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2013 DIGILAW 2215 (BOM)

Alicia Maria Crasto v. Quiteria Fernandes

2013-10-21

R.M.SAVANT

body2013
JUDGMENT R.M. Savant, J.- The above Second Appeal takes exception to the judgment and decree dated 16/03/2012 passed by the learned District Judge-I, FTC, South Goa, Margao, by which, the judgment and decree passed by the Trial Court dated 23/12/2010 in Regular Civil Suit No. 293/1989 /D, came to be confirmed. 2. The suit in question being Regular Civil Suit No. 293/1989/D was filed for the permanent and mandatory injunction. The bone of contention is a passage of 2.5 metres' width. It is the case of the plaintiff that she is having residential house in the property bearing Survey No. 85/11 which house has been constructed more than 70 years back by her father and in the year 1987, she purchased a part of the property surrounding her house from the original owner. It is further the case of the plaintiff that there is katcha PWD mud road lying to the eastern side of Survey No. 85/13 which is at a distance of 20 metres from the compound wall of the plaintiffs house and there is an opening in the said compound wall to go to the said road and in order to proceed to her house, one has to come from eastern side of the compound wall where there is the said access of 2.5 mts which a is the suit access. It is the case of the plaintiff that the said access is existing since the time of her ancestors and the same is used by her as of right. It is further the case of the plaintiff that she has constructed a compound wall as per the plan approved by the Village Panchayat in respect of which the defendant No. 2 also gave no objection and the said suit access of 2.5 metres leading to her house is shown in the plan approved by the Village Panchayat. It is the case of the plaintiff that somewhere in the month of May, 1989, the defendant Nos. 1 and 2 closed the said access leading to her house by erecting a bomboo fence right in front of the opening of the compound wall on the eastern side which matter was reported to the Executive Magistrate, upon which the defendant No. 1 agreed to open the original access by removing the obstruction and hence, the matter was settled. It is further the case of the plaintiff that the defendant Nos. It is further the case of the plaintiff that the defendant Nos. 1 and 2 again in September, 1989, closed the access due to which the plaintiff again approached the Executive Magistrate, who directed the defendants to open the access leading to her house from the katcha PWD road. It is the further the case of the plaintiff that the defendant Nos. 1 and 2 on 15/12/1989 planted coconut saplings and two plants on the access, due to which the access was narrowed down making it difficult for the plaintiff to pass as the access is reduced to less than 40 cms. It is further the case of the plaintiff that the defendants have also put up a bamboo fence light in front of the opening of her compound wall and thereby encroached on the access and due to this encroachment, it has become difficult for the plaintiff to bring water from the well existing in the property of one Jose Luis Leitao as the well water is used by the plaintiff for drinking and other purposes. 3. The defendants No. 1 and 2 filed their written statement denying the case of the plaintiff. It was the case of the defendants that the PWD road approach to which the plaintiff claims access by the 2.5 metres access, is recently laid in August, 1989 and is not a PWD road. It is the case of the defendants that the plaintiff had only one access and that was on the rear side which was meant to go to well and even the house of the plaintiff was facing the north and has an entrance gate in front of her house to go to the PWD road from the main entrance. The defendants have denied the existence of suit access or that it is used by the plaintiff as of right. It is their case that their exists footpath for the plaintiff to go to the well from eastern side of compound wall, but the opening is on the rear side of the house. Insofar as the No Objection Certificate ('NOC' for short) is concerned, it is the case of the defendants that the plaintiff had misrepresented the defendant No.2 and obtained NOC and also misrepresented the Village Panchayat and got the licence in her favour for construction of the compound wall. Insofar as the No Objection Certificate ('NOC' for short) is concerned, it is the case of the defendants that the plaintiff had misrepresented the defendant No.2 and obtained NOC and also misrepresented the Village Panchayat and got the licence in her favour for construction of the compound wall. It is their case that at no point of time, the plaintiff had access to the front side of her house. It appears that the defendant No. 1(a), who was subsequently impleaded, filed a separate written statement also denying the case of the plaintiff and it was the case of the defendant No. 1(a) that the plaintiff has an access through the footpath existing in her property and it is connected towards the north near the Holy Cross Chapel where there is public footpath. It is also the case of the said defendant that there is no opening of 2.5 metres to the compound wall of the plaintiff and within 1.5 metres, there are fully grown. yielding coconut trees existing at the time of purchase of the plot by the defendant No. 1. 4. It is on the basis of the aforesaid pleadings that the parties went to the Trial. The plaintiff examined three witnesses i.e. herself, one Franco Martins and one Krishna Prabhudessai whereas the defendants examined two witnesses i.e. DW1/Luis Fernandes and DW2/Esmira Barreto. 5. Considering the pleadings on record, the Trial Court framed the issues. Amongst the issues, was the issue No. 1 which can be said to be the main issue insofar as the case of the plaintiff is concerned. The said issue reads as under : "1. Whether the plaintiff proves that the plaintiff has an access for 2.5 metres from the eastern side of her compound wall to go the PWD mud road for last more than 70 years?" 6. The Trial Court, on the basis of the material on record, held that though the existence of the access is proved, by the plaintiff, the width of 2.5 metres claimed by the plaintiff is not proved. The Trial Court in support of the said finding, relied upon the undertaking dated 24/05/1989 which was signed by the defendant No.1 in which, there is reference to an access to the plaintiff on the eastern side. The Trial Court in support of the said finding, relied upon the undertaking dated 24/05/1989 which was signed by the defendant No.1 in which, there is reference to an access to the plaintiff on the eastern side. The Trial Court further held that the defendants had not adduced any cogent evidence to rebut the documents, which are at exhibit 67 and 68 which documents, according to the Trial Court, clearly prove that the access to the plot of the plaintiff is on the eastern side. The Trial Court also recorded a finding that the case of the defendants that the PWD road was constructed in August, 1989, is also falsified by the evidence on record and, therefore, had answered the issue No.4 accordingly. The Trial Court, however, principally on the ground that the plaintiff, though has proved the access, has not proved that there was an access of 2.5 metres, non-suited the plaintiff and accordingly dismissed the suit by the judgment and order dated 23/12/2010. 7. The aggrieved plaintiff carried the matter in Appeal by filing Regular Civil Appeal No. 19/2011. The Lower Appellate Court, as can be seen from the impugned judgment and decree, has approached the matter from totally different angle from the one of the Trial Court. The Lower Appellate Court has approached the angle from the point as to whether the plaintiff proves the easement of necessity insofar as the suit access is concerned and thereafter has also approached it from a the point that whether the suit access was enjoyed by the plaintiff as an easementary right, though the easement of necessity or easementary right was never tile case of the plaintiff. The Lower Appellate Court has not framed the points for determination in the Appeal considering the issues that were framed by the Trial Court and the findings that were recorded by the Trial Court. The Lower Appellate Court, as can be seen, has framed the following two points: "1. Whether the plaintiff proves before the trial Court that she has easementary right over the suit access? 2. Whether the learned trial Judge erred in dismissing the suit?" 8. The Lower Appellate Court has dismissed the Appeal on the ground that the plaintiff has not proved the easement of necessity or that she had any easementary right in respect of the said access of 2.5 metres. 2. Whether the learned trial Judge erred in dismissing the suit?" 8. The Lower Appellate Court has dismissed the Appeal on the ground that the plaintiff has not proved the easement of necessity or that she had any easementary right in respect of the said access of 2.5 metres. This, as indicated above, was totally a different ground than the ground on which the plaintiff has been non-suited by the Trial Court. At the cost of repetition, it is required to be stated that the Trial Court has non-suited the plaintiff on the ground that though she has proved that she had access on the eastern side, she has not proved that the access is of 2.5 metres, which is the case in the suit. Hence, Admit on the following substantial question of law: "Whether the Lower Appellate Court has followed the mandate of Order XLI, Rule, 31 of the C.P.C. whilst adjudicating upon the Appeal in question ?" 9. Mr. C.A. Ferriera, the learned Counsel waives notice on behalf of the respondents No. 1 and 2 herein i.e. the original defendants No. 1 and l(a). The other respondents are served. Taken up for hearing forthwith. 10. Insofar as the powers of the Appellate Court are concerned, it would be relevant to refer to Order XLI, Rule 31 of the C.P.C. "O. XLI. Rule 31. Contents, date and signature of judgment.- The judgment of the Appellate-Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." 11. It is, therefore, required of the Lower Appellate Court that it frames the points for determination and gives decision thereon and the reasons for the said decision. The points for determination, therefore, obviously cannot be de hors the issues, which have been determined by the Trial Court. In the instant case, as can be seen, the Lower Appellate Court has only framed two points, amongst which the point No. 1 has no connection with the issues, which have been framed by the Trial Court. 12. Insofar Order XLI. In the instant case, as can be seen, the Lower Appellate Court has only framed two points, amongst which the point No. 1 has no connection with the issues, which have been framed by the Trial Court. 12. Insofar Order XLI. Rule 31 of the C.P.C. is concerned, useful reference could be made to the judgments of the Apex Court reported in 2011 (4) SCC 240 in the matter of H. Siddiqui (dead) by Lrs. v. A. Ramlingam, and (2001) 3 SCC 179 in the matter of Santosh Hazari v. Purushottam Tiwari which judgments are an exposition of the Apex Court on the powers of the Appellate Court under Order XLI, Rule 31 of the C.P.C. The Apex Court has held that the First Appellate Court being the final Court of fact, it must give reasons for its decision on each point independently to that of the Trial Court. The Apex Court has further held that the First Appeal is a valuable right. Insofar as the judgment in the case of H. Siddiqui (supra) is concerned, paragraph 21 is material and is reproduced hereunder : "21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide Sukhpal Singh v. Kalyan Singh, AIR 1963 SC 146 ; Girijanandini Devi v. Bijendra Narain Chaudhary, AIR 1967 SC 1124 ; G. Amalorpavam v. R.C. Diocese of Madurai, (2006) 3 SCC 224 ; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600 and Gannmani Anasuya v. Parvatini Amarendra Chowdhary, (2007) 10 SCC 296 .)" Insofar as the judgment in the case of Santosh Hazari (supra) is concerned, paragraph 15 is material and is reproduced hereunder : "15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for reheating 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 put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. 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 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 (See Girijanandini Devi v. Bijendra Narain Chaudhary, AIR 1967 SC 1124 . We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, 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 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. (See Madhusudan Das v. Narayanibai, (1983) 1 SCC 35 . The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses. then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one." 13. In the instant case, as indicated above, the Lower Appellate Court has approached the Appeal from a different angle namely whether the plaintiff has proved easement of necessity and whether the plaintiff has any easementary right insofar as the said access is concerned. The said case has not even been pleaded by the plaintiff. The Trial Court, as indicated above, had in the light of the pleadings, framed the issue as to whether the plaintiff proves that the she has an access of 2.5 metres on the eastern side. The said case has not even been pleaded by the plaintiff. The Trial Court, as indicated above, had in the light of the pleadings, framed the issue as to whether the plaintiff proves that the she has an access of 2.5 metres on the eastern side. In my view, therefore, the decree passed by the Lower Appellate Court, having been passed without following the mandate of Rule 31 of Order XLI of the C.P.C., would have to be set aside and the matter would have to be relegated back to the Lower Appellate Court for a decision afresh. The question of law accordingly stands answered. Hence, the following directions : (i) The impugned judgment and decree of the Lower Appellate Court is quashed and set aside. The matter is relegated back to the Lower Appellate Court. (ii) The Lower Appellate Court to frame appropriate points for determination in the light of the issues, which have been framed by the Trial Court and adjudicated upon. (iii) The Lower Appellate Court to render its finding on the said points. (iv) The contentions of the parties on all the issues, are kept open for being urged before the Lower Appellate Court. (v) On remand, the Lower Appellate Court to hear and decide the Appeal within a period of six months. (vi) The parties to appear before the Lower Appellate Court on 25/11/2013 at 2.30 p.m. The time stipulated herein would start to run from then.