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PETITIONER: KASHINATH S BANDEKAR & ORS.

       Vs.

RESPONDENT: ATMARAM VASSUDEVA NAIQUE & ORS.

DATE OF JUDGMENT:       14/03/1997

BENCH: A.S. ANAND, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T DR. ANAND. J.      This appeal  by special  leave is  directed against the judgment and  order of  the High  Court of Judicature Bombay (Panaji Bench, Goa) dated 5th of July 1990.      The case has a checquered history but we shall refer to the facts to the extent relevant for the purpose of disposal of this  appeal. On  23rd  July  1961  the  predecessors  of respondents filed  a Civil  suit in the Court of Civil Judge (Senior Division,  Bicholin) for  declaration that  they are the owners  and possessors  of the disputed properties. That suit was  tried under  the portuguese  Civil procedure Code. After going  through the  pleadings and  the  documents  and especificacao was  drawn up  by the  trial court  besides  a questionario, (issues  in the case) . The especificacao  and the questionario were drawn up under Articles 515 and 516 of the portuguese Civil procedure Code. Objections filed to the especificacao were decided on 10.3.62. Parties led evidence, both oral  and documentary  in support  of their  respective claims. Vide  judgment and  order dated  27.7.67, the  trial court dismissed the suit. The plaintiffs in the suit filed a first appeal against the judgment and order dated 27.7.67 in the  court  of  the  learned  Judicial  Commissioner.  After hearing the parties, the learned Judicial Commissioner found the trial  court had  not applied  its mind  to the issue of title as also to the effect of certain documents produced by the parties  which were  in the  nature of  agreements.  The learned Judicial  Commissioner appointed  Mr. Pinto Menezes, as Local  Commissioner who  was to  inspect the  suit  land, examine the  documents on  the record  but without recording any further  evidence to  submit a report, after considering the evidence  already on  the record, regarding the issue of ownership of  the disputed  immovable  property.  The  Local Commissioner submitted  hes report  on 8.11.69, holding that at the  plaintiffs were the owners of the immovable property known as  " Bismachotembo".  It was  also found by the Local Commissioner that  immovable property  called disputed  land which lay  between the  aforesaid two  immovable properties, belongs to  the plaintiffs  in the  suit, who  therefore had title to  that property.  The learned  Judicial Commissioner

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perused the  report of the Local Commissioner and found that he had not given any report on the question of possession of the property  in  dispute.  Vide  order  dated  9.2.70,  the learned Judicial Commissioner remanded the case to the court of learned  Civil Judge  (Senior Division) to adjudicate "on the issue off possession and prescription" as claimed by the defendants on the basis of the evidence already available on the record  after taking  note of  the report  of the  Local Commissioner. The  learned Civil  Judge  (Senior  Division), after hearing  learned counsel  for the parties on the issue of possession and prescription, Vide his order dated 4.8.71, came  to   the  conclusion   that  the  plaintiffs  were  in possession   of the disputed piece of immovable property and that the  defendants had  failed to prove that they had been in possession  of the  disputed  land  by  prescription,  as alleged by  them. After  recording this finding, the learned Civil Judge forwarded the finding on the issue of possession and prescription  along with  the record  of the case to the court  of   the  learned   Judicial  Commissioner.   In  the meanwhile, the code of Civil procedure, as applicable to the rest of the courts in India, was also made applicable to the courts in  the territory  of Goa  with effect from, 15.6.66. The learned  Judicial Commissioner,  therefore, noticed that under the  Civil procedure  Code read  with the Civil Courts Act 1965,  the court  of the Judicial Commissioner no longer had jurisdiction  to entertain  and hear  an appeal from the judgment, order  or decree passed by the learned Civil Judge and that  such an appeal could lie only before the concerned District Judge.  The  learned  Judicial  Commissioner,  vide order dated 31.8.1972 forwarded the recorded of the  case to the District  Judge at  Panaji for  disposal of  the appeal. Both  the   original  plaintiff  as  well  as  the  original defendants  having   died  in  the  meanwhile,  their  legal representatives were  brought on the record to prosecute the appeal. The  learned District  Judge  at  panaji  heard  the appeal and  vide judgment and order dated 29.3.84, set aside the judgment  and decree  of Civil  Judge dated  27.7.67 and passed a decree in the suit in favour of the plaintiffs. The defendants in  that suit, challenged the judgment and decree dated 29.3.1984  passed by  the District  Judge,  through  a second appeal in the Panaji Bench of the High Court. (Second Appeal No.30 of 1984). After hearing learned counsel for the parties, a  learned single  Judge   of the  High Court found that the  First Appellate  Court had  failed  to  take  into consideration the  especificacao prepared by the trial court and vide  judgment dated  31.3.89 set aside the judgment and decree of  the  First  Appellate  Court  dated  29.3.84  and remanded the  appeal to  the District  Judge to  decide  the first appeal  afresh after  taking  into  consideration  the especificacao and other material on the record. After remand of the  appeal, the learned District Judge heard the parties and vide  judgment and  order dated  30.9.89 set  aside  the judgment of  the trial  court dated 27.7.67 and allowing the appeal, the  District Judge  passed a decree for declaration and possession  of  the  suit  property  in  favour  of  the original plaintiffs.  It was  found by  the learned District Judge that  the plaintiffs  were the  owners of the property bearing No.5501  , which  included  the  disputed  immovable property also.  A further  declaration was also given to the effect  that  the  defendants  were  in  possession  of  the property bearing No. 5568 and the claim of the defendants to be  in  possession  of  suit  property  was  negatived.  The successors in  interest of  the defendants  in the  original suit (appellants  herein) filed  a second appeal against the judgment  and   order  of  the  District  Judge  dated  30th

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September  1989.  Vide  judgment  and  order  dated  5.7.90, impugned herein, the High court dismissed the second appeal.      Mr.  Dhruv   Mehta,  learned   counsel  appearing   for appellants, submitted  that both  the First  Appellate Court and the  High Court had failed to consider the especificacao which reflected  the admissions  of the  parties and that an order of  especificacao being final and conclusive could not be controverted  through evidence  as had  been done  by the respondents in  the present  case.  It  was  urged  that  an especificacao is  binding on the parties and both the courts could not  go behind  it more  so  because  the  respondents herein  had   not  challenged   the   correctness   of   the especificacao through  an appeal.  Learned  counsel  further submitted that  the First  Appellate Court  also fell  in an error in  describing the  "tombacao" (survey  document) as a private document,  having no  sanctity of  law, ignoring the fact that  the respondents  herein had  neither  raised  any objection nor filed any "reclamacao" against the tombacao.      Mr. Verma,  learned senior  counsel appearing  for  the respondents  on   the  other   hand   submitted   that   the especificacao did  not reflect  the correct state of affairs and the evidence on the record exposed its incorrectness and as such  the first appellate court as well as the high Court were right  in prefering  the evidence to the especificacao, which had been drawn up even before the issues were framed.      The proceedings  of the  trial court  dated 10th  March 1962, settling the especificacao in the present case read as follows:      "I consider  as proved  by  way  of      documents and  by the  agreement of      the    parties     the    following      documents:      a)   The plaintiff is the owner and      possessor by  himself  and  through      his  conveyers   of  the   property      described at  the land Registration      Office  of   this   Camarca   under      No.5501 of book B912 new.      b)   This  property  was  described      and apportioned in the "Inventario"      among minors  carried  out  at  the      Bardez Comarco  court in  the years      1907-08,  on   the  demise  of  the      previous  possessor  ,  Jose  Jovem      Flaviano  Ferreira,   late   notary      public   of    Bardez,   with   the      boundaries   mentioned    in    the      endorsement  on   the   description      No.5501, having been purchased with      the   same    boundaries   by   the      plaintiff and  his brother  Govinda      by deed  dated 13.12.1913, ratified      by that of 19.9.1915.      c)   The   properties    Motouvadi,      bordering  the  property  No.  5501      are  described  at  the  same  land      Registration Office  under  No.5668      of Book b(15) new and 761 of Book B      old, and  the right  to 1/3 of this      latter belongs to the plaintiff.      d)   Vishnu   Porobo, member of the      joint Hindu  family  to  which  the      property   No.5668   belonged   did      intervene as  instrumental  witness      in  the   deed   dated   19.9.1915,

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    referred to  in clause  (b) of this      "Especificacao: (facts admitted).      e)   The defendant  Xencora  stored      outside   the   stone-wall,   which      exists on  the western  side of the      property;   No.    5668,    sterile      mineral-ore   and   thereafter   he      felled a  "Satondo" tree, valued at      Esc. 360$00,  this  felling  having      taken place  probably in  the month      of September, 1960.      f)   According   to   the   predial      description  No.5501  the  property      referred to  lies in  the  village,      Bicholim,  while  the  controverted      strip lies in the bordering village      of Bordem.      g)   The    conveyer     of     the      defendants, Indira  Dondo, sold  to      the  latter  the  property  ‘Motou-      Vadda’  with   its  adjoining  plot      "Gumtachi-Molly".      h)   The property ’Motou-Vadda’ has      on the west a stony-wall throughout      its extension.      i)   At the time of the Land Survey      of the Comunidade of Bordem against      which the  plaintiff did not file a      claim of  objections  when  it  was      liable  to   "reclamacao"  of   the      interested   parties,    the   plot      identified  in   para  13   of  the      written-statement was  surveyed  as      belonging to  the conveyer  of  the      defendants, or  be it, upto the row      of stones referred to in para 10 of      the  same  and  the  usurpation  of      19,322 sq.  metres unconfessed  but      paid by  the defendants,  has  been      found.           On  the   same  occasion,  the      western part  in respect of the row      of stones  wall  surveyed  and  the      usurpation  of  19,052  sq.  metres      discivered, confessed  by  Baburao,      was paid its value.      j)   The  Villages  of  Bordem  and      Bicholim  are  surveyed  and  their      boundaries  defined,  although  the      survey   cadastre    may   not   be      finalised.      k)   From the  deed of  purchase of      the property  No. 5501,  it is seen      that this  property is  bounded  on      the north  by the  property of  the      Comunidade of  Bordem  and  not  by      that of Aleixo Joao Lobo, according      to what is mentioned in the predial      description,    which    is    also      confirmed  by   the   cadastre   of      Bordem."      With a  view to  appreciate the submissions made at the bar. it  is first  necessary to  consider as  to what is the nature and status of the especificacao.      Articles 515  and 516  of the Portuguese code deal with

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the settlement of especificacao and the questionnario. These Articles read as follows:      "Art. 515:- When the trial is to be      held, the  Judge within  eight days      shall specify  the facts  which  he      considers as  admitted for  want of      denial, admitted  by  agreement  of      parties and proved by documents and      he shall  fix in  serial order  the      points of  fact in  controversy and      which are relevant for the decision      of    the     case.    From    this      questionnaire as  well as  from the      specification ,  a  copy  shall  be      given to the parties, who may file,      in duplicate,  the objections which      they  deemed   fit.  The  duplicate      shall  be   handed  over   to   the      opposite  side;   within  next  two      subsequent days the latter may give      its say  in the  matter. After  the      expiry   of    such   period,   the      objections shall be decided .      Para 1:- The questionnaire shall be      amongst the  facts pleaded, consist      of all  facts controverted relevant      to the  case and those which may be      indispensable for its resolution.      Para  2:-   The  objection  may  be      related   to    specification    or      questionnaire. The  latter  may  be      objected  for  deficiency,  excess,      complexity or obscurity.      Para 3:-  From the  order  deciding      the  objection,   appeal  lies   to      Relacao  (High   Court)  from   the      decision of  the latter  no  appeal      shall lie to the supreme court .      Article    516     -    once    the      questionnairo   is    settled   the      parties shall  be notified  to give      the list of witnesses and apply for      any other mode of evidence."      From a combined reading of Articles 515 and 516 (supra) it become  obvious that  an especificacao  is only a step in the  proceedings  during  the  trial  and  is  a  record  of settlement aimed  at narrowing  down the  controversy in the case. It  certainly has  probative value but cannot be given the status of a binding judicial order which cannot be given the status  of a  binding judicial  order  which  cannot  be controverted through  evidence led at the trial on the basis of   the pleadings of the parties and the issues raised. The High Court  therefore, rightly found that the matters sorted out at  the time  of settlement  of  the  especificacao  are required to be borne in  mind while deciding the dispute and that the  facts detailed   in  the especificacao  should  be taken into  consideration for  the purpose  of  adjudicating various issues  raised  in  the  suit  but  nonetheless  the controversy in  the suit  is to  be decided  on the basis of evidence, both  oral  and  documentary,  led  at  the  trial bearing in  mind the especificacao. That an especificacao is only a  step in  the proceedings  aimed to  narrow down  the controversy and  is only  a procedural  step is also obvious from the  fact that  in clause (i) of especificacao reliance has been  placed on  ’tombacao’ treating it as a document of

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conclusive nature  and a  ’public document’.  The ’tombacao’ has been  found that the ’tombacao’ record took place in the year 1948.  it was  "incomplete" and  in respect of the same there was  "no promulgation".  The  High  Court,  therefore, rightly found  that the  District Judge was justified in not relying upon  that record  which was  not  of  a  conclusive nature to  arrive at  its findings. The relevancy, the proof and the evidentiary value of a document has to be decided at the trial  notwithstanding, the  record of the especificacao because in the event, the documents on the basis of which an especificacao is  drawn up, treating the statements in those documents as  admissions, is  found at  the trial either not proved or  not genuine  or otherwise not relevant, it cannot be said  that the statements made in the especificacao would over-ride the  doubtful nature of the document and the trial court would  be unable  to pronounce  upon the  correctness, relevancy and  authenticity of  the document.  The court  is duty bound  to pronounce upon the relevancy and authenticity of the  document on  the basis  of evidence led at the trial notwithstanding what  is settled in the especificacao, drawn up at  the initial stages of the case, as not to do so would result in  miscarriage of  justice. We,  therefore, find  it difficult to  accept the  submission of  Mr. Mehta  that the First Appellate  Court or  the High  court  could  not  have recorded findings  on the  basis of  the evidence led at the trial, strictly  in support  of  the  pleadings,  which  run contrary to  the record  of the  especificacao and we are of the view  that an  especificacao is  only in the nature of a step in  the proceedings  of the  trial, which has probative value and  is required  to be  borne in  mind but  the  same cannot be  preferred to  the evidence led at the trial which conclusively shows  the statement  or any part of  it in the especificacao to  be either  incorrect or  not  ’proved’  or having no  evidentiary value  or relevance or suffering from any like defect.      At the  time when a Local Commissioner was appointed by the  learned   Judicial  Commissioner  in  exercise  of  the judicial powers,  the especificacao  stood already  settled. The Local  Commissioner was  still directed  to examine  the question of  ownership, title,  possession and  prescription and non  of the  parties raised any objection to that course being adopted.  After the receipt of the report of the Local Commissioner, the  case was  remanded to the trial court for determination  of  prescription  because  of  the  claim  to possession  raised   on  its   basis  by   the   defendants. Admittedly, the  especificacao dated 10.3.62 did not concern itself with  claim based  on prescription for deciding which the case  had been  remanded, and therefore, the question of prescription  had   to  be   decided  independent   of   the especificacao on  the basis  of the  relevant material. once the claim  of the  defendants to ownership and possession on the basis  of prescription  falls,  the  statements  in  the especificacao, which make a record contrary thereto, have to be ignored  and the findings recorded by the first appellate court after remand and by the High Court that the defendants appellants  had   failed  to  substantiate  their  claim  to ownership and  possession of  the disputed land on the basis of adverse  possession, must  be preferred,  notwithstanding any   statement   to   the   contrary   contained   in   the especificacao.      Coming now  to the  merits of  the instant  appeal. The defendant appellants  did not  file any  objections  to  the report of the local commissioner, who found the Indira Dando did not  sell the  disputed plot  known as " Motou-Vadda" to the  defendants  who  were  owners  of  the  adjoining  plot

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"Gumtachi-Molly" notwithstanding  the *******  in clause (g) of the especificacao. At the trial, defendants-appellants in the suit  did not claim title to the suit property by way of any transfer,  conveyance, sale  or gift.  They rested their claim on  title by adverse possession. The issue relating to adverse possession  of the  suit property  by the defendants has been  considered by  the courts below. After the learned Judicial Commissioner  referred the issue of possession vide order dated  9.2.1970, to  the civil Judge (senior Division) the same  was debated  before the  learned Civil  Judge, who vide order  dated 4.8.1971,  came to the conclusion that the defendants had  failed to prove that they were in possession of the  suit land for the prescribed period of 30 years. The learned District  Judge,  in  appeal  also  found  that  the defendants had failed to prove their adverse possession over the disputed property and on the contrary the plaintiffs had proved their  possession and  title  to  the  said  property throughout. After  the report of the local Commissioner, the District Judge, Panaji, once again by his judgment and order dated 30.9.1989  came to  the conclusion that the defendants had failed  to prove  their possession  of the suit property for a  period of 30 years or more and that the plaintiffs on the other hand had proved their  title and possession of the suit  land.  The  High  Court  agreed  with  the  concurrent findings of  fact recorded  by the courts below, both on the issue of  possession as well as on the issue of title and by a well  considered and detailed order negatived the claim of the defendants  (appellants  herein)    to  possession    by prescription. The concurrent findings recorded by the courts below to   negative  the claim of ownership of the defendant appellants are  based on  proper appreciation  of  evidence, both oral and documentary on the record. In our opinion, the courts below  have taken  considerable pains  to decide  the issues between the parties after applying correct principles of law. The High Court to the extent necessary also examined the  record,  including  the  evidence,  while  hearing  the arguments in  the second  appeal filed  the appellants under section 100  of the  code of civil procedure, with a view to do complete justice between the parties. We find no error to have been  committed  by  the  courts  below.  The  impugned judgment and  order do  not call  for any interference. This appeal, therefore,  fails  and  is  dismissed,  but  in  the peculiar facts of the case without any order as to costs.