Case: Sebastiao Luis Fernandes (Dead) Through Lrs. &amp; Others Vs. K.V.P. Shastri (Dead) Through Lrs. Others

The original plaintiff, Inacinha Fernandes filed Civil Suit No. 14091of 1948 on 1.1.1948 before the trial court for declaration that she is the lawful owner in possession of 1/3rd of the property bearing land registration No.16413 and consequential relief for cancellation of registration in favour of the defendants-respondents in respect of such 1/3rd share in the suit schedule property and to register the same in the name of the plaintiff. Presently the legal representatives of the original plaintiff are before us as appellants. It is the case of the plaintiff- appellants that suit schedule property is bearing land registration No.16413 and the claim of the plaintiff-appellants is that it belonged to three brothers namely, Francisco Fernandes (who was the father-in-law of the original plaintiff), Francisco Fernandes junior and Pedro Sebastiao Fernandes and they owned and possessed the same jointly and in equal shares. The defendant No. 2-Tereza is the daughter of Francisco Fernandes junior and the original plaintiff-Inacinha Fernandes is the wife of Luis Fernandes, the son of Francisco Fernandes, the first brother. It is their further case that on the death of Francisco Fernandes, he was survived by the husband of the original plaintiff. It is their case that on the death of said Francisco Fernandes, the 1/3rd share of the suit schedule property devolved upon Luis the late husband of the original plaintiff and it was accordingly enjoyed by the plaintiff. Further case of the plaintiff is that on account of a debt of Rs.198/- to one Naraina Panduronga Porobo, the property was attached and thereafter the liability was paid by way of subrogation of rights in favour of the father of the first defendant, K.V.P. Shastri who bought this property which was sold in public auction on 26th April, 1935 and thereafter granted aforementioned property in favour of the husband of Tereza, namely, Tomas Fernandes vide perpetual lease. It is the case of the plaintiff that the right of subrogation in favour of the father of the first defendant should have been granted by the defendant No.2-Tereza only in respect of 1/3rd share and not in relation to the entire property.3. The case of the plaintiff was sought to be contested by the defendant No.1 inter alia contending that the claim of the plaintiff is false and ownership and possession of the suit schedule property stands transferred in favour of the defendant No.1 with effect from 26.4.1935 and he had acquired right by way of prescription as it has been enjoyed for 10 years, pursuant to the registration of the suit schedule property in his name. The defendant No.2 also denied the case of the plaintiff and claimed to be in possession pursuant to conveyance thereof by the defendant No.1.4. On the basis of the pleadings of the parties issues were framed and the matter went for trial and both the parties adduced evidence. On appreciation of evidence on record the trial court decreed the suit vide its judgment dated 29.4.1978. The trial court decreed the suit holding it to be tenable and directed the defendants to acknowledge that the plaintiff along with her children is the lawful owner in possession of 1/3rd share of the suit schedule property and to release that 1/3rd share in favour of the plaintiff, by declaring to be null and void the inscription done in the Land Registration Office in respect to the said property which is described under No. 16413 in so far as it covered the 1/3rd part of the plaintiff. Further, the defendants were directed to pay damages caused to the original plaintiff by depriving her of the income corresponding to her 1/3rd portion. The trial court held that the alleged prescription does not operate because the defendant Shastri was never in the possession of the property, much less in good faith. It was also observed that it is proved from the proceedings by a fact otherwise admitted that the plaintiff has her residential house in the suit schedule property with a common wall with the house of the defendant-Tereza and this is one more important fact to corroborate the case of the plaintiff, for being relatives descending from the same common trunk having ancestral house.5. Being aggrieved by the said judgment and decree the defendants preferred Civil Appeal No. 237 of 1981 before the District Court at Margao and the same was disposed of by judgment dated 16.12.1985 by recording reasons. The first appellate court held that the evidence on record shows that neither the original plaintiff nor the original defendants were able to produce any documentary evidence to support their title to the suit schedule property, besides the claim made by them that the property was acquired from the common ancestors. Further, it observed that the learned trial judge rightly pointed out that the specific claim made by the plaintiff with regard to the common ownership to the suit schedule property and the houses was not specifically denied by the defendants being a fact that only defendant No.1 namely, Venctexa Govinda Porobo Shastri took a definite stand in this respect. It was thus held that the trial Judge was justified in holding that the common ownership of the suit schedule property had been admitted by the defendants in their written statement and that they could not prove how the suit schedule property in view of this fact this common ownership could subsequently belong exclusively to the daughters of one of the co-owners of the suit schedule property who were the heirs of one of the sons of the original title holder of the property. Further, the circumstances of Tereza and Conceicao having acquired their right through the creditor Shastri who purchased their property in a public auction after its attachment by the court from the heirs of one of the co-owners are certainly not binding on the respondents who were not parties in the said proceedings being also a fact that simply because the original plaintiff did not react either against the attachment or the auction, it cannot be said that this circumstance made her lose her right of the share acquired by her husband through his father who was one of the sons of the original owner of the suit schedule property. Besides, the evidence on record shows that the original plaintiff and her family were residing in the house situated in the suit schedule property even at the time of the filing of the suit and subsequently they shifted their residence after their ancestral house collapsed having built another house in a different property which had been acquired by the plaintiff. It was further held by the first appellate court that the trial Judge has correctly assessed the evidence on record while adjudicating the rights of the parties to the suit in favour of the plaintiff, and the judgment could not be said as having caused any grievance to the defendants-respondents and must be fully affirmed.6. Being aggrieved by the said judgment Second Appeal No. 30 of 1986 was filed by the defendants before the learned single Judge of the High Court by urging certain substantial questions of law as required under Section 100 of the Civil Procedure Code, 1908 (for shorte High Court admitted the appeal by framing the following substantial questions of lawThe plaintiffs not having produced any document of title, could the courts below decree the suit?2) The decision is contrary to the pleadings. The courts below committed breach of procedure in holding that there was admission of original plaintiff, in the pleading when there is no such admission.3) The courts below failed to consider that the defendants had pleaded prescription and that Article 526(2) was fully attracted.After hearing the learned counsel for the parties and the translated pleadings from Portuguese language to English in the plaint with regard to the claim of ownership of the plaintiff and the pleadings of defendants, the learned single Judge of the High Court has examined the rival legal contentions urged with reference to the substantial questions of law framed by it at the time of admission of the second appeal and placed reliance upon the judgment of this Court in the case of Hira Lal and Anr. v. Gajjan and Ors. [(1990) 3 SCC 285]  wherein this Court laid down the statement of law regarding the substantial questions of law in the second appeal under Section 100 of the CPC. The relevant portion of paragraph 8 from the aforesaid judgment reads thusin dealing with a question of fact that the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure. When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independentreference to the statement of law laid down by this Court in the aforesaid case, the learned single Judge of the High Court proceeded to answer the substantial questions of law Nos. 1 and 2 together by recording its reasons in paragraphs 7, 8 and 9 of the impugned judgment. In the second appeal, the High Court on the basis of the statement of law laid down by this Court in Hira Lal case (supra) examined the correctness of the concurrent findings of fact recorded by the first appellate court to answer the substantial questions of law referred to supra. The High Court has re- appreciated the evidence in the backdrop of the statement of law laid down by this Court after noticing the fact that the courts below ignored the pleadings of the defendants-respondents and the weight of their evidence and allowed its judgments to be influenced by inconsequential matters, therefore, the High Court was of the view that it is justified in re-appreciating the evidence and coming to its independent decision and answered the substantial questions of law Nos. 1 and 2 in favour of the defendants holding the findings of the courts below on the relevant contentious issues as perverse. In this regard, at paragraph 7, the High Court considered the evidence on record and non-appreciation of the same by the courts below, particularly, the finding recorded by the first appellate court that the plaintiff-appellants have established their title in respect of the suit schedule property, that the defendant Shastri had not denied the claim of ownership of the plaintiff-appellants and further that there is no specific denial of the ownership by Tereza, holding that the lower courts have erroneously recorded findings on these aspects. The High Court has further proceeded to hold that the fact remains that Tereza is not claiming right independently herself but her claim to the property is through said Shastri. The case of the defendants before the trial court is that the said property was purchased by Shastri in a court auction and subsequently conveyed to Tereza. Therefore, the case of the defendants was accepted by the High Court stating that the pleading of K.V.P. Shastri in relation to the denial of ownership of the plaintiff is more relevant and material rather than that of Tereza. The High Court further made observation that denial of Tereza without there being any such denial by Shastri would have been of no consequence because consequent to the auction to the property through court, Tereza is claiming right to the property only through Shastri and not independently. Therefore, the High Court has arrived at valid finding on this aspect of the matter that irrespective of the denial of such claim of Tereza, had Shastri accepted the claim of the plaintiff then such denial of Tereza would have been of no consequence in the facts and circumstances of the case. The High Court has arrived at a conclusion on the basis of pleadings that undisputedly Shastri has denied the claim of the ownership of the plaintiff-appellants in respect of the suit schedule property, therefore, the findings of both the courts below that there is no denial of thecase regarding the ownership right of the suit schedule property is not factually correct and the said finding is held to be totally contrary to the record and the same is arbitrary and perverse and cannot be sustained. The High Court has also come to the conclusion on the basis of the pleadings on record that the claim of the plaintiff-appellants to the suit schedule property is clearly in dispute and plaintiff-appellants have not proved their title to the suit schedule property and further rightly came to the conclusion that the courts below have not properly analyzed the material evidence on record though plaintiff-appellants have failed to produce documentary evidence in so far as the title of their ownership of the suit schedule property is concerned and further the finding recorded by the High Court in its judgment at para 8 namely, to the effect that the challenge of the plaintiff with regard to the acquisition of his right to the suit schedule property by Shastri and Tereza is essentially and solely based on the basis of the claim of ownership of the plaintiff to the suit schedule property.

Reasoning: we are satisfied that the ratio laid down by this Court in Hiracase (supra) and other decisions referred to supra upon whichcounsel placed reliance in justification of the findings and reasons recorded by the High Court in the impugned judgment are applicable to the fact situation of this case as the courts below have erred in assuming certain facts which are not in existence to come to the erroneous conclusion in the absence of title document in justification of the claim of the plaintiff in respect of the suit schedule property and ignored the pleadings of the defendants though they have specifically denied the ownership right claimed by the plaintiff in respect of the suit schedule property and on wrong assumption of the facts which are pleaded on the contentious issues, they have been answered in favour of the plaintiff, therefore, the High Court has rightly exercised its appellate jurisdiction by framing the correct substantial questions of law with reference to the legal position and applied the same to the fact situation of case on hand.23. In our considered view, the substantial questions of law framed by the High Court at the time of the admission of the second appeal is based on law laid down by this Court in the above referred case of Hira Lal which view is supported by other cases referred to supra. Therefore, answer to the said substantial questions of law by the High Court by recording cogent and valid reasons to annul the concurrent findings that the non-appreciation of the pleadings and evidence on record by the courts below rendered their finding on the contentious issues/points as perverse and arbitrary, and therefore the same have been rightly set aside by answering the substantial questions of law in favour of the defendants.