1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.72 OF 2003 Smt. Conceicao Carlos (since deceased, through LR's) Resident of Khursavado, Piedade, Ilhas, Goa. 1(a) Mrs. Fausta Conceicao Carlos, daughter, married, age 48 years, housewife. 1(b) Mr. Bilal Fares Rashid, age 62 years, retired, both residing at East Raffa, Bahrain. 1(c) Mrs. Flavia Conceicao Carlos, daughter, widow of late Zeffeiro Dias e Sapeco (no issues), r/o. St. Cruz, Bondir, Ilhas, Goa. 1(d) Mr. Eldon Simon Carlos, son, age 42 years, occupation service. 1(e) Mrs. Blossom Martha Pires, daughter-in-law, age 36 years, both residents of Piedade, Diwar, Ilhas, Goa. 1(f) Mrs. Gladys Angelica Carlos, daughter, married, age 38 years, occupation service. 1(g) Mr. Newton Anthony Fernandes, son-in-law, both residents of Corlim, Ilhas, Goa. 2 1(h) Miss Sharmila Magdalena Carlos, daughter, unmarried, age 35 years, occupation service. 1(i) Sapphira Priscilla Carlos, daughter, unmarried, teacher, both residents of House No.175, Piedade, Diwar, Ilhas, Goa. …. Appellants V/s 1. Mr. Jose Vincente Bismark Rodrigues, 2. Mrs. Grace Joana Rodrigues, 3. Mr. Joaquim Inacio Rodrigues, 4. Mrs. Eugenia Rodrigues, All residents of Bombay, Represented herein by their Attorney, Mr. Ornalus Cruz, Nobibairro, Fonduvem, Ribander, Goa. …. Respondents Shri S.D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the Appellants. Shri M.B. Da Costa, Senior Advocate with Shri J.A. Lobo, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 13th SEPTEMBER, 2011 JUDGMENT : Heard Shri S.D. Lotlikar, the learned Senior Counsel appearing for the appellant and Shri M.B. Da Costa, the learned Senior Counsel appearing for the respondents. 2. The above second appeal was admitted on the following 3 substantial questions law: C) Whether in the face of the fact that the Respondents were seeking a declaration of ownership in respect of the suit property, children of the Appellant were necessary parties to the Suit? D) Whether the Appellate Court could have reversed the judgment and decree of the trial Court and decreed the Suit of the Respondents, without reversing the finding of the trial Court that the Respondents had to establish that they were ever in possession of the suit property or that they were forcibly dispossessed in the year 1986 as pleaded by them? E) Whether the lower appellate Court could have recorded a finding that it was not possible to come to the conclusion as to whether the Appellant was in possession of the suit property for more than 40 years, without dealing with the entire evidence including oral evidence led by the parties and whether the said evidence if considered would have resulted in a different finding? F) Whether in the face of the fact that the Appellant was in possession of the suit property under a claim, that she was the owner thereof, her possession could be adverse to the respondents and whether the Respondents could have sought recovery of possession, without establishing that their possession of the suit property dated back within 12 years of the institution of the Suit. 3. By an application filed before this Court dated 30/08/2010, the appellant inter alia prayed that some additional substantial questions of law arise in the present appeal. The respondents were 4 put to notice that in case any such substantial questions of law arise in the present appeal, such questions would be framed at the time of hearing of the appeal. Accordingly, the above appeal was heard on merits. 4. Having heard the learned Senior Counsel appearing for the appellant and learned Senior Counsel appearing for the respondents and on perusing the judgment passed by the Courts below as well as the pleadings on record, I find it appropriate that an additional substantial question of law arises in the present appeal, which reads as follows: AA) Whether, the conclusion reached by the 1st Appellate Court, to the effect that the property purchased by the Appellant's predecessor-in-title and the one purchased by the Respondents' predecessor-in-title was one and the same is perverse, in as much as such was not the case pleaded by the Respondents in the plaint or substantiated or sought to be proved in evidence, as the same were described under different registration numbers: one being in respect of an urban property (Predio Urbano); and the other being a coconut grove (Palmar)? Accordingly, the matter was heard on all the above substantial questions of law. 5 5. Shri S.D. Lotlikar, the learned Senior Counsel appearing for the appellant has assailed the impugned judgment passed by the lower Appellate Court on the ground that the learned Judge has given a categorical finding to the effect that the property registered in the name of the respondents under no.499 of Book 7 old and the property of the appellants registered under no.10 of Book B one are one and the same. Though it was their case that these two properties are different properties. The learned Senior Counsel has further taken me through the reliefs sought by the respondents in the plaint and pointed out that the second prayer is for a declaration that the said two properties are two different properties. The learned Senior Counsel further pointed out that the claim of the respondents as well as the appellant is to the property surveyed under no.33/10 situated at Chimbel village wherein a well is existing. The learned Senior Counsel further submitted that the suit property is in possession of the appellant and, as such, on the basis of the evidence on record, the appellant has established that she has a right in the suit property. The learned Senior Counsel further took me through the judgment of the learned Trial Judge and pointed out that while deciding issue no.1A, the learned Trial Judge has minutely examined the evidence on record and has come 6 to the conclusion that the property as claimed by the respondents with specific boundaries has not been identified as corresponding to the property surveyed under 33/10. The learned Senior Counsel has further pointed out that the lower Appellate Court has not scrutinized the evidence on record to come to the conclusion that such findings are erroneous, but on the contrary the lower Appellate Court has wrongly come to the conclusion that the two properties having two Land Registration numbers are one and the same properties. The learned Counsel further submitted that the Lower Appellate Court as such drew an erroneous inference that the property registered in the Land Registration Office is surveyed under No. 33/10. The learned Senior Counsel further pointed out that such inference drawn by the lower Appellate Court is unknown to law and the same is perverse on the face of the pleadings of the respondents themselves. The learned Senior Counsel further took me through the Land Registration Document produced on record and pointed out that the property described in the name of the appellant is prior in point of time than the property as claimed to be described in the name of the respondents. The learned Senior Counsel, as such, pointed out that the impugned judgment passed by the lower Appellate Court cannot be sustained and deserves to 7 be quashed and set aside. 6. On the other hand, Shri M.B. Da Costa, the learned Senior Counsel appearing for the respondents has supported the impugned judgment and pointed out that on the basis of the pleadings on record, the issue as far as identity of the suit property did not arise at all as according to him there was no denial by the appellant in her written statement to the effect that the property registered in the name of the respondents corresponds to the property surveyed under no.33/10. The learned Senior Counsel further pointed out that the transfer in the name of the appellant came to lapse as disclosed in the records of the Land Registration Office and, as such, the question of claiming any right to the suit property by the appellants would not arise. The learned Senior Counsel further pointed out that as far as the identity of the properties is concerned, the issue framed by the learned Judge did not arise at all on the basis of the pleadings of the parties and, as such, the question of going into this aspect would not arise. The learned Senior Counsel further submitted that before the learned trial Court in the course of the evidence of PW1 a cadastral survey plan was produced by the respondents which was marked 'X' for identification as it was a 8 xerox copy and the original was not available at the relevant time. The learned Senior Counsel further pointed out that as per his instructions the original records from the cadastral survey office are not available at the moment. The learned Senior Counsel, as such, pointed out that the said plan would conclusively establish that the property claimed by the respondents corresponds to the property surveyed under no.33/10. The learned Senior Counsel further submitted that the question of law framed by this Court would not arise in the present appeal as according to him all such questions are in the nature of appreciation of evidence which cannot be done by this Court in Second Appeal under Section 100 of the Civil Procedure Code. The learned Senior Counsel, as such, pointed out that the substantial question of law has to be answered against the appellant and the appeal deserves to be rejected. 7. Having heard the learned Counsel and on perusal of the record dealing with the additional substantial question of law framed as 'AA', I find that in the pleadings of the respondents, there was no averment made by the respondents to the effect that the property described under no. 499 of Book 7 old claimed by the respondents was one and the same property as described in the 9 Land Registration Officer under No.10 Book B old as claimed by the appellants. Apart from that on perusal of the pleadings of the respondents prayer 'b' thereof is as under: (b) Declaring that the suit property is different from the property claimed by the defendants. 8. Even on perusal of the evidence on record there is nothing to suggest that it was the case of the respondents that the property described in the Land Registration Office under No.499 Book 7 old and the property described under no.10 of page 330 of Book B old was one and the same property. Apart from that on perusal of the boundaries as described in the Land Registration Document pertaining to both the said Land registration numbers the boundaries substantially differ towards the northern and the western side. As such, the lower Appellate Court was not justified to come to the conclusion that both the said properties as registered by the said two numbers are one and the same property. As such, the findings of the learned Judge to that effect cannot be sustained and is contrary to the evidence on record as well as misreading the documentary evidence produced by both the parties, and deserve to be quashed and set aside. Once such findings are set aside the question as to whether the property as claimed by the respondents 10 corresponds to the property surveyed under no.33/10 would have to be ascertained on the basis of the other material on record. The learned lower Appellate Court was not justified to draw such inference merely because the property claimed by the appellants and respondents and as described in their respective registration numbers are same properties which finding is not correct. The learned Senior Counsel Shri Lotlikar appearing for the appellant is justified to contend that the lower Appellate Court has misconstrued the documents on record to come to such conclusion and, as such, said substantial question of law is answered in favour of the appellant. 9. Considering the material on record, I find that the lower Appellate Court has not scrutinized the evidence on record to give any categorical finding that the property claimed by the respondents and registered under no. 499 corresponds to the property surveyed under no.33/10. The learned District Judge has not scrutinized the evidence nor has given any reasons as to why the findings of the learned Trial Judge are erroneous. As such, it would be appropriate in the interest of justice that the lower Appellate Court should scrutinize the evidence on record and 11 decide the appeal preferred by the respondents afresh in accordance with law. 10. At this stage, Shri M.B. Da Costa, the learned Senior Counsel has pointed out that a document was produced by the respondents which is marked 'X' for identification as the original copy was not available at the relevant time. The learned Counsel, as such, submitted that he should be allowed to produce the said documents in evidence. Having heard learned Senior Counsel Shri Lotlikar on that aspect, I find it appropriate that liberty should be given to the respondents to file an appropriate application before the lower Appellate Court to lead secondary evidence if they are so entitled and any such application shall be dealt by the lower Appellate Court after hearing the appellants in accordance with law. The learned Senior Counsel has further submitted that he has perused the records sent to this Court and according to him the said document marked as 'X' for identification is not traceable. The lower Appellate Court shall consider the said aspect and deal with the matter in accordance with law. 11. Shri Lotlikar, the learned Senior Counsel has not 12 pressed any decision on the remaining substantial questions of law framed by this Court while admitting the above Second Appeal at this stage. All contentions raised by the parties on merits with that regard are left open. 12. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment dated 28.02.2003 passed by the lower Appellate Court is quashed and set aside. (iii) Regular Civil Appeal No.32/96 is restored to the file of the learned District Judge. (iv) The learned District Judge is directed to decide the appeal afresh after hearing the parties in the light of the observation made herein above in accordance with law. (v) All the contentions of the parties on merits are left open. (v) Parties are directed to appear before the District Judge on 21/11/2011 at 10.00 a.m. F.M. REIS, J. NH/-