri Madan K. Vaingankar, son, (d) Smt. Manisha M. Vaingankar, daughter-in-law (e) Shri Bhalchandra K. Vaingankar, son, (f) Smt. Rekha B. Vaingankar, daughter-in-law. (g) Shri Dilip K. Vaingankar, son, (h) Smt. Deepika D. Vaingankar, daughter-in-law. All residents of Khalchawada, Arambol, Pernem Goa. (I) Smt. Shamal S. Arolkar, daughter, (j) Shri Shankar K. Arolkar, son-in-law, Both residents of House No.83, Bhatwadi, Nanoda, Bicholim Goa. ….. Appellants V e r s u s 1. Shri Tukaram Bhiva Vaingankar, ( Since deceased ) Through legal representatives : 1(a) Satish Tukaram Vaigankar 2 1(b) Satish Tukaram Vaigankar, 1(c) Sangeeta Tukaram Vaigankar 1(d) Suchita Tukaram Vaigankar 1(e) Sunita Tukaram Vaigankar All residents of Khalchawada, Arambol, Pernem Goa. 2. Shri Babuso Laxman Vaingankar, son of late Laxman Vaingankar, aged about 45 years, married, Contractor, residing at Khalchawada, Arambol, Pernem Goa. 3. Smt. Bhanumati Bhanudas Vaingankar, wife of Bhanudas Vaingankar, major of age, housewife, residing at Khalchawada, Arambol, Pernem Goa. …. Respondents Mr. S. Dessai, Senior Advocate with Mr. V. Parsekar, Advocate for the appellants. Mr. S. D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the Respondent nos.1(a) to 1(e). Mr. Sudin M. Usgaonkar, Advocate for the Respondent nos 2 and 3. SECOND APPEAL NO. 39 OF 2000. 1. Babuso Laxman Vaingankar, son of late Laxman Vaingankar, aged about 45 years, married, contractor, 2. Smt. Bhanumati Bhanudas Vaingankar, 3 wife of Bhanudas Vaingankar, major of age, housewife, both resident of Khalchawada, Arambol, Pernem Goa. … Appellants V e r s u s 1. Tukaram Bhiva Vaingankar, ( Since Deceased ) represented by h is legal heirs : (a) Satyawas Tukaram Vaingankar, major, married, (b)Satish Tukaram Vaingankar, major, married, © Sangeeta Tukaram Vaingankar, major, married, (d) Suchita Tukaram Vaingankar, major, married, (e) Sunita Tukaram Vaingankar, major, married, All residents of Khalchawada, Arambol, Pernem Goa. 2. Krishna Hari Vaingankar ( Since Deceased ) (a) Sudan alias Suresh K. Vaigankar, major, married, (b)Madan K. Vaigankar, major, married, © Bhalchandra K. Vaigankar, major, married, (d) Dilip K. Vaigankar, major, married, (e) Shamal S. Arolkar, major, married, All residents of Khalchawada, Arambol, Pernem Goa. … Respondents 4 Mr. Sudin M. Usgaonkar, Advocate for the appellants. Mr. S. D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the Respondent nos.1(a) to 1(e). Mr. S. Dessai, Senior Advocate with Mr. V. Parsekar, Advocate for the Respondent nos 2(a) to (e). Coram:-A. P. LAVANDE,J Reserved on: - 6th January, 2011. Pronounced on: -7th June, 2011. JUDGMENT Both these Second Appeals are being disposed of by common judgment since they arise out of the Judgment and decree dated 28.10.1999 passed by the Additional District Judge, Mapusa , in Regular Civil Appeal No. 86/1994 whereby the lower Appellate Court allowed the appeal preferred by the plaintiff Tukaram Shiva Vaigankar ( since deceased) preferred against judgment and decree dated 5.9.1994 passed by the Civil Judge, Junior Division, Pernem in Regular Civil Suit No. 1/1986 whereby the suit filed by the plaintiff for permanent injunction was dismissed. 5 2. Shri Tukaram Bhiva Vaigankar, filed the above suit against the defendants Shri Krishna Hari Vaigankar, Shri Babuso Laxman Vaigankar, Smt. Bhanumati Bhanudas Vaigankar seeking relief of permanent injunction in respect of the property “Uttarekadil Tekdi” bearing survey no. 190/0 situated in the village of Arambol, in Pernem Taluka. The suit was contested by the defendants and by Judgment and decree dated 5.9.1994, the trial Court dismissed the suit. The lower Appellate Court allowed the appeal preferred by the original plaintiff by judgment and decree dated 28.10.1999. 3. The parties shall hereinafter be referred to as per their status before the trial Court. 4. The plaintiff filed the above suit seeking permanent injunction on the ground that by Alvara no.752 dated 22.9.1938 erstwhile Portuguese Government granted suit property to his father Bhiva Vaigankar. The suit property consists of cashew trees and paddy field portion. Plaintiff's father expired in the year 1964 and thereafter the plaintiff was in exclusive possession of the suit property and even before the death of his father he was managing and possessing the suit property 6 alongwith his father. Prior to his death he was paying rent of Rs. 6.35 to the Government regularly. Vide an application dated 27.11.1984 he applied to the Mamlatdar of Pernem for the bestowal of the suit property to him being the legal heirs of late father but the said application was not decided. According to the plaintiff, defendant no.1 started interfering with the suit property. On 16.10.1985 he lodged complaint before the Mamlatdar Pernem which was drafted by Raya Desai who was not educated. According to the plaintiff it was not correctly drafted as per his instructions. Defendant no.1 objected to the said application on the ground of jurisdiction and as such he was advised by the Advocate to withdraw the same. On these pleadings the plaintiff filed above suit simpliciter seeking permanent injunction against the defendants. 5. The case of the defendant nos. 1 and 2 was that the grandfather of the plaintiff and defendant no. 2 and father of defendant no. 1, Hari Moso Vaigainkar was not in good health and because of his old age he requested his eldest son Bhiva to obtain Alvara in his name and as such Alvara stood in the name of father of plaintiff and therefore his name was inserted in form I and XIV. It was further case of the said defendants that though Alvaro stood in the name of Bhiva it was in fact obtained on 7 behalf of Shri Hari Vaigankar. It is further their case that there was common economy between father of the plaintiff, defendant no.1 and their three brothers namely Laximan, Shivram and Vithal. All the five brothers developed the suit property and carried out cashew plantation. However about two years prior to death of Bhiva, the suit property was partitioned amicably and possession and enjoyment of separate share of five brothers was confirmed. Defendant no.1 developed whole of cashew garden portion by planting cashew trees and started enjoying the cashew trees exclusively as tenant of other brothers by paying them an annual rent of Rs.560/-. It was their case that plaintiff was never in possession and enjoyment of cashew trees and paddy portion of the suit property was enjoyed by the plaintiff and defendants separately since two years prior to death of Bhiva. 6. On the basis of the pleadings of the parties the trial Court framed following issues:- 1 Whether the plaintiff proves that he is in possession of the suit property? 2 Whether the defendants prove that the suit property was partitioned among the plaintiff and the defendants as stated in para 5 of the written statements, and the plaintiff and the defendants 8 are in possession of their respective portions? 3 Whether the defendant no.1 proves that he is in exclusive possession of the cashew garden portion of the suit property? 7. In the said suit the plaintiff examined himself as Pw1 and his brother in law Sudan Kalangutkar as Pw2. On behalf of the defendants five witnesses were examined namely Krishna Vaigankar, DW1, Babuso Vaigankar, DW2, Ladu Naik, DW3, Manuel D'Souza, DW4 and Jairam Satelkar, DW5. The parties also produced documentary evidence. 8. The trial Court upon appreciation of the evidence, oral and documentary held that the plaintiff has not proved that he was in possession of the suit property but defendants have proved that the suit property was partitioned between the plaintiff and the defendant and parties were in possession of their respective portions. The trial Court also held that defendant no.1 had proved that he was in exclusive possession of cashew garden portion of the suit property. 9. The plaintiff filed Regular Civil Appeal no.86/1994 challenging the judgment and the decree passed by the trial Court. The 9 lower Appellate Court framed the following points for determination:- 1 Whether the appellant proves that the title and possession of the suit property is with him? 2 Whether the respondents prove that the suit property was jointly enjoyed and possessed by appellant and respondents? 3 Whether the respondent no.1 proves that he is the lessee of the cashew plantation and paying yearly rent of Rs.560/- to others? 10. The lower Appellate Court held that the plaintiff had proved title and possession of the suit property and respondents have not proved that the suit property was jointly enjoyed and possessed by both the parties and defendant no.1 had not proved that he was lessee of cashew plantation on a yearly rent of Rs. 560/-. 11. Both the appeals have been admitted on the following substantial questions of law:- i. Whether the learned District Judge has committed jurisdictional error or error of law apparent on the face of the impugned decree, or substantive error of law in exercising contrary discretion over discretion exercised by the Trial Court in refusing relief of permanent injunction when the Appellate Court failed to reach a finding or raise a point for determination that the trial Court had reached a perverse finding or had exercised 10 jurisdiction arbitrarily? ii. Whether in a suit for permanent injunction, on the ground that the Defendant has invaded or threatened to invade right to, or enjoyment of property, it is necessary as a principle of law to prove individual and exclusive title to the property by the plaintiff and whether derivative title is not sufficient for the purpose of relief under Section 38 of the Specific Relief Act, 1963 ? iii. Whether presumption u/s 105 of the Goa Land Revenue Code, 1968, is not available to the plaintiff in a suit for permanent injunction, when he has not proved title, exclusive and individual to the suit property ? iv. Whether the ld. District Judge has framed point no.2 for determination, contrary to the pleadings of the parties, more particularly when the Defendant had pleaded partition of the suit property, and separate enjoyment in definite portions of the same and thereby has committed jurisdictional error or error of law apparent on the face of the impugned decree,or substantive error of law ? v. Whether the suit had to be dismissed on admission of the plaintiff that the Defendant no.1 (Appellant), was in possession of the suit property and was enjoying it as spelt out from the complaint dated 16.10.1985 because the plaintiff had failed to prove the basic ingredient of enjoyment of the property in terms of Sec. 38 of the Specific Relief Act? 12. Mr. Dessai, learned Senior Counsel appearing on behalf of the legal representatives of defendant no.1/the appellants in Second Appeal no. 34/2000 submitted that the lower Appellate Court erred in allowing the appeal by reversing the decree passed by the Trial Court without adverting to the findings given by trial Court. Learned Counsel further 11 submitted that the suit filed by the plaintiff simpliciter for permanent injunction was not maintainable since there was cloud on the tittle of the plaintiff and as such declaration ought to have been sought by the plaintiff. According to learned Counsel although Alvara was in the name of Bhiva, actually it was taken by Hari, father of Bhiva and Krishna, Laxman, Shivram and Vithal since Bhiva was the eldest son and Hari was not keeping good health. Learned Counsel further submitted that since there was cloud on the title of the plaintiff, the suit simpliciter for permanent injunction filed by the plaintiff was not maintainable. Mr. Desai further submitted that much prior to the death of Bhiva in the year 1964 there was amicable oral partition of the suit property and all the five brothers enjoyed separate portion of the suit property and cashew portion was allotted to the Krishna exclusively on condition that he should pay Rs.560/- per year to other brothers. According to learned Counsel in any case the lower Appellate Court could not have held that plaintiff had title and possession in respect of the suit property by reversing the finding of the trial Court that plaintiff had failed to prove exclusive possession of the suit property. According to learned Counsel plaintiff had neither proved the title nor proved the possession in respect of the suit property. Learned Counsel further submitted that Raya Desai who drafted the 12 complaint dated 16.10.1985 ought to have examined by the plaintiff to prove that complaint was not properly drafted as per his instructions and since the plaintiff had not examined Raya Desai, the said document clearly disproves the case set up by the plaintiff. According to learned Counsel the grant made in favour of Hari was provisional and the same was not heritable. Learned Counsel further submitted that the evidence led by the plaintiff to prove his possession was not sufficient to prove exclusive possession of the suit property by the plaintiff. According to learned Counsel the State of Goa being the owner of the suit property was a necessary party and as such the lower Appellate Court had erred in decreeing the suit without State of Goa being joined as party in the suit. Learned Counsel further submitted that lower Appellate Court has not exercised the appellate jurisdiction in accordance with settled principles governing interference with the judgment of the trial Court. According to learned Counsel the findings recorded by the lower Appellate Court are perverse and as such decree passed by the lower Appellate Court deserves to be set aside. In support of his submission Mr. Desai relied upon the following judgments:- i. Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs and others, AIR 2008 SC 2033 13 ii. Santosh Hazari Vs. Purushottam Tiwari, (2001) 3 SCC 179 iii Ramji Rai and anr. Vs. Jagdish Mallah(dead) thorugh LR.s and anr., (2007) 14 SCC 200. iv. The Printers (Mysore) Private Ltd., Vs. Pothan Joseph, AIR 1960 SC 1156. v. Hero Vinoth Vs. Seshammal, (2006) 5 SCC 545. 13. Mr. Usgaonkar, learned Counsel appearing for the defendant nos. 2 and 3/appellants in Second Appeal No. 39/2000 adopted the submissions made by Mr. Dessai learned Senior Counsel. 14. Per contra Mr. S. D. Lotlikar, learned Senior Counsel appearing for the legal representatives of original plaintiff in both the appeal at the outset submitted that the substantial questions of law framed at the time of admission of second appeal do not arise and as such both the appeals deserve to be dismissed. Learned Counsel further submitted that having regard to the fact that the plaintiff had filed suit simpliciter for permanent injunction based on the title it was not necessary for the plaintiff to seek declaration in as much as having regard to the defence 14 taken by the defendants, it cannot be said that there is cloud over the title of the plaintiff. According to the learned Counsel defence taken by the defendants that although Alvara was in the name of Bhiva, the same was meant for all five brothers is neither sustainable in law nor on facts. According to learned Counsel the trial Court had not appreciated the evidence led by parties in correct perspective but the lower Appellate Court has correctly appreciated the evidence, oral and documentary led by the parties and has come to the right conclusion that the title and possession in respect of the suit property was with the plaintiff. According to learned Counsel defendants at no point of time challenged the title of the plaintiff based on Alvara and as such there was no question of seeking declaration of title by the plaintiff. According to the learned Counsel the suit filed by the plaintiff was based on possessory title and as such the lower Appellate Court was justified in granting injunction in favour of the plaintiff. According to learned Counsel since the suit is for permanent injunction the State Government is not a necessary party more particularly having regard to the fact that at no point of time Government had claimed any right in respect of the suit property. According to learned Counsel the defence taken by the defendant no.1 that he was tenant of his own brothers in respect of cashew plantation is highly unsustainable both 15 in law and on facts and in any case the same has not been established by defendant no.1. According to learned counsel although the grant was provisional in terms of Article 36 the same is heritable and mere fact that no formal document was executed with the Government for a permanent grant, the same is not fatal to the case of the plaintiff. According to learned Counsel there is no provision for resumption of the land and the plaintiff has title in respect of suit property and as such lower Appellate Court was perfectly justified in holding that the plaintiff had title and possession in respect of the suit property. According to learned Counsel so called admission in the documents dated 16.10.1985 has been explained by plaintiff and as such the lower Appellate Court has rightly not used the said document against the plaintiff. According to learned Counsel jurisdiction of the first Appellate Court is not restricted and the first Appellate Court is entitled to re-appreciate the entire evidence and come to the finding based on evidence led by the parties. Learned Counsel further submitted that since name of the plaintiff appears in form I and XIV there is presumption that he is in possession of the suit property and as such the lower Appellate Court was right in reversing the decree passed by the trial Court and dismissing the suit filed by the plaintiff. Learned Counsel further submitted that no interference is warranted with 16 the decree passed by the lower Appellate Court. In support of his submission Mr. S. D. Lotlikar, relied upon the following Judgments:- i. Goswami Shri Mahalaxmi Vahuji Vs. Ranchhoddas Kalias and others, AIR 1970 SC 2025 ii. Seth Ramdayal Jat Vs. Laxmi Prasad, (2009) 11 SCC 545 iii. Udham Singh Vs. Ram Singh, (2007) 15 SCC 529. 15. I have carefully considered the rival submissions, perused the record and the judgments relied upon. 16. In so far as the submission made by Mr. Lotlikar that substantial questions of law formulated do not arise in the present Second Appeal is concerned, I do not find any merit in as much as both the appeals were admitted after hearing learned counsel for the parties and as such at this stage I do not find any justification to hold that the substantial questions of law framed do not arise in the appeals. 17. The next question which arises for consideration is whether the suit ought to have been dismissed on the ground that no declaration in the suit was sought by the plaintiff. 17 18. In the case of Anatula Suhakar (supra), the Apex Court has held that where a plaintiff is in lawful and peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for injunction simpliciter will lie since person in possession has right to protect his possession against any person who does not prove a better title. The Apex Court further held that where plaintiff is in possession, but his title to the property is in dispute, or under a cloud or where the defendant asserts title thereto and there is also a threat of dispossession from defendant the plaintiff will have to sue for declaration of title and the consequential relief of injunction, where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. The Apex Court further held that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, is made out or shown. The Apex Court further held that where the title of the plaintiff is not disputed but he is not in possession, his remedy is to file suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter without claiming relief of possession. 18 19. A careful perusal of the plaint filed in Regular Civil Suit No.1/1986 discloses that plaintiff had sought permanent injunction against the defendants on the ground that he has been in possession of the suit property and the defendants were disturbing his possession. In my considered view the suit filed by the plaintiff is not based on title. Reference in the plaint to the grant in favour of the father of the plaintiff is only to show as to how the plaintiff came into the possession of the suit property. This being the position, in my view the suit filed by the plaintiff cannot be termed as a suit based on title. Therefore, I do not find any merit in the submission of Mr. Dessai that in the absence of prayer for declaration the suit filed by the plaintiff was not maintainable. Similarly the contention of Mr. Dessai that the State Government is necessary party to the suit also has no merit for two reasons. Firstly the suit is simpliciter for injunction filed by the plaintiff who claimed that he was in possession of the suit property, pursuant to the grant by Government in favour of his father Bhiva and as such there was no question of joining State of Goa as party in the suit. Secondly no such ground has been raised in the written statement filed by the defendants and as such the defendants cannot be permitted to raise this plea for the first time in Second appeal. 19 20. Since the suit is for simpliciter for permanent injunction based on possession, I do not deem it necessary to deal in detail the submissions made by learned Senior Counsel for the parties on the aspect of title to the suit property. Since the suit filed is simpliciter for permanent injunction, the main question which arises for consideration is whether the plaintiff was in possession of the suit property on the date of passing of the decree so as to justify the grant of relief of permanent injunction in his favour. 21. The trial Court upon appreciation of the evidence led by the parties held that plaintiff had failed to prove that he was in possession of the suit property. To prove the possession of the suit property plaintiff examined himself and his brother in law Sudan Kalangutkar. The plaintiff Tukaram in his examination in chief stated that the suit property consisted of cashew trees and other miscellaneous trees and a part of the suit property consisted of paddy portion. He claimed that he was in possession of the suit property but thereafter he stated as under “ I cultivated the paddy field in the year 1986 but in the following year defendants cultivated the suit paddy field and also harvested the same. In the third year neither the plaintiff nor the defendants cultivated the paddy 20 field. At present the paddy field is lying fallow. I did not cultivate the paddy field although there is an order of the Court because defendants are not allowing me to enter the suit paddy field.” In his further examination in chief the plaintiff stated as under “prior to institution of the suit I was enjoying the cashew trees however, after the suit defendant no.1 is enjoying the same.” 22. Mr. Sudan Kalangutkar, PW2 deposed that he knew the suit property consisting of cashew trees and paddy field. In between he claim that he