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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: JU D G ME N T DR. ANAND. J. This appeal by special leave isdirected against the judgment and order ofthe High Courtof Judicature Bombay (PanajiBench, Goa) dated 5th of July 1990. The case has a checquered history but we shall refer to the facts to the extentrelevant for the purpose of disposal of this appeal. On 23rd July 1961 the predecessors of respondents filed a Civil suit in theCourt of Civil Judge (SeniorDivision, Bicholin) for declaration that they are the owners andpossessors of the disputed properties.That suit was triedunder the portuguese Civil procedure Code. After going through the pleadings and the documents and especificacao was drawn up bythe 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. Objectionsfiled to the especificacao were decided on 10.3.62. Parties led evidence, both oral and documentary in supportof their respective claims.Vide judgment and order dated 27.7.67, the trial court dismissedthe suit. The plaintiffs in thesuit filed a first appeal against the judgment and order dated 27.7.67 in the court ofthe learned JudicialCommissioner. After hearingthe parties, the learned Judicial Commissioner found the trial court had not applied its mind tothe issue of title as also to the effect of certain documents produced by the parties which were in the natureof agreements. The learnedJudicial Commissioner appointed Mr. Pinto Menezes, as Local Commissioner who wasto inspect the suit land, examinethe documents on the record but without recording any further evidence to submit a report, after considering the evidence already on the record, regardingthe issue of ownership of the disputed immovable property. The Local Commissioner submittedhes report on 8.11.69,holdingthat at theplaintiffs werethe owners of the immovable property known as " Bismachotembo". Itwas also foundby the Local Commissioner that immovable property called disputedland which lay between theaforesaid two immovable properties, belongsto theplaintiffs in the suit, who therefore had title to that property. The learned JudicialCommissioner
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perusedthe report of the Local Commissioner and foundthat he had not given any report on the question of possession of the property in dispute. Vide order dated9.2.70, the learnedJudicial Commissioner remanded the caseto the court of learned Civil Judge (Senior Division) to adjudicate "on the issue off possession and prescription" as claimed by the defendants on the basisof the evidencealreadyavailable on the record after taking note of the report of the Local Commissioner. The learned Civil Judge (Senior Division), after hearing learned counselfor thepartieson the issue of possession and prescription,Vide his order dated 4.8.71, came to theconclusion that theplaintiffs were in possession ofthe disputed piece of immovableproperty and that the defendants had failed to prove that they hadbeen in possession of the disputed land by prescription, as allegedby them. After recording thisfinding, the learned Civil Judge forwarded the finding on the issue of possession and prescription alongwith 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 ofthe 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,noticedthat under the Civil procedure Code read with theCivil Courts Act 1965, the court of the Judicial Commissioner no longer had jurisdiction to entertainand hear an appeal from the judgment, order or decree passed by the learned Civil Judge and that such an appeal could lie onlybefore the concerned District Judge. The learned Judicial Commissioner,vide order dated 31.8.1972 forwardedthe recorded ofthe case to the District Judge atPanaji for disposal of the appeal. Both the original plaintiff as well as the original defendants having died in the meanwhile,their legal representativeswere 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 decreein the suit in favour of the plaintiffs. The defendants in that suit, challenged the judgment and decree dated 29.3.1984 passedby theDistrict Judge, through a second appeal in the Panaji Bench of the High Court. (Second Appeal No.30 of1984). After hearing learned counsel for the parties, a learned single Judge of the High Court found that the FirstAppellate Court had failed to takeinto consideration the especificacao prepared by the trial court and vide judgment dated 31.3.89 set aside thejudgment and decree of theFirst Appellate Court dated29.3.84 and remanded the appeal to the District Judge to decide the first appeal afresh after taking into consideration the especificacao and othermaterial on therecord.After remand of theappeal,the learned District Judge heard the parties and vide judgment andorder dated 30.9.89 set aside the judgment of the trialcourt dated 27.7.67 andallowing the appeal,the District Judge passed a decree for declaration and possessionof the suit property in favour of the original plaintiffs. It was found bythe learned District Judge that theplaintiffs were the owners ofthe property bearingNo.5501 , which included the disputed immovable property also.A further declaration was alsogiven to the effectthat the defendants were in possession of the property bearing No. 5568 and the claimof the defendants to be inpossession ofsuit propertywas negatived. The successors in interestof thedefendants in the original suit (appellants herein) filed a second appeal against the judgment andorder of theDistrict Judge dated30th
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September 1989. Videjudgment and order dated 5.7.90, impugned herein, the High courtdismissed the second appeal. Mr. Dhruv Mehta, learned counsel appearing for appellants, submitted that both the First Appellate Court and the High Court hadfailed to consider the especificacao which reflected the admissions of the parties and that an order of especificacaobeing final andconclusive could not be controverted through evidence as had beendone by the respondents inthe present case. Itwas urged that an especificacao is binding on the parties and both the courts could not go behind it more so because the respondents hereinhad not challengedthe correctness of the especificacao through an appeal. Learned counsel further submitted thatthe First Appellate Court also fell in an error in describing the "tombacao" (survey document)as a privatedocument, having no sanctity of law,ignoring the fact that the respondents herein hadneither 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 reflectthe correct state of affairs and theevidence on therecord 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 upeven before theissues were framed. The proceedings of the trial court dated 10th March 1962, settling the especificacao in thepresentcase read as follows: "Iconsider as proved by way of documents and by the agreement of the partiesthe following documents: a) The plaintiffis the owner and possessor by himself and through his conveyers of theproperty described at the land Registration Office of this Camarca under No.5501 ofbook B912 new. b) Thisproperty was described and apportioned inthe "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 boundariesby the plaintiff and hisbrother Govinda bydeed dated 13.12.1913,ratified bythat of19.9.1915. c) Theproperties Motouvadi, borderingthe property No. 5501 are described at the same land Registration Office under No.5668 ofBook 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 propertyNo.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 onthe 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 ofSeptember, 1960. f) According to the predial description No.5501 theproperty referred to lies in thevillage, Bicholim,while the controverted strip liesin the bordering village ofBordem. 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 onthe west a stony-wall throughout its extension. i) At the time of the Land Survey ofthe Comunidade of Bordem against which theplaintiff 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 beit, upto the row ofstones referredto in para 10 of the sameand the usurpation of 19,322 sq. metresunconfessed but paid by the defendants, has been found. On the same occasion, the western part in respect of the row ofstoneswall surveyedand the usurpation of 19,052 sq. metres discivered, confessed byBaburao, was paid its value. j) The Villages of Bordem and Bicholim are surveyed and their boundaries defined, although the survey cadastre maynot be finalised. k) From the deed of purchase of the property No. 5501, it is seen that thisproperty is bounded on the northby theproperty of the Comunidadeof Bordem and not by that of Aleixo Joao Lobo, according towhat ismentioned in the predial description, which is also confirmedby 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 dealwith
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the settlement of especificacaoand thequestionnario. These Articles read as follows: "Art. 515:- When the trialis to be held, theJudge within eight days shall specify thefacts which he considers as admitted for want of denial, admitted by agreement of parties and provedby documents and heshall fix in serial order the points offact in controversy and which are relevantfor thedecision of the case. From this questionnaire as well asfrom the specification , a copy shall be given to the parties, who may file, induplicate, theobjections which they deemed fit. The duplicate shall be handed overto the opposite side; within next two subsequentdays the lattermay give its say in the matter. After the expiry of such period, the objectionsshall be decided . Para 1:- The questionnaireshall be amongst the factspleaded, consist ofall facts controvertedrelevant tothe 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, complexityor obscurity. Para 3:- From the orderdeciding the objection, appeal lies to Relacao (High Court) from the decision of the latter no appeal shall lie to the supreme court . Article516- 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 ofArticles 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 narrowingdown the controversy in the case. It certainly has probative value but cannot be given the status of abindingjudicial order which cannot be given the status of a binding judicial order which cannot be controverted through evidence led at the trialon the basis of the pleadings of the parties and the issues raised. The High Court therefore, rightly found that the matters sorted out atthe time of settlement of the especificacao are required to be borne in mind while deciding the dispute and that the factsdetailed in the especificacao should be taken into consideration for the purpose ofadjudicating variousissuesraisedin the suit but nonetheless the controversy inthe suit is to be decided onthe basis of evidence, bothoral and documentary, led at the trial bearingin mind the especificacao. That an especificacao is only astep in the proceedings aimedto narrow down the controversy and is only a proceduralstep isalso obvious from the fact that inclause (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 foundthat the ’tombacao’ record tookplace in the year 1948. it was "incomplete" and in respect of thesame there was "no promulgation". The High Court, therefore, rightlyfound that the District Judgewas justified in not relyingupon that record which was not of a conclusive nature to arrive at its findings. Therelevancy, the proof and theevidentiary value of a documenthas to be decided at the trial notwithstanding, the recordof the especificacao becausein the event, the documents on the basis of which an especificacao is drawnup, treating the statements in those documents as admissions, is found atthe trial either not proved or not genuineor otherwise not relevant, it cannot be said that the statements made in the especificacao would over-ride the doubtfulnature of the document and the trial court would beunableto pronounce upon thecorrectness, relevancy and authenticity ofthe document. The court is duty bound to pronounce upon the relevancy andauthenticity of thedocument on the basisof evidence ledat the trial notwithstandingwhat is settled in theespecificacao, 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 nothave 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 natureof a step in the proceedings of the trial, which has probative value and is requiredto be borne in mind but thesame cannot be preferred to the evidence led at the trial which conclusively shows thestatement or any part of it in the especificacao to be either incorrect or not’proved’ or having no evidentiary value or relevance or sufferingfrom any like defect. Atthe time when a Local Commissioner wasappointed by the learned Judicial Commissioner in exercise of the judicial powers, the especificacao stood already settled. The Local Commissionerwas still directed toexamine the question of ownership,title,possession andprescription and non of the parties raisedany objection to that course being adopted.After the receipt of the reportof the Local Commissioner, the casewas 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 tobe decided independent of the especificacao on the basis ofthe 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 andthe 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 landon the basis of adverse possession,must be preferred, notwithstanding any statement to the contrarycontained in the especificacao. Coming now to the meritsof theinstant appeal. The defendant appellants did not file any objections to the report of the local commissioner, who found theIndira Dando did not sell the disputed plot knownas " Motou-Vadda" to the defendants who were owners ofthe adjoiningplot
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"Gumtachi-Molly" notwithstanding the ******* in clause (g) of the especificacao. At the trial, defendants-appellants in the suit did not claimtitle to the suit property by way of any transfer, conveyance, sale or gift. Theyrested their claim on titleby adverse possession. The issue relating to adversepossession of the suit property by the defendants has been considered by the courts below. After the learned Judicial Commissioner referredthe issue of possessionvide 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 hadfailed to provethat they were in possession of thesuit land for the prescribed period of 30 years. The learnedDistrict Judge, in appeal also found that the defendants had failed to prove their adverse possessionover 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 possessionof 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 HighCourt agreed with the concurrent findings of fact recorded by the courts below, both on the issue of possession aswell ason the issue oftitle and by a wellconsidered and detailedorder negativedthe 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 arebased on proper appreciation of evidence, both oral and documentary on the record. In ouropinion, 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, whilehearing the arguments in the second appeal filedthe appellants under section100 ofthe code of civil procedure, with a view to do complete justice between theparties. We find no error to have been committed by the courts below. The impugned judgment and order donot call for any interference.This appeal,therefore, fails andis dismissed,but in the peculiar facts of the case without any order asto costs.