KASHINATH S BANDEKAR Vs. ATMARAM VASSUDEVA NAIQUE

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the High court of Judicature, Bombay (Panaji bench, Goa) dated 5/7/1990.

(2.) The case has a chequered history but we shall refer to the facts to the extent relevant for the purpose of disposal of this appeal. On 23/7/1961 the predecessors of the 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 an 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 10/3/1962. Parties led evidence, both oral and documentary in support of their respective claims. Vide judgment and order dated 27/7/1967, the trial court dismissed the suit. The plaintiffs in the suit filed a first appeal against the judgment and order dated 27/7/1967 in the court of the learned Judicial Commissioner. After hearing the parties, the learned Judicial Commissioner found that 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 a Local Commissioner who was directed 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 his report on 8/11/1969, holding that the plaintiffs were the owners of the immovable property known as "bismachotembo". It was also found by the Local Commissioner that immovable property called "mattonvaddy" belongs to the defendants and that the 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 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 9/2/1970, the learned Judicial Commissioner remanded the case to the court of learned Civil Judge (Senior Division) to adjudicate "on the issue of 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 the learned counsel for the parties on the issue of possession and prescription, vide his order dated 4/8/1971, 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 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 15/6/1966. 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 District Judge concerned. The learned Judicial Commissioner, vide order dated 31/8/1972 forwarded the record 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 appealand vide judgment and order dated 29/3/1984, set aside the judgment and decree of Civil Judge dated 27/7/1967 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 the 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 31/3/1989 set aside the judgment and decree of the First Appellate court dated 29/3/1984 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 30/9/1989 set aside the judgment of the trial court dated 27/7/1967 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 30/9/1989. Vide judgment and order dated 5/7/1990, impugned herein, the High court dismissed the second appeal.

(3.) Mr. Dhruv Mehta, learned counsel appearing for the 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. The 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".