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2012 DIGILAW 1274 (BOM)

Anand Raya Shirodkar v. Hari Yeshwant Naik

2012-07-13

U.V.BAKRE

body2012
JUDGMENT U.V. Bakre, J.- 1. This Second Appeal is directed against the judgment and decree dated 19/03/2003 passed by the learned Additional (III) District Judge, South-Goa at Margao, (First Appellate Court. for short), in Regular Civil Appeal No. 206 of 2002. 2. The said Regular Civil Appeal No. 206 of 2002 was filed by b the plaintiff of Regular Civil Suit No. 177 of 1995 against the judgment and Decree dated 26/11/2002 passed by the learned Civil Judge Junior Division, Margao (Trial Court, for short), in the said suit. 3. The parties shall be referred to in the manner as they appear in the cause title said suit. 4. The plaintiff had filed the suit for declaration that he is the sole owner of the suit house described in paragraph 6 of the plaint and that the defendant be directed to vacate the portion of the suit house and hand over the vacant and peaceful possession to him and c to pay damages at the rate of Rs. 500/- per month and interest at the rate of 18% per annum from the date of wrongful and illegal possession of the portion of the suit house and for mental tension. The case of the plaintiff, in short, was as follows : He and the defendant are residing in their old ancestral house existing in the property Karebhat situated at Gogol, Margao, Goa bearing Chalta No.4, P.T. Sheet No. 147 of City Survey records of Margao and that he occupies the northern part whereas the defendant occupied the southern part of that house. Beside the said old ancestral house the plaintiff was having one hut for storing firewood and one d hut used as cowshed and he converted the fire wood hut into a residential house which is the suit house. He was keeping fire wood under the palm leaves roof which was resting on the wall of the suit house built by him in the year 1970. The defendant without his knowledge obtained Mundcarial order on 15/03/1993 in Case No. MUND/MAR/34/92 and applied for registering his name in the city survey records of Margao. After getting knowledge of the said order the plaintiff obtained the certified copy and filed appeal against it before the learned Additional Collector, Margao. The defendant without his knowledge obtained Mundcarial order on 15/03/1993 in Case No. MUND/MAR/34/92 and applied for registering his name in the city survey records of Margao. After getting knowledge of the said order the plaintiff obtained the certified copy and filed appeal against it before the learned Additional Collector, Margao. On 28/11/1994, the defendant tried to interfere with the suit house portion and threw out the fire wood and on 11/01/1995 tried to dispossess the plaintiff of the said portion of palm leaves attached to the suit house. On 12/09/1996 the defendant with the help of Executive Engineer, PW D., Water Department, under police protection, obtained water connection to the suit house. 5. The defendant, in his written statement, alleged as follows: He and the plaintiff are mundcars of Kare family and that the suit house does not belong to the plaintiff but belongs to the defendant wherein he partly resides and cooks food. The defendant is the mundcar of the dwelling house in terms of the order of the Mamlatdar in case No. MUND/MAR/34/92 and based on the order and the sketch prepared in case No. MUND/MAR/39/80, he applied for inclusion of his name in the said survey record in respect of the original dwelling house. The appeal filed by the plaintiff before the Additional Collector has not been allowed. The defendant obtained the water connection b to his own hut and police protection was taken since the plaintiff has obstructed to lay the pipe line. The suit is barred by limitation since the hut has been in existence for more than 30 years whereas the suit has been filed in the year 1995. The suit is also bad for non-joinder of necessary party that is the land lord. 6. The plaintiff had examined himself as PW 1. Shri Krishna Shetkar as PW 2 and Shri. Shimao Dias as PW 3, whereas the defendant had examined himself as DW1 and one Mr. Khusta Kattu Naik as DW 2. 7. Upon consideration of the entire evidence on record, the Trial Court dismissed the suit. Similarly upon considering the entire material on record, the learned First Appellate Court also dismissed the appeal filed by the plaintiff. Both the Courts below have concurrently held that the plaintiff has failed to identify the suit house and that there is variance between the pleadings and the proof. 8. Similarly upon considering the entire material on record, the learned First Appellate Court also dismissed the appeal filed by the plaintiff. Both the Courts below have concurrently held that the plaintiff has failed to identify the suit house and that there is variance between the pleadings and the proof. 8. This Second Appeal has been admitted on the following substantial questions. of law namely : (I) Whether the Court could have considered the question of identification of the suit house when the same was not d disputed by the respondent in his written statement and moreover was not an issue framed in the suit? (II) Whether the Appellate Court could have reversed the findings of the Trial Court on issue No.3, when no cross objection or cross appeal has been filed by the respondent before it in respect of the issue and the finding given thereon? (III) Whether the Bhatkar was a necessary party to the suit? (IV) Whether the suit was barred by limitation or for the reason given by the Appellate Court? (V) Whether the house tax receipts produced in the name of the appellant's father along with the application for electricity connection made by the respondent pointing out that the suit house belonged to the appellant's father could not have been considered on the ground that the same had not been pleaded in the plaint or the same was a not an issue in the Trial Court? 9. Mr. A. F. Diniz. learned counsel, argued on behalf of the plaintiff whereas Mr. Shivan Dessai, learned advocate argued on behalf of the Legal Representatives of the defendant who died during the pendency of the Second Appeal and who have been brought on record. 10. The learned counsel on behalf of the plaintiff submitted that there was absolutely no dispute about the identity of the suit house. He invited my attention to paragraph 3 of the written statement b wherein the defendant has averred that the suit house referred to in paragraph 6 of the plaint does not belong to the plaintiff but to the defendant and that the defendant resides in the same and cooks food. He further submitted that no issue relating to the identification of the suit house was framed by the Trial Court and that during evidence there was on record the sketch of the ancenstral house and of the huts produced as Exhibit P-l/D-1. He further submitted that no issue relating to the identification of the suit house was framed by the Trial Court and that during evidence there was on record the sketch of the ancenstral house and of the huts produced as Exhibit P-l/D-1. which duly showed the suit house. He, therefore, contended that the Courts below have erred in holding that the suit house is not identified. He further submitted that the plaintiff has not prayed for ownership of the land below the suit house c and therefore the landlord was not necessary party to the suit. He also argued that it is totally wrong to say that since the Field Surveyor had prepared the said sketch at Exhibit PI/D1 in case No. MUNO/MAR/39/80 on 17/10/1981, the suit filed on 19/09/1995 is barred by limitation. According to learned Mr. Diniz, the cause of action arose in January, 1995 when the defendant illegally entered the suit house. He therefore contended that the suit was not barred by law of limitation. He lastly submitted that the judgments of the Lower Courts which are mainly based on the misconception that the suit house is not identified are liable to be quashed and set aside. 11. Per contra. Mr. Shivan Dessai, learned counsel on behalf of the legal representatives of the defendant at the out set contended that this Court has little scope in this Second Appeal to interfere with the concurrent findings of facts rendered by the Courts below since it has not been shown by the plaintiff that the findings are perverse. He argued that it is only on showing by the plaintiff that findings recorded by First Appellate Court are perverse that is passed on misreading of evidence or based on no ,evidence that this Court can interfere. In this regard he has relied upon : (1) Vidhyadhar v. Manikrao and another. (1999) 3 SCC 573 ). (2) Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343 . (3) Manicka Poosali (Dead) by Lrs. And others v. Anjalai Ammal and another, (2005) 10 SCC 38 . 12. In this regard he has relied upon : (1) Vidhyadhar v. Manikrao and another. (1999) 3 SCC 573 ). (2) Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343 . (3) Manicka Poosali (Dead) by Lrs. And others v. Anjalai Ammal and another, (2005) 10 SCC 38 . 12. On merits, the learned counsel for the legal representatives of the defendant, argued that in the plaint there is no description of any nature insofar as the suit house and the suit house portion is concerned and there is non- compliance of provision of Order VII, Rule 3 of the Civil Procedure Code (C.P.C.). He further argued that in paragraph 3 of the written statement the defendant has referred to his own structure and this is clear from paragraph 13 wherein, the defendant has clearly stated that he has obtained water connection to his own hut and not to the hut of the plaintiff. According to learned counsel therefore, it cannot be said that identity of the suit house is not disputed. He invited my attention to the paragraph No.9 of the written statement wherein it is pleaded that the plaintiff has misidentified the houses and the huts and that the plaintiff and the defendant are calmly enjoying their huts and houses without any disputes. He read out the evidence of PW 1, PW 2 and PW 3 and showed that there is variance between pleadings' and proof and that the witnesses have contradicted one another. He pointed out that in the plaint. the plaintiff speaks about one hut for storing fire wood and another hut used as cowshed in addition to the ancestral house as belonging to him but in his cross examination. PW 1 says that he is in possession of three huts besides the house. He further pointed out that PW 2c has stated that the-plaintiff has a cow shed, hut garage and another house in addition to the old ancestral house. He then took me to the evidence of PW 3 who has stated that the plaintiff had garage cow shed and three huts. He, therefore, contended that there are different versions in the plaint and in the evidence. He further argued that in terms of Section 15 of the Goa. Daman and Diu Mundkar (Protection from eviction), Act 1975. He then took me to the evidence of PW 3 who has stated that the plaintiff had garage cow shed and three huts. He, therefore, contended that there are different versions in the plaint and in the evidence. He further argued that in terms of Section 15 of the Goa. Daman and Diu Mundkar (Protection from eviction), Act 1975. a mundkar in order to become owner has to purchase the dwelling house which has not been done by the plaintiff. He, therefore, argued that the plaintiff cannot claim ownership of the suit house since it is the landlord who is still owner of the land below d the suit house. He submitted that the Second Appeal is liable to be dismissed. 13. I have gone through the entire material on record. 14. As has been rightly argued by Mr. Dessai, learned Counsel for the legal representatives of the deceased defendant, the Trial Court, while answering each issue has observed that the identity of the suit house in itself is not established by the plaintiff. The First Appellate Court has specifically held that it is clear that the appellant (plaintiff) has absolutely failed to identify the suit house with respect to which he has filed the suit. 15. In paragraph 5 of the plaint, the plaintiff has pleaded that besides the old ancestral house the plaintiff is having one hut for storing fire wood and one hut used as a cowshed. In paragraph 6 of the plaint, it is pleaded that the plaintiff has converted the fire wood hut into residential house as due to increase in the family members, a the house fell short of place and that this is the suit house. There is no other description of the suit house in so far as the dimensions are concerned, distance from the old ancestral house, the year in which the firewood hut was constructed the year in which it was converted into residential house and material used for construction of the suit house. As has been rightly held by the First Appellate Court since the subject matter of the suit was immovable property the plaint had to contain description of the property, sufficient, to identify it in view of the requirement of Order VII. Rule 3 of C.P.C. There is no substance in the contention of Mr. As has been rightly held by the First Appellate Court since the subject matter of the suit was immovable property the plaint had to contain description of the property, sufficient, to identify it in view of the requirement of Order VII. Rule 3 of C.P.C. There is no substance in the contention of Mr. Diniz, learned counsel for the plaintiff, that b there was absolutely no dispute about the identity of the suit house. The judgment of the lower Courts reveal that in his cross-examination, PW 1 has stated that he is in possession of three huts; PW 2 comes out with a version that the plaintiff has a cowshed, a hut, another house and a garage and PW 3 further goes to the extent of saying that the plaintiff has one garage one cowshed and three huts. Neither PW 1 (Plaintiff) nor his witnesses have actually identified as to which structure is the suit house. Issue No. 1, as framed by the Trial Court, was whether the plaintiff proves that he has converted the fire wood hut into a residential house and that he is in exclusive possession c and enjoyment of the same. For proving the same the plaintiff was bound to first identify the suit house since there were more than two structures in that land in addition to the ancestral house. 16. The plaintiffs father Raia, was registered as mundkar in the case No. MUNO/MAR/39/80. It was in this case of the plaintiffs father that the sketch Exhibit PI /01 was drawn. In this sketch. the structure which has been marked as "X" by the Trial Court has been shown as fire wood store of Yeshwant who is the father of the defendant whereas the structure marked as "X1" is shown as fire wood store of Raya the father of the plaintiff. In his cross-examination however, PW 1 has stated that the structure marked "X" is in dispute in this case. Indisputably, the defendant is the mundkar in respect of the said hut at point "X", which is said to be 12.75 meters away from the ancestral house. 17. There are concurrent findings of the Courts below to the effect that the suit house is not at all identified. This is finding of fact which goes to the root of the case. This Court in the Second Appeal cannot interfere with the same. 17. There are concurrent findings of the Courts below to the effect that the suit house is not at all identified. This is finding of fact which goes to the root of the case. This Court in the Second Appeal cannot interfere with the same. In the case of "Vidhyadhar" (supra). the Hon'ble Apex Court has observed that the findings of fact concurrently recorded by the Trial Court as also by Lower Appellate Court could not have been legally upset by the High Court in the Second Appeal under Section 100 of C.P.C. unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record. no reasonable person could have come to that conclusion. The Apex Court has further observed that it was not a expected of the High Court to set aside those findings merely on the ground that the circumstances which had already been considered by the lower Courts appeared to suggest some other conclusion from proved facts. In the case of "Manicka Poosali" (supra), the Hon'ble Apex Court has held that only on showing that findings recorded by First Appellate Court are perverse, that is, based on misreading of evidence or based on no evidence interference with findings of fact is permissible and otherwise it is not justified. In the case of "Karnataka Board of Wakf” (supra), the Apex Court has referred to Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392 ] wherein it is held that it is now well settled that concurrent findings of fact of trial Court and First Appellate Court cannot be interfered with by the High Court in exercise of is jurisdiction under Section 100 of C.P.C. Further reference has been made to Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 116 wherein it has been held that interference with concurrent findings of the Courts below by the High Court under Section 100 C.P.C. must be avoided unless warranted by compelling reasons. It is held that In any case the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower Courts. It is well settled that even assuming that another view is possible on re- appreciation of the same evidence, that should not be done if it cannot be said that the view taken by the First Appellate Court was based on no material. 18. It is well settled that even assuming that another view is possible on re- appreciation of the same evidence, that should not be done if it cannot be said that the view taken by the First Appellate Court was based on no material. 18. In view of the above, the substantial question at serial No. 1 is answered against the plaintiff. 19. Once it is clear that the suit house is not identified by the plaintiff the question of deciding as to who is the owner of some unknown/unidentified structure called as "suit house" does not arise. The Trial Court on the ground of want of identification of the suit house by both the parties, has held that the defendant has not proved d that the suit house belongs to him. The First Appellate Court has observed that the house marked "X" on the sketch exhibit P1/Dl belongs to the defendant, which is not a disputed fact. Hence, there is no reversal, as such, of any finding. Substantial question at serial No. II gets answered against the plaintiff. 20. It is not the case of plaintiff that he has purchased the "dwelling house" from the Bhatkar for him to become owner of the suit house which is claimed to be part of the dwelling house. Therefore, the question of granting declaration to the plaintiff that he is sole owner in possession of the suit house in the absence of the Bhatkar being party to the suit does not arise. Hence the substantial question serial No. III also gets answered against the plaintiff. 21. In my considered opinion, the substantial questions at serial No. iv and v are not relevant, in view of the above. 22. There is therefore no merit in this Second Appeal which cannot succeed a 23. In the result the Second Appeal is dismissed, however with no order as to costs. Appeal dismissed.