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2013 DIGILAW 1430 (BOM)

Kashibai Hadfadkar v. Melita Rosari Pinto

2013-07-26

A.P.LAVANDE

body2013
JUDGMENT A.P. Lavande, J.- Heard Mr. J.P. Mulgaonkar, learned Advocate for the appellants and Mr. J.E. Coelho Pereira, learned Senior counsel for respondent Nos. 1 to 9. 2. By this Second Appeal, the appellants challenge the judgment and decree dated 3rd March, 2003 passed by Additional District Judge, Mapusa in Regular Civil Appeal No. 44/1993 by which the appeal preferred by respondent Nos. 1 to 9 against the judgment and decree dated 15th March, 1993 passed by the Civil Judge, Junior Division, Mapusa, in Regular Civil Suit No. 141/1983/C has been set aside and the suit filed by respondent Nos. 1 to 9 has been decreed. 3. The appellants are defendant Nos. 1 and 2 and respondent Nos. 1 to 9 are the original plaintiffs and respondent Nos. 10 to 13 are defendant Nos. 3 to 6 in the suit. 4. The parties shall hereinafter be referred to as per their status before the trial Court. 5. The plaintiffs filed the above suit seeking following reliefs;- "(a) That this Hon'ble Court may be pleased to pass a decree that the sale deed dated 24/4/1981 registered in the office of the Sub-Registrar of Bardez under No. 421 at pages 324 to 328 of book No.1 vol. 161 dated 18.6.1981 executed between the said late Agnelo Bonafacio Santana Pinto and the defendant No.2 be declared as null and void. a. (1) Hon'ble Court be pleased to pass an order and decree for eviction of the defendant No. 2 and any other person on his behalf including defendant No. 1 for the structure in the suit property and the suit property. (a) 1(i) Hon'ble Court be pleased to pass an order and decree for eviction of the defendant No. 2 and any other person on his behalf including defendant No. 1 for the structure in the suit property. b. (2) For mesne profit at the rate of Rs.100/- from month of June, 1983 till final payment and Rs.900/- from month of August, 1988. (b) (ii) For mesne profit at the rate of Rs.100/- from month of June, 1983 till final payment. (b) That this Court be pleased to pass a decree of permanent injunction restraining the defendants Nos. b. (2) For mesne profit at the rate of Rs.100/- from month of June, 1983 till final payment and Rs.900/- from month of August, 1988. (b) (ii) For mesne profit at the rate of Rs.100/- from month of June, 1983 till final payment. (b) That this Court be pleased to pass a decree of permanent injunction restraining the defendants Nos. 1 and 2, their a agent, servants and family members from interfering in any manner with the suit property and restraining them from carrying out any constructions, demolition of structure in the suit property and/or restraining them from cutting any trees existing in the suit property and damaging the suit property. (c) That pending the hearing and final disposal of the suit, this Court be pleased to pass an order for ex parte temporary injunction in terms of above prayer (b); (d) that the defendant No.2 may be decreed and ordered by mandatory injunction from demolishing the construction made by him in the suit property. (e) For costs of this suit. (f) any other relief which this Hon'ble Court may deem fit." 6. Briefly, the case of the plaintiffs was that the suit property belonged to them by virtue of allotment in inventory proceedings held on the death of late Maria Etelvina Godinho and the suit property was recorded at item No. 4 and was allotted to the plaintiffs and to one Mr. Agnelo Pinto. The plaintiffs sought the above referred reliefs in the suit. The suit was contested by defendant Nos. 1 and 2 by filing Written Statement. The defendant Nos. 1 and 2 claimed right to the suit property to the extent of the part of the suit property bearing survey No. 3/11 situated at Olaulim. It is pertinent to note that initially, the plaintiffs claimed that one of the suit properties was bearing survey No. 13/11 and later on by amendment substituted the same with 3/11. 7. It is specifically the case of defendant Nos. 1 and 2 that the plaintiffs absolutely had no right to the suit property bearing survey No. 3/11. Defendant Nos. 3 to 7 in the suit, were ex parte and did not take part in the proceedings. 8. Learned trial Court framed following issues:- "1. Whether the plaintiff proves that they and the defendant Nos. 3 to 7 are co-owners of the property described in para 2 of the plaint? 2. Defendant Nos. 3 to 7 in the suit, were ex parte and did not take part in the proceedings. 8. Learned trial Court framed following issues:- "1. Whether the plaintiff proves that they and the defendant Nos. 3 to 7 are co-owners of the property described in para 2 of the plaint? 2. Whether the plaintiff proves that sale deed dated 24.4.1981 executed by Agnelo Bonifacio Santana Pinto in favour of the defendant No. 2 and which is registered in the office of Sub Registrar of Bardez under No. 421 at pages 324 to 328 of Book I vol., No. 161, dated 18.6.81 is null and void? 3. Whether plaintiffs proves that defendant No.1 and 2 has illegally constructed walls of the middle compartment of suit structure on 15.5.93 and started selling liquor in it? 4. Whether the plaintiff proves that they are entitled for mesne profit of Rs.100/- per month from June, 1983 till their eviction? 5. Whether the plaintiff proves that they are entitled to recover Rs.900/- per month from August, 1988 till payment from Defendant No.2 till his eviction from suit room? 6. Whether the plaintiff proves that they are entitled for the relief claimed? 7. Whether defendant proves that defendant No. 2 has repaired the walls of existing structure situated in survey No. 3/11 and not in the suit property? 8. What relief? What order?" 9. Both the parties led documentary and oral evidence. Learned trial Court held that the plaintiffs had failed to prove the title in respect of survey No. 3/11, however, the plaintiffs had proved the title in respect of survey No. 49/12. However, the trial Court chose to dismiss the entire suit including the prayer of permanent injunction in respect of survey No. 49/12. 10. Aggrieved by the judgment and decree passed by the learned trial Court, the original plaintiffs filed Regular Civil Appeal No. 44/1993 to the District Court, North Goa, Panaji which was made over to the Additional District Judge, Mapusa. 11. Learned lower appellate Court framed the following points for determination:- "1. Whether the trial Court fell in error in appreciating the material on record including the documents and in the ultimate in passing the impugned judgment and decree? 2. Whether the impugned judgment and decree is illegal arbitrary or perverse?" 12. 11. Learned lower appellate Court framed the following points for determination:- "1. Whether the trial Court fell in error in appreciating the material on record including the documents and in the ultimate in passing the impugned judgment and decree? 2. Whether the impugned judgment and decree is illegal arbitrary or perverse?" 12. The appeal was admitted on the following substantial question of law:- "Whether the points for determination as stated in the impugned judgment, namely, whether the trial Court fell in error in appreciating the material on record including documents and whether the judgment and decree of the trial Court is illegal arbitrary and perverse are too general and vague and do not cover the exact questions arising in the case and do not comply with the requirement of Order 41 Rule 31 of the Code of Civil Procedure and the law as laid down by the Honourable Court in the matter of stating of the points for determination for complying with the object behind Order 41, Rule 31." 13. Mr. Mulgaonkar, learned counsel appearing for the appellants submitted that the lower appellate Court has not exercised its jurisdiction in accordance with the settled principles laid down by the a Apex Court, more particularly in the case of Santosh Hazari v. Purushottam Tiwari, reported in (2001) 3 SCC 179 . Learned counsel further submitted that the lower appellate Court has not framed proper points for determination arising in the appeal and points for determination are too general in nature which ultimately led to the findings being recorded against the appellants, contrary to the evidence led by the parties and also ignoring the pleadings of the parties. Learned counsel invited my attention to the pleadings of the parties and submitted that the main issue before the lower appellate Court was whether the plaintiffs have proved their title in respect of part of suit property bearing survey No. 3/11 in respect of which the plaintiffs had not produced any documents to prove their title. Learned counsel, therefore, submitted that serious prejudice has been caused to the defendant Nos. 1 and 2 by non-framing of appropriate points for determination resulting in not appreciating the evidence on record as expected of first appellate Court in terms of the judgment of the Apex Court in the case of Santosh Hazari (supra). Learned counsel, therefore, submitted that serious prejudice has been caused to the defendant Nos. 1 and 2 by non-framing of appropriate points for determination resulting in not appreciating the evidence on record as expected of first appellate Court in terms of the judgment of the Apex Court in the case of Santosh Hazari (supra). Learned counsel, therefore, submitted that this is a fit case in which the matter deserves to be remanded to lower appellate Court for fresh decision in accordance with the principles laid down by the Apex Court in the c case of Santosh Hazari (supra). Mr. Mulgaonkar placed reliance upon judgment of the Apex Court in the case of G. Amalorpavam And others v. Madurai and others, reported in (2006) 3 SCC 224 . 14. Per contra. Mr. J.E. Coelho Pereira, learned senior counsel appearing for respondent Nos. 1 to 9 supported the impugned judgment and decree and submitted that no fault can be found with the impugned judgment and decree since the lower appellate Court has correctly appreciated the evidence, oral and documentary led by the parties and arrived at just conclusion which does not warrant interference in the second appeal. Learned counsel further submitted that merely because points for determination are not correctly framed, the same by itself would not be a sufficient ground to set aside the judgment and decree of the lower appellate Court inasmuch as the lower appellate Court has appreciated the evidence led by both the parties and as such, no remand is warranted, on technical ground that no proper points for determination are framed by the lower appellate Court. 15. I have carefully considered the rival submissions, perused the record and the judgment relied upon. 16. There can be no dispute with this proposition that the decree passed by the lower appellate Court is not liable to be interfered with in the Second Appeal on the sole ground that point for determination under Order 41, Rule 31 of CPC has not been properly formulated and in case. even if the lower appellate Court does not frame proper point for determination but in the course of analysing the evidence, addresses itself to material evidence led by the parties and arrives at a right conclusion, mere non-framing of proper point for determination by itself would not be sufficient, to justify interference in exercise of jurisdiction under Section 100 of CPC. 17. 17. Having regard to the settled law laid down by the Apex Court, the jurisdiction of this Court under Section 100 of CPC is limited and governed by predicates laid down in Section 100 of CPC Bearing in mind the above principle. I have perused the impugned judgment. The trial Court has recorded a categorical finding that the plaintiffs have not been able to establish their title to the part of the suit property bearing survey No. 3/11 on the basis of documents produced by the plaintiffs from which it is evident that item at serial No.4 was allotted in favour of the plaintiffs and late Agnelo in equal shares. 18. Perusal of the judgment of the lower appellate Court discloses that the lower appellate Court has not addressed on this aspect of the matter and proceeded to analyse the evidence and give finding thereon ultimately holding in favour of the plaintiffs. In the case of Santosh Hazan (supra), the Apex Court in paragraph 15 has categorically dealt with as to how the first appellate Court should deal with the appeal preferred from a decree passed by the trial Court. The Apex Court has c held that 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 the 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 put forth, and pressed by the parties for decision of the appellate Court. The Apex Court further held that the task of an appellate Court affirming the findings of the trial Court is an easier one. 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; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. But while writing a judgment of reversal the appellate Court must remain conscious of two principles. The findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. But while writing a judgment of reversal the appellate Court must remain conscious of two principles. The findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. It is well settled that the first appellate Court is the final Court on both fact and law and unless substantial question of law is involved in the matter, there is no question of interfering with the judgment of the first appellate Court in Second Appeal by the High Court in exercise of its jurisdiction a under Section 100 of CPC 19. In the present case, in my view, Mr. Mulgaonkar is justified in making a grievance that by non-framing of proper point for determination, serious prejudice has been caused to the appellants/defendant Nos. 1 and 2 inasmuch as the evidence led by the parties has not been appreciated in proper perspective as expected of the Court exercising jurisdiction as first appellate Court. Though above, there can be no dispute that mere non framing of proper point for determination in a first appeal by itself would not justify interference by the High Court b under Section 100 of C.P.C, but in the present case, in my view interference is warranted inasmuch as the lower appellate Court has not exercised its jurisdiction in accordance with settled principles laid down by the Apex Court in the case of Santosh Hazan (supra). Therefore, in my view, it would be just and proper to set aside the judgment of the lower appellate Court and remand the matter to the lower appellate Court for fresh decision bearing in mind the principles laid down by the Apex Court in the case of Santosh Hazan (supra). 20. In view of the above, the substantial question of law is answered in favour of the appellants. 20. In view of the above, the substantial question of law is answered in favour of the appellants. Consequently, the judgment and decree dated 3rd March, 2003 passed by the lower appellate Court is quashed and set aside. The matter is remanded to lower appellate Court for decision in the light of the observations made herein above. 21. Considering that the suit is of the year 1983 and the appeal was filed before the lower appellate Court in the year 1993, the lower appellate Court to dispose of the appeal expeditiously and in any case, on or before 30th December, 2013. 22. Parties to appear before the lower appellate Court on 26th August, 2013 at 10.00 a.m. 23. It is made clear that I have not given finding on the merits of the rival contentions of the parties and all the contentions of the parties are kept open, to be decided by the lower appellate Court in the light of the observations made above. 24. The appeal stands disposed of with no order as to costs.