IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 104 OF 2008 ARNALDO CRASTO AND ANR., ... Appellants Versus LEONCIO ANTONIO DA COSTA ... Respondent Mr. S. G. Dessai, Senior Advocate with Mr. V. Parsekar, Advocate for the Appellants. Mr. C. A. Coutinho, Advocate for the Respondent. Coram:- B. P. DHARMADHIKARI, J. Date:- 16th July, 2009 P.C. The matter was heard yesterday for sometime and was adjourned for today. Basically, to find out whether two documents produced as certificates, issued by Village Panchayat and dated 16.08.2001 and 21.03.2002, are public documents within the meaning of Section 74 of the Indian Evidence Act. 2. Today, the appellants have raised following five questions as substantial questions for consideration before this Court : 1) Whether settled possession can be protected without obtaining any declaration of title ? 2) Whether recourse to presumption of revenue records in present matter is perverse ? 3) Whether finding of lower Appellate Court that some evidence of defendant is without pleadings has resulted in any prejudice to defendant ? 4) Whether two certificates dated 16.08.2001 and 21.03.2002 issued by Sarpanch are public documents within Section 74 of Evidence Act and no proof of truth of its contents was required ? 5) Whether lower Appellate Court did not discharge its obligation as laid down in (2001)(3) S.C.C. 179 (Santosh Hazari vs. Purushottam Tiwari ? 3. The learned Senior Advocate has contended that lower Appellate Court has acted under erroneous presumption that a possession simplicitor without proof of any title can also be protected in law. He points out that this contention is without prejudice to appellants-defendants' stand that appellants-defendants today are in possession of suit properties. Reliance is placed upon Division Bench Judgment of this Court reported at 1987(3)Bom.C.R. 258 (Bhagwanrao v. Ganpatrao) and Judgment of learned Single Bench, reported at 1998 G.L.T. 382 (Vidhyadhar Devba Korde & Ors. vs. Anandi Raghu Yeso Satarkar & Ors). It is also highlighted that learned Trial Court has, in fact, recorded a finding of possession in favour of the appellants-defendants. Additionally, it is contended that because of presumption prescribed under Section 105 of Goa Revenue Code, the possessionary right has been worked out by lower Appellate Court. The finding of that Court that certain evidence adduced by defendants is without pleadings is assailed by pointing out paragraph 17(a) of the written statement to show that the said evidence is duly supported by pleadings. The Judgment of Hon'ble Apex Court reported at (2001)(3) S.C.C. 179 (Santosh Hazari v. Purshottam Tiwari), is relied upon to argue that lower Appellate Court has to come into close quarters of the consideration by Trial Court and as in what present circumstances, the lower Appellate Court has not done that, the exercise of appellate jurisdiction by it is vitiated. Learned Senior Advocate points out that this is moreso because evidence though supported by pleadings has not been looked into under the erroneous presumption that there are no pleadings. Lastly, provisions of Section 74 of Indian Evidence Act particularly sub-section (1) Clause (iii) is pressed into service to show that two certificates issued by Village Panchayat ought to have been treated as public document, and once the same were exhibited, the insistence upon proof of their contents is uncalled for. 4. Advocate Shri Coutinho for respondent-plaintiff has contented that lower Appellate Court has, after observing that evidence tendered is not supported by pleadings, not excluded any evidence on record. He states that material question is about the location of suit properties over which plaintiff has claimed possession. According to him, old records are not very relevant because of the change in the delimitation of wards and Villages and he states that the appellants-defendants are trying to compare the position prevailing today with pre-liberation documents to create confusion. He points out that to show the exact location of the suit properties, an expert in the shape of Dw.5 was examined and two certificates issued by Village Panchayat were produced on record. 5. With the assistance of both learned Advocates, I have perused the impugned Judgment, the written statement and also the Judgment cited. It is apparent that the suit as filed by respondent-plaintiff was simplicitor for injunction on the basis of possession and the Trial Court dismissed that suit after holding that plaintiff was not in possession and decided in favour of the defendants that the defendants have got title and are in possession of those properties. Plaintiff, then approached lower Appellate Court. The lower Appellate Court found that suit was only for relief of possession and no relief of declaration of title was claimed. It, therefore, found that discretion of title on plaintiff to that extent, as undertaken by trial Court, was not warranted. It then proceeded to consider the issue of possession and in that light, while appreciating evidence and particularly question of placement of properties, it has appreciated the Revenue Records to note that plaintiff was mentioned as person in possession. Thus, it found that to disprove those records and to establish his possession, the appellants-defendants examined expert, Dw.5, but then, said expert did not refer to Land Registration document described under no. 15966 to establish as to how the document, used by him relate to suit properties. The other two documents filed by appellants-defendants to establish said fact has also been looked into and it has been found that contents of those two documents are not established. The said two documents are issued by the Sarpanch for Village Panchayat under his signature and are not certified copies. 6. According to learned Senior Advocate, the documents reveal the position as is appearing in the records of Village Panchayat about the placement of properties. It is obvious that the documents are not certified copies and have not been issued by Sarpanch in discharge of any statutory function cast upon him by Goa Panchayat Raj Act and the lower Appellate Court, therefore, has rightly refused to accept those documents as proved. The act of issuing those certificates seems to be a private act undertaken by Sarpanch. If the appellants-defendants wanted to rely on said document, the original records on the basis of which those documents were issued, ought to have been summoned or then the contentions thereof ought to have been proved to be true and correct. Proof of truth of its contents was also essential. Such evidence is conspicuously missing. The lower Appellate Court, therefore, did not act upon these documents or the report of the expert, Dw.5. The Trial Court has accepted said evidence and these documents. This appreciation of evidence/document by lower Appellate Court cannot be labelled either as erroneous or perverse. 7. In this view of the matter, the lower Appellate Court has thus fallen back upon Section 105 of Goa Land Revenue Code and recorded a finding of possession in favour of the plaintiff. The finding again cannot be labelled as erroneous or perverse. Though lower Appellate Court observed that evidence of defendant is without pleadings, it has appreciated it and no material or evidence rejected by it has been pointed out. 8. Once the settled possession of the plaintiff is established, it is clear that person in possession is entitled to protect his decision except against true owner and he can be dispossessed by following the procedure as prescribed by law. The said position as settled by Hon'ble Apex Court in its Judgment reported at (1989)4 S.C.C. 131 (Krishna Ram Mahale v. Mrs. Shobha Venkat Rao), is clear. Learned Counsel for respondent has pointed out that same view has been reiterated in 2004(3) Bom.C.R. 788 (Rame Gowda vs. M. Varadappa Naidu)by Hon'ble Apex Court. In view of these Judgments, it is apparent that the contentions that plaintiff could not have maintained a suit simplicitor for protection of his possession, is misconceived. It is not possible to hold that appellate Court avoided to consider any part of Judgment or any finding of Trial Court. 9. I, therefore, do not find any substantial question of law arising in the Second Appeal. Second Appeal is dismissed. Consequently, CA no. 281/08 is also dismissed. No costs. B. P. DHARMADHIKARI, J. arp/*