JOSE ANTONIO PEDRO MENINO FERNANDES Vs. INACIO FERNANDES

JUDGEMENT

(1.) Heard Mr. S.S. Kakodkar, learned counsel appearing for the appellants and Mr. S.D. Lotlikar, learned Senior Counsel appearing for the respondents. The above Second Appeal came to be admitted on the following substantial questions of law:

(2.) Mr. S.S. Kakodkar, learned counsel appearing for the appellants in support of his contentions with regard to the aforesaid substantial questions of law has pointed out that as per the Court auction proceedings which are at Exhibit 40/C, the northern boundary of the property which has been purchased by the appellants is the property of Roque Menezes which is 44 metres from the existing house located in the property surveyed under No. 2/5. The learned counsel further pointed out that on going through the survey plan which is at Exhibit 41/C, the distance from the northern boundary of the property surveyed under No. 2/4 to the northern boundary of the property surveyed under No. 2/5 is 44 metres. The learned counsel further pointed out that this itself suggest that the property between the northern boundary of the property surveyed under No. 2/5 and the northern boundary of the property surveyed under No. 2/4 belongs to the appellants. The learned counsel has thereafter taken me through the documents at Exhibit 40/C as well as the report submitted by the appraisal in the said proceedings and pointed out that there is a specific averment to suggest that the property which is the subject matter of the auction was admeasuring 4239 square metres. The learned counsel further pointed out that this further suggest that the learned Judge while passing the impugned judgment has misconstrued the said documents to come to the conclusion that the appellants have no right to the property surveyed under No. 2/4. The learned counsel further pointed out that the property which belongs to the appellants is registered in the Land Registration Office under No. 35993 which shows that the property of the respondents is bounded towards the eastern, western and southern side of the property of Ana Francisca Dias and on the northern side is the property of Roque Menezes. The learned counsel thereafter has taken me through the Land Registration Document of the property purchased by the respondents which is registered under No. 21027 at Exhibit 89/C and pointed out that the property of the appellants is shown to be towards the northern and western side and in the names of some other persons. The learned counsel further pointed out that this further establishes that the property claimed by the appellants is part of the property surveyed under No. 2/4 which also forms part of the property purchased by the appellants' mother in Court auction. The learned counsel further submitted that the learned Judge has failed to take note of the document at Exhibit 40/C on a spacious plea raised by the respondents to the effect that such document was fabricated. The learned counsel further pointed out that the learned Judge has erroneously taken an inference with regard to the fact that the appellant No. 1 was convicted in criminal case concerning fabrication of documents when there was nothing on record to suggest and/or could be implied from the evidence on record that any such act was committed by the appellant No. 1 in the present dispute. The learned counsel further pointed out that the person who is false in one that is always false cannot be applied in civil proceedings as it is well settled that the civil dispute is decided on preponderance of probabilities. The learned counsel further pointed out that there is no material to show that some documents from the auction proceedings have been misappropriated by the appellants herein. The learned counsel further submitted that the inference drawn by the Courts below on that count is totally misconceived and deserves to be quashed and set aside. The learned counsel has thereafter taken me through the documents on record especially the judgment passed by the then Appellate Court and pointed out that some third party raised objection with regard to the auction proceedings which came to be rejected by the then Appellate Court. The learned counsel further submitted that the appellants have engaged the services of an expert who unfortunately expired and they desired to examine another commissioner which was refused by the Courts below. The learned counsel further pointed out that in case the relief sought by the respondents in the counter claim is up held, it would result in the situation that the appellants would have no means of access to the main road located towards the eastern side of the property surveyed under No. 2/4. Without prejudice to his earlier contention, the learned counsel further pointed out that the appellants are always using the motorable access to go to the main road located on the eastern side. The learned counsel has taken me through the judgments passed by the Courts below and pointed out that as the documents have been misconstrued, the learned Judge was not justified to pass the impugned judgment and dismiss the suit filed by the appellants and decreed the counter claim.

(3.) On the other hand, Mr. S.D. Lotlikar, learned Senior Counsel appearing for the respondents has supported the impugned judgment. The learned Senior Counsel has pointed out that both the Courts below upon appreciating the evidence on record have come to the conclusion that the appellants have failed to establish that they have any right to the property surveyed under No. 2/4. The learned Senior Counsel further pointed out that in auction proceedings the appellants have purchased only the portion of the property surveyed under No. 2/5 and as such, the appellants had no claim to the property surveyed under No. 2/4. The learned Senior Counsel further pointed out that both the Courts below upon appreciating the evidence on record have come to the conclusion that the respondents are in possession of the disputed portion of the property. The learned Senior Counsel further pointed out that these concurrent findings of fact cannot be re-appreciated by this Court in the present Second Appeal under Section 100 of Civil Procedure Code. The learned Senior Counsel has taken me through the substantial questions of law framed by this Court and pointed out that as there is no misconstruction of any documents referred to therein, the question of deciding the substantial questions of law in favour of the appellants would not arise. The learned Senior Counsel further submitted that as far as the contention of the learned counsel appearing for the appellants to the effect that the appellants have a motorable access to go to the main road located towards the eastern side of the property surveyed under No. 2/4, the learned Senior Counsel upon instructions from the respondents has pointed out that the respondents would reserve an access to the appellants having a width of three metres to go to the main road located towards the eastern side of the property surveyed under No. 2/4 facing the main door of the existing house located in the property surveyed under No. 2/5. The learned Senior Counsel further pointed out that the respondents will not raise any obstruction to such user of access to go to the house of the appellants located in the property surveyed under No. 2/5 at Seraulim Village. The learned Senior Counsel thereafter has taken me through the impugned judgments passed by the Courts below and pointed out that there is no case made out by the appellants for any interference in the impugned judgments. The learned Senior Counsel as such submits that the substantial questions of law framed by this Court be answered in favour of the respondents and the appeal be accordingly rejected.