Full Judgment Text
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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.