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2012 DIGILAW 266 (BOM)

Hyder Khan Nabu Khan (since deceased) thru LRs. v. Hyder Khan Hussein Khan (since deceased) thru LRs.

2012-02-06

F.M.REIS

body2012
Judgment The above Appeal has been admitted on 09.10.2003 on the following Substantial Questions of Law framed on 10.01.2002. a) As to whether the learned Judge was right in holding that the Plaintiffs could only maintain the suit, under the provisions of old Portuguese law and not under the Indian Limitation Act, once the alleged cause of action claimed by the Plaintiffs to have arisen, was after the Indian Limitation Act was extended to the State of Goa ? b) As to whether the learned Judge was right in unsettling the findings of the Trial Court, to the effect that the 2nd suit of the Plaintiff was barred by the provisions of res-judicata, or analogous thereto in the light of the findings rendered by the Court, in Civil Suit in the Judgment at Annexure-B, which were confirmed in Appeal ? 2. During the course of the hearing of the above Appeal, on perusal of the records as well as the impugned Judgments passed by the Courts below, I find that another substantial question of law arises in the present Appeal. (c) Whether the Lower Appellate Court has complied with the provisions of Order 41 Rule 31 of the Civil Procedure Court whilst disposing of the First Appeal preferred by the Respondent Nos.1 to 12, 16 and 17 ? 3. Shri J.E. Coelho Pereira, learned Senior Counsel appearing for the Appellants, has assailed the impugned Judgment essentially on the ground that the Lower Appellate Court set aside the Judgment passed by the learned Trial Judge without scrutinizing the evidence on record and has come to the conclusion that the Respondents/Plaintiffs have established their right of prescription over the suit property. Learned Senior Counsel has further taken me through the Judgment passed by the Lower Appellate Court and pointed out that the learned Judge has not at all adverted itself to the material on record to come to the conclusion that the Plaintiffs were in possession of the suit property. The learned Senior Counsel has further pointed out that there were earlier proceedings which were initiated by the Plaintiffs which are akin to the provisions of Section 6 of the Specific Relief Act, 1963, wherein the Court came to the conclusion that the Plaintiffs were not in possession of the suit property and the interim possession given to the Plaintiffs/Respondents, was ordered to be restored to the Appellants herein. Learned Senior Counsel further pointed out on the basis of the material on record that the original Defendant Nos.1, 2 and 3 were the original persons to whom the Aforamento was granted by the State Government and that after the said grant, the father of the Appellant entered into the suit property as a lessee and that thereafter the son of the original Grantee Andre Basilio D' Souza had executed a Lease Agreement in favour of the Appellants herein somewhere in the year 1964. Learned Senior Counsel further pointed out that the Appellants have been in possession of the suit property since the time the property was granted to the original grantee and, subsequently, that the same came to be leased to the father of the Appellant and that the father of the Respondents/Plaintiffs were in possession of only part of the property as sub-tenants and, as such, the question of claiming any prescriptive right over the suit property would not arise. Learned Senior further pointed out that the claim of the Appellants is on the basis of acquisitive prescription and, according to him, there is no finding arrived at by the Lower Appellate Court to the effect that there was any hostile title exercised by the original Plaintiffs which could entitled them to claim title by acquisitive prescription. Learned Senior Counsel further pointed out that though he does not dispute the fact that the claim of the original Plaintiffs/Respondent Nos.1 to 12, 16 and 17 of prescription is governed by the provisions of the Portuguese Civil Code, nevertheless, according to the learned Senior Counsel, the right to file a suit for declaration would be under the provision of the Specific Relief Act, 1963. Learned Senior Counsel further pointed out that he will not press for the second Substantial Question of law as to whether the findings in the earlier proceedings were res-judicata in the present suit. Learned Senior Counsel further pointed out that he will not press for the second Substantial Question of law as to whether the findings in the earlier proceedings were res-judicata in the present suit. The learned Senior Counsel has taken me minutely through the findings of the learned Trial Judge and pointed out that the learned Trial Judge upon scrutiny of the evidence on record, had come to the conclusion that the claim of prescription of the Respondent Nos.1 to 12, 16 and 17 has no substance as, according to the learned Judge, at para 27 thereof, the learned Judge had given specific instances which according to the learned Senior Counsel curl out from the evidence on record to establish that the Appellants were in possession of the suit property. The learned Senior Counsel has taken me through the Judgment of the Lower Appellate Court and pointed out that the learned Judge has not at all considered as to whether the findings to that effect are erroneous or any reasons given to unsettle the said findings arrived by the learned Trial Judge. Learned Senior Counsel as such submits that considering that the learned Judge has not considered the matter in accordance with the provisions of Order 41 Rule 31 of the Civil Procedure Code and no points for determination were framed, it would be appropriate that the third substantial question of law be decided in favour of the Appellants and as such the matter be remanded back to the Lower Appellate Court to reconsider the Appeal filed by the Respondent Nos.1 to 12, 16 and 17 afresh, in accordance with law. 4. On the other hand, Shri Thali, learned Counsel appearing for the Respondents, has supported the impugned Judgment. Learned Counsel has pointed out that the claim of the Plaintiffs/Respondent Nos.1 to 12, 16 and 17 with regard to their claim of prescription has to be dealt with under the provisions of the Portuguese Civil Code. Learned Counsel has further pointed out that according to the Respondents, they were continuously in possession of the suit property for a period of more than forty years openly and without any objection from anyone and, as such, according to the learned Counsel, the Respondents have right to the suit property by acquisitive prescription is in favour of the said Respondents under Article 529 of the Portuguese Civil Code. Learned Counsel further pointed out that the very fact that such possession has lasted for a period of forty years, by itself would be enough for the Respondents to claim acquisitive prescription of title over the suit property. Learned Counsel further pointed out that the Lower Appellate Court whilst disposing of the First Appeal preferred by the said Respondents, has in fact considered the evidence adduced by the Appellants and the Respondents and has come to the conclusion that the Respondents have established their claim of prescription. Learned Counsel further pointed out that considering that the Lower Appellate Court has taken into consideration the evidence adduced by the Appellants and the Respondents, there is no question of any re-appreciation of evidence by this Court in exercise of its powers under Section 100 of the Civil Procedure Code. Learned Counsel further pointed out that whilst disposing of the suit filed by the Respondent Nos.1 to 12, 16 and 17, the learned District Judge on 11.07.1984, had set aside the Judgment only on the ground that the Decree is a nullity in view of the death of the Defendant no.2, but, however, the findings of the learned Trial Judge to the effect that the said Respondents had established their claim of right of prescription over the suit property, have not been set aside. Learned Counsel further pointed out that in any event, after the remand, this Court whilst disposing of the revision preferred by the Respondents challenged the Order of the learned Trial Court refusing to set aside abatement had found that there was no need of bringing of the legal representatives of the Defendant no.2 on record. The learned Counsel as such submits that the findings arrived at by the learned Trial Judge at the initial stage, was in favour of the Respondents. Learned Counsel has taken me through the Judgments passed by the Lower Appellate Court and pointed out that the learned Judge has rightly appreciated the evidence on record and has come to the correct conclusion that the said Respondents have established their right of prescription over the suit property. As such, the learned Counsel submits that there is no merit in the above Appeal and, consequently, the same deserves to be rejected. 5. As such, the learned Counsel submits that there is no merit in the above Appeal and, consequently, the same deserves to be rejected. 5. After hearing the learned Counsel appearing for the respective parties and on perusal of the impugned Judgments and material adduced by the respective parties as well as the pleadings of the parties, I will deal with the substantial question of law referred to herein above. With regard to the first substantial question of law and taking note of the contention of the learned Senior Counsel appearing for the Appellants, it cannot be disputed that the right of the Respondent Nos.1 to 12, 16 and 17 to claim prescription, would be governed by the provisions of the Portuguese Civil Code and, consequently, the duration of the possession for such claim would be governed by the provisions of the Portuguese Civil Code. Whether the right to file the suit for declaration would be governed under the provisions of the Specific Relief Act 1963, is a matter which would depend on whether the right to claim such claim has interrupted or lost. In the facts and circumstances of the case, the point to be ascertained is whether a declaration under the provisions of Specific Relief Act, 1963, is at all required in a suit based on prescriptive title and restoration of possessions. Taking into consideration the view taken in the present Appeal, I find it appropriate that this dispute will have to be considered by the Lower Appellate Court after hearing the parties in accordance with law. The first substantial question of law framed is answered accordingly. 6. With regard to the second substantial question of law, taking into consideration the submissions of Shri J.E. Coelho Pereira, learned Senior Counsel appearing for the Appellants, the findings of the earlier suit being res-judicata in the present proceedings does not arise at all. The second substantial question of law is answered accordingly. 7. With regard to the third substantial question of law, Shri J.E. Coelho Pereira, learned Senior Counsel appearing for the Appellants, is justified to contend that the Lower Appellate Court whilst deciding the First Appeal has not scrutinized every piece of evidence adduced by the parties to come to the conclusion that the Respondent Nos.1 to 12, 16 and 17, have established their claim. On perusal of the Judgment passed by the learned Trial Judge, I find that on the basis of the material on record, the learned Trial Judge had come to the specific conclusion at para 27 of the impugned Judgment. On perusal of the Judgment of the learned Lower Appellate Court, I find no reason at all as to whether the findings arrived at by the learned Trial Judge, are accepted or set aside for any specific reason. It is incumbent upon the Lower Appellate Court to scrutinise every piece of evidence and in cases in which the Lower Appellate Court finds it appropriate to set aside the Judgment of the Trial Court, it is important for the Lower Appellate Court to give specific reasons as to why the findings arrived at by the learned Trial Judge are not accepted. 8. In the present case, on going through the Judgment of the Lower Appellate Court, I find that the Lower Appellate Court has only broadly decided the matter in controversy without going into the material on record. In fact, one of the aspect which is to be noted is that it is the consistent case of the Appellants that there was a Lease executed by the father of the Appellants in favour of the Respondent no.1. This aspect was accepted by the learned Trial Judge whilst deciding the suit filed by the Respondent Nos.1 to 12, 16 and 17. The Lower Appellate Court has not even considered this aspect nor gave any reasons why these findings are not accepted. The Apex Court in the Judgment reported in 2010 (13) S.C.C 530 in the case of B.V. Nagesh and Another vs. H.V. Sreenivasa Murthy has held at Para 4 thus : "4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions out forth, and pressed by the parties for decision of the appellate court. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions out forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, SCC p. 188, para 15 and Madhukar v. Sangram, SCC p. 758, para 5.)" In another Judgment of the Apex Court reported in 2011 (3) S.C.C. 545 , in the case of Parimal v. Veena, the Apex Court has held at para 25 and 26 thus : "25. Order 41 Rule 31 CPC provides for a procedure for deciding the appeal. The law requires substantial compliance with the said provisions. The first appellate court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts. (Vide Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, Sukhpal Singh v. Kalyan Singh, Santosh Hazari v. Purushottam Tiwari, Madhukar v. Sangram, G. Amalorpavam v. R.C. Diocese of Madurai, Shiv Kumar Sharma v. Santosh Kumari and Gannmani Anasuya v. Parvatini Amarendra Chowdhary)." "26. The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court's judgment without opening the whole case for rehearing both on question of facts and law. The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court's judgment without opening the whole case for rehearing both on question of facts and law. More so, the appellate court should not modify the decree of the trial court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate court would fall short of considerations expected from the first appellate court in view of the provisions of Order 41 Rule 31 CPC and such judgment and order would be liable to be set aside. (Vide B.V. Nagesh v. H.V. Sreenivasa Murthy)." 9. In the present case, on perusal of the Judgment passed by the Lower Appellate Court, I find no such exercise as emphasized the Apex Court in the cases of B. V. Nagesh and Another vs. H. V. Sreenivasa Murthy and Parimal v. Veena (supra), have been done by the Lower Appellate Court whilst passing the impugned Judgment. The Lower Appellate Court ought to have specifically gone into the findings of the learned Trial Judge and independently scrutinized the evidence on record to come to definite findings on the claim of prescription by the Appellants and Respondents. Without going into the merits or otherwise to the rival contentions of the parties with regard to the claim of the Respondent Nos.1 to 12, 16 and 17 of prescription, I find it appropriate that the Lower Appellate Court be directed to decide the First Appeal filed by the Respondent Nos.1 to 12, 16 and 17 afresh in the light of the observations made herein above, after hearing the parties in accordance with law. All contentions of the parties with regard to the claim of prescription filed by the said Respondents are left open. The third substantial question of law is answered accordingly. 10. In view of the above, I pass the following : (i) The appeal is partly allowed. (ii) The impugned Judgment and Decree passed by the Lower Appellate Court dated 04.04.2001, is quashed and set aside to the extent referred to above. (iii) Regular Civil Appeal No.21/1991, is restored to be file of the learned First Appellate Court. (iv) The learned First Appellate Court is directed to decide the said Appeal afresh with the light of the observations made herein above in accordance with law, preferably within six months. (iii) Regular Civil Appeal No.21/1991, is restored to be file of the learned First Appellate Court. (iv) The learned First Appellate Court is directed to decide the said Appeal afresh with the light of the observations made herein above in accordance with law, preferably within six months. (v) All the contentions on merits as regards to the claim of prescription by the Respondent Nos.1 to 12, 16 and 17 are left open. (vi) Appeal stands disposed of according with no orders as to costs. (vii) Parties are directed to appear before the Lower Appellate Court on 16.04.2012 at 10.00 a.m.