-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 67 of 2010 Shri Vithal Pandurang Bakre, of major age, resident of Vithalpur, Sanquelim, Goa. ...... Appellant. V e r s u s (1) Shri Krishna Bablo Naik (since deceased) through his legal heirs (1) (a) Shri Sadanand Krishna Naik (1) (b) Smt. Suvarna Sadanand Naik (1) (c) Shri Ashok Krishna Naik (1) (d) Smt. Hemal Ashok Naik (1) (e) Shri Ajit Krishna Naik (1) (f) Smt. Ajit Naik (1) (g) Shri Prasad Krishna Naik All are of major age, residents of Tulshimala, Poryem, Sattari, Goa. (1) (h) Shri Ghanashyam Morajkar (1) (i) Smt. Sandhya Ghanashayam Morajkar both are of major age, residents of Morjem,Pernem,Goa. (1) (j) Shri Digambar Raikar (1) (k) Smt. Pratima alias Dipika Digambar Raikar both are of major age, residents of House No.12 Gaundalim, Tiswadi. (1) (l) Smt. Prasad Krishna Naik (2) Smt. Mirabai Krishna Naik, of major age, residing at Tulshimala, Sanquelim-Goa. ....... Respondents Mr. A. Naik, Advocate for the Appellant. CORAM: F. M. REIS, J. DATE : 6 th August, 2010. -2- ORAL JUDGMENT The above Appeal challenges the Judgment passed in Regular Civil Appeal no. 95/2003 by learned District Judge, North Goa, at Panaji, dated 12.02.2008, whereby the Appeal filed by the Appellants challenging the Judgment and Decree dated 28.04.2003 passed by learned Civil Judge, Junior Division, Valpoi, in Regular Civil Suit no. 79/90, came to be dismissed. 2. The Appellants filed the suit on the ground that there exists a property known as 'Guiri Panto' described in Land Registration Office under no. 1214 at page 440 of Book B-12 old and that the names of the late father of the Respondent nos. 1 and 3 are wrongly entered in the tenant's column. By taking advantage of such wrong entry, the Respondents interfered with the suit property and in the month of May, 1988, without any authorisation or consent, constructed a pucca shed with laterite stones pillars in the property bearing survey no. 74/1 of Village Parye occupying an area of 150 square metres without obtaining any construction licence from the local Panchayat. On being questioned and called upon to demolish the said suit shed, the Respondents failed to accede to such requests and thereafter a legal notice was served on the Respondents dated 12.12.89 to demolish the said shed. As the Respondents failed to comply with the said notice, the Appellants filed the suit claiming for a Decree and Order to demolish and for restoration of the suit shed in the property surveyed under survey no. 74/1 and also to pay measne profits to the tune of Rs.500/- per year. -3- 3. The Respondents filed their written statements disputing the claim of the Appellants. It is their contention that the property is in their possession and that their names have been rightly shown in the Survey Records. It is further their case that they have done no construction in the property surveyed under Survey no. 74/1 as they were having their residential house bearing no. 50 and a cow shed bearing no. 506/1. They contended that the said shed is an old construction used for storing grains and other articles and, consequently prayed that the suit be dismissed. 4. After framing of issues and recording of evidence, the learned Civil Judge, Junior Division, at Sattari, by Judgment and Decree dated 28th April, 2003, dismissed the suit filed by the Appellants. While disposing of the said suit, the learned Judge after appreciating the evidence on record came to the conclusion that the Appellant had failed to establish that he was the owner of the property bearing survey no. 74/1 and that the Respondent in May 1988 encroached in the suit property and constructed a shed admeasuring 150 square metres. While considering the said issues, the learned Judge found that the Appellant had not produced any documentary evidence to demonstrate that he had objected to such illegal construction in May, 1988. The learned Judge has also come to the conclusion that the Appellant had failed to establish that he was in possession of the said property. The learned Judge further held that the Respondents had produced the house tax receipts, the Order passed by the Aval Karkoon and the letter issued by Zonal Agricultural Office dated 22.10.1985, regarding the approval of the -4- construction of the stone wall in respect of the suit property. The learned Judge also found that the licence issued in favour of the Respondent discloses that the Respondent was in possession of the suit property. The learned Judge found that the non-showing of the structure in the Survey Records is not at all material as such type of structures were not necessarily depicted in the Survey Records as was being done with regard to other Survey numbers. The learned Judge also found that no description has been given of the suit structure by the Appellant nor any evidence has been brought on record to show the number of pillars erected by the Respondents. 5. The learned District Judge while disposing off the said Regular Civil Appeal, has come to the conclusion that Pw.1 had admitted that the huts and cow shed are not recorded in the Form I and XIV in survey no. 74/1 nor they are shown in the Survey Plan or Survey Records under exhibit Pw.1/B. He also admitted that he has not filed any complaint before the local Panchayat. The learned Judge further held that the Appellant had failed to adduce any documentary evidence that they had objected to the illegal construction alleged to have been carried out by the Respondent. On the basis of appreciation of evidence on record, the learned District Judge came to the conclusion that in view of the evidence of Pw.1, the documents produced by him along with the evidence of Pw.2 did not help the Appellant to convince the Court that in May, 1988, the Appellant had constructed a shed in the survey no. 74/1. The learned District Judge further held on the evidence adduced by the Appellant that the suit shed appears to have been in existence -5- as such, the Appeal came to be dismissed. 6. The learned Counsel appearing for the Appellant did not assail the impugned Judgment on the ground that any of the findings of the Courts below that the Appellant had failed to establish about the construction of the suit structure in the year 1988 having not been established. In any event, such concurrent findings of fact cannot be interfered with by this Court. The Courts below, on the appreciation of evidence on record, came to the conclusion that the Appellant has failed to establish that the Appellant was entitled for the reliefs sought in the suit. As such, the said findings of the Courts below did not call for interference as no perversity therein has been shown by the learned Counsel appearing for the Appellant. The learned Counsel for the Appellant further submitted that as the Respondents are claiming to be tenants of the suit property, the question of putting up a structure in the suit property without the consent of the Appellant does not arise at all. He further submitted that under provisions of Section 33 of the Goa Daman and Diu Agricultural Tenancy Act, 1964, the tenant has to obtain consent of the landlord and upon failure of the landlord to give consent then, in that case, should obtain the consent from the Mamlatdar while constructing a shed or construction in the tenanted land. He further submitted that the Respondent has failed to establish any such consent to enable him to put up the suit construction. 7. On perusal of the plaint, I find that the Appellant has not pleaded -6- the said facts about non-obtaining of such consent to put up a structure in the suit property in terms of Section 33 of the said Agricultural Tenancy Act. There is no foundation in the pleading to take assistance of the provisions of Section 33 of the Tenancy Act. The learned Trial Judge has considered the said aspect and rightly rejected the said contention of the Appellants. On the contrary, it was the case of the Appellant that the Respondent was not a tenant of the suit property and, according to the Appellant, the suit property was in their possession. Having failed to establish the said allegations, it is not open for the Appellant to contend that even assuming that the Respondent was a tenant of the suit property, he had to obtain their consent for the purpose of putting up the suit shed. There is nothing on record to suggest that the suit structure is a farm house constructed by the Respondents. The Appellant has also not argued the said contention before the learned District Judge, in the Appeal filed by the Appellant. 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 14, thus : “14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question -7- should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 8. From the said Judgment of the Apex Court, it is evident that for a question of law to be involved in the case, there must be first a foundation of it laid in the pleadings and the question should emerge from the sustainable finding of fact arrived at by the Court of fact and it must be necessary to decide that question of law for a just and proper decision of the case. In the present case, I find that there is no such foundation which can emerge. The Appellant has disputed the claim of tenancy on the part of the Respondent. There is no evidence adduced by the Appellant that the Respondents have constructed a farm house. In any event, the Respondents are held to be in possession of the suit property lawfully by the Courts below. As such, the contention of the learned Counsel for the Appellant cannot be accepted. No substantial question of law arises in the present Appeal on that count. The learned Counsel for the Appellant has not pressed for any other substantial -8- question of law as arising in the present Appeal. 9. No interference is called for in the Judgments passed by the Courts below. The above Second Appeal stands dismissed. F. M. REIS, J. arp/*