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2013 DIGILAW 1005 (BOM)

Rui Jose D’Gama v. Rama Pandurang Sawant

2013-05-10

A.P.LAVANDE

body2013
JUDGMENT Heard Mr. Coelho Pereira, learned Senior Counsel for the appellants and Mr. Menezes, learned Counsel for respondents. 2. By this Second Appeal, the appellants take exception to the judgment and decree dated 24/08/2010 passed by the Ad hoc District Judge-I, FTC, Panaji in Regular Civil Appeal No. 74/2008 by which the appeal preferred against the judgment and decree dated 16/08/2008 in Regular Civil Suit No. 193/2001/B passed by learned Civil Judge, Senior Division, Mapusa, has been dismissed. 3. The appellants are the defendants in the above suit filed by respondents seeking declaration and permanent injunction. 4. The parties shall hereinafter be referred to as per their status before the learned trial Court. 5. The plaintiffs claimed declaration that they have acquired right of way to the property bearing Survey No. 152/22 belonging to the defendants by way of prescription in terms of Section 15 of the Easement Act, 1882 ('the Act' for short). The suit was contested by the defendants. 6. The trial Court framed the following issues : "(i) Whether the plaintiffs prove that the suit access is used by the plaintiffs peacefully, openly and continuously as a matter of right as an easement without any interruption for last more than 22 years to go to the public road from the suit property ? (ii) Whether the plaintiffs prove that the suit access is the only access available for the plaintiffs to go to the public road? (iii) Whether the plaintiffs prove that the defendants are intending to construct a compound wall, on the suit access? (iv) What relief? What order?" 7. Both the parties led evidence and upon appreciation of the evidence, oral and documentary, the trial Court decreed the suit. 8. Appeal was preferred to the District Court, North Goa, Panaji which was made over to Ad hoc District Judge-I, North Goa, Panaji who by the impugned judgment and decree, dismissed the appeal. 9. Mr. Coelho Pereira, learned Senior Counsel for the appellants submitted that the lower appellate Court neither formulated points for determination arising in the appeal nor analysed the evidence led by the parties, as required by law and more particularly as laid down by the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari; (2001)1 SCC 179. 9. Mr. Coelho Pereira, learned Senior Counsel for the appellants submitted that the lower appellate Court neither formulated points for determination arising in the appeal nor analysed the evidence led by the parties, as required by law and more particularly as laid down by the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari; (2001)1 SCC 179. Learned Senior Counsel took me through the impugned judgment of the lower appellate Court and relevant evidence, and submitted that whole approach of the lower appellate Court, is contrary to the law laid down by the Apex Court in the case of Santosh Hazari (supra). Learned Senior Counsel further submitted that being the last Court of fact, the first appellate Court is bound to address itself on the point arising for determination in the matter and thereafter, analyse the evidence, oral and documentary and record findings based on law applicable. According to learned Senior Counsel, this exercise admittedly has not been done by the lower appellate Court and the impugned judgment is totally contrary to the principles laid down by the Apex Court in the case of Santosh Hazari (supra). 10. Per contra, Mr. Menezes, learned Counsel appearing for the respondents/plaintiffs submitted that though point for determination has not been properly formulated by the lower appellate Court, the lower appellate Court has addressed itself to the real matters in controversy between the parties and has analysed the evidence in proper perspective and, therefore, no case is made out for interference with the impugned judgment and decree. 11. The Apex Court in the case of Santosh Hazari (supra), in paragraph 15, has observed that first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing on both questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by the reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate Court. The Apex Court further held that the appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court. The Apex Court further held that the appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court. The Apex Court sounded a note of caution that expression of general agreement with the findings recorded in the judgment under appeal should not be device or camouflage adopted by the appellate Court for shirking the duty cast on it. If the judgment of the Apex Court is tested on the principles laid down by the Apex Court in the case of Santosh Hazari (supra), in my view, I find merit in the submission made by Mr. Coelho Pereira that not only the lower appellate Court has not properly formulated points for determination arising in the matter but also has not analysed the evidence led by both the parties in proper perspective, as required by the first appellate Court in terms of the law laid down by the Apex Court in the case of Santosh Hazari (supra). Therefore, in my opinion, the following substantial question of law arises in the matter : “Whether the judgment and decree of the lower appellate court is vitiated on account of non-consideration of the matter in the light of the principles laid down by the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari; (2001) 1 SCC 179 and therefore, the matter deserves to be remanded to the lower appellate Court ?” 12. As stated above, Mr. Menezes, learned Counsel appearing for the respondents submitted that though the lower appellate Court did not frame point for determination but has correctly analysed the evidence led by both the parties and has correctly come to the conclusion and no fault can be found with the impugned judgment and decree of the trial Court. However, I am unable to accept the submission made by learned Counsel on behalf of the respondent. At this stage, Mr. Menezes submitted that in view of the question of law formulated, he will have no objection if the appeal is disposed of at the admission stage, by remanding the matter to the lower appellate Court for fresh consideration. In view of the statement made by Mr. Menezes and with his consent, the appeal is admitted and taken up for final disposal. 13. In view of the statement made by Mr. Menezes and with his consent, the appeal is admitted and taken up for final disposal. 13. In the result, therefore, the Judgment and decree dated 24/08/2010 passed by the lower appellate Court is set aside and the matter is remanded to the lower appellate Court for fresh consideration. The lower appellate Court is directed to frame proper point/points for determination arising in the matter and thereafter, analyse the evidence led by both the parties in the light of the principles laid down by the Apex Court in the case of Santosh Hazari (supra). 14. The lower appellate Court shall deal with the matter on its own merits in the light of the principles laid down by the Apex Court in the case of Santosh Hazari (supra). Considering that the suit was filed in the year 2001, the lower appellate Court shall dispose of the First Appeal expeditiously and in any case, within a period of six months from the date of the appearance of the parties. 15. The parties shall appear before the lower appellate Court on 18/06/2013 at 10.30 a.m. 16. The appeal stands disposed of in aforesaid terms with no order as to costs. Ordered accordingly.