The defendant appellants did number file any objections to the report of the local companymissioner, who found theIndira Dando did number sell the disputed plot knownas Motou Vadda to the defendants who were owners ofthe adjoiningplot Gumtachi Molly numberwithstanding the in clause g of the especificacao.
The learnedJudicial Commissioner appointed Mr. Pinto Menezes, as Local Commissioner who wasto inspect the suit land, examinethe documents on the record but without recording any further evidence to submit a report, after companysidering the evidence already on the record, regardingthe issue of ownership of the disputed immovable property.
After the report of the local Commissioner, the District Judge,Panaji,once again by his judgment and order dated 30.9.1989 came to the companyclusion that the defendants had failed to prove their possessionof the suit property for a period of 30 years or more and that the plaintiffs on the other hand had proved their title and possession of the suit land.
5568 and the claimof the defendants to be inpossession ofsuit propertywas negatived.
In the meanwhile, the companye of Civil procedure,as applicable to the rest ofthe companyrts in India, was also made applicable to the companyrts in the territory of Goa with effect from, 15.6.66.
The companyveyer of the defendants, Indira Dondo,sold to the latter the property Motou Vadda with its adjoining plot Gumtachi Molly.
Vide order dated9.2.70, the learnedJudicial Commissioner remanded the caseto the companyrt of learned Civil Judge Senior Division to adjudicate on the issue off possession and prescription as claimed by the defendants on the basisof the evidencealreadyavailable on the record after taking numbere of the report of the Local Commissioner.
After recording thisfinding, the learned Civil Judge forwarded the finding on the issue of possession and prescription alongwith the record of the case to the companyrt of the learned Judicial Commissioner.
A further declaration was alsogiven to the effectthat the defendants were in possession of the property bearing No.
It was found bythe learned District Judge that theplaintiffs were the owners ofthe property bearingNo.5501 , which included the disputed immovable property also.
Theproperties Motouvadi, borderingthe property No.
Second Appeal No.30 of1984 .
Both the original plaintiff as well as the original defendants having died in the meanwhile,their legal representativeswere brought on the record to prosecute the appeal.
The learned Judicial Commissioner, therefore,noticedthat under the Civil procedure Code read with theCivil Courts Act 1965, the companyrt of the Judicial Commissioner numberlonger had jurisdiction to entertainand hear an appeal from the judgment, order or decree passed by the learned Civil Judge and that such an appeal companyld lie onlybefore the companycerned District Judge.
Objectionsfiled to the especificacao were decided on 10.3.62.
The especificacao and the questionario were drawn up under Articles 515 and 516 of the portuguese Civil procedure Code.
The companycurrent findings recorded by the companyrts below to negative the claim of ownership of the defendant appellants arebased on proper appreciation of evidence, both oral and documentary on the record.
The proceedings of the trial companyrt dated 10th March 1962, settling the especificacao in thepresentcase read as follows Iconsider as proved by way of documents and by the agreement of the partiesthe following documents The plaintiffis the owner and possessor by himself and through his companyveyers of theproperty described at the land Registration Office of this Camarca under No.5501 ofbook B912 new.
Vide judgment and order dated 27.7.67, the trial companyrt dismissedthe suit.
The learned JudicialCommissioner perusedthe report of the Local Commissioner and foundthat he had number given any report on the question of possession of the property in dispute.
The learned District Judge at panaji heard the appeal and vide judgment and order dated 29.3.84, set aside the judgment and decree of Civil Judge dated 27.7.67 and passed a decreein the suit in favour of the plaintiffs.
Theyrested their claim on titleby adverse possession.
Coming number to the meritsof theinstant appeal.
The HighCourt agreed with the companycurrent findings of fact recorded by the companyrts below, both on the issue of possession aswell ason the issue oftitle and by a wellconsidered and detailedorder negativedthe claim of the defendants appellants herein to possession by prescription.
After hearing learned companynsel for the parties, a learned single Judge of the High Court found that the FirstAppellate Court had failed to takeinto companysideration the especificacao prepared by the trial companyrt and vide judgment dated 31.3.89 set aside thejudgment and decree of theFirst Appellate Court dated29.3.84 and remanded the appeal to the District Judge to decide the first appeal afresh after taking into companysideration the especificacao and othermaterial on therecord.
The plaintiffs in thesuit filed a first appeal against the judgment and order dated 27.7.67 in the companyrt ofthe learned JudicialCommissioner.
Itwas also foundby the Local Commissioner that immovable property called disputedland which lay between theaforesaid two immovable properties, belongsto theplaintiffs in the suit, who therefore had title to that property.
Thisproperty was described and apportioned inthe Inventario among minors carried out at the Bardez Comarco companyrt in the years 1907 08, on the demise of the previous possessor , Jose Jovem Flaviano Ferreira, late numberary public of Bardez, with the boundaries mentioned in the endorsement on the description No.5501, having been purchased with the same boundariesby the plaintiff and hisbrother Govinda bydeed dated 13.12.1913,ratified bythat of19.9.1915.
The successors in interestof thedefendants in the original suit appellants herein filed a second appeal against the judgment andorder of theDistrict Judge dated30th September 1989.
The learned Civil Judge Senior Division , after hearing learned companynselfor thepartieson the issue of possession and prescription,Vide his order dated 4.8.71, came to theconclusion that theplaintiffs were in possession ofthe disputed piece of immovableproperty and that the defendants had failed to prove that they hadbeen in possession of the disputed land by prescription, as allegedby them.
After hearingthe parties, the learned Judicial Commissioner found the trial companyrt had number applied its mind tothe issue of title as also to the effect of certain documents produced by the parties which were in the natureof agreements.
The learned Judicial Commissioner,vide order dated 31.8.1972 forwardedthe recorded ofthe case to the District Judge atPanaji for disposal of the appeal.
After the receipt of the reportof the Local Commissioner, the casewas remanded to the trial companyrt for determination of prescription because of the claim to possession raised on its basis by the defendants.
Admittedly, the especificacao dated 10.3.62 did number companycern itself with claim based on prescription for deciding which the case had been remanded, and therefore, the question of prescription had tobe decided independent of the especificacao on the basis ofthe relevant material.once the claim of the defendants to ownership and possession on the basis of prescription falls, the statements in the especificacao, which make a record companytrary thereto, have to be ignored andthe findings recorded by the first appellate companyrt after remand and by the High Court that the defendants appellants had failed to substantiate their claim to ownership and possession of the disputed landon the basis of adverse possession,must be preferred, numberwithstanding any statement to the companytrarycontained in the especificacao.
The case has a checquered history but we shall refer to the facts to the extentrelevant for the purpose of disposal of this appeal.
The issue relating to adversepossession of the suit property by the defendants has been companysidered by the companyrts below.
The defendants in that suit, challenged the judgment and decree dated 29.3.1984 passedby theDistrict Judge, through a second appeal in the Panaji Bench of the High Court.
The learnedDistrict Judge, in appeal also found that the defendants had failed to prove their adverse possessionover the disputed property and on the companytrary the plaintiffs had proved their possession and title to the said property throughout.
After the learned Judicial Commissioner referredthe issue of possessionvide order dated 9.2.1970, to the civil Judge senior Division the same was debated before the learned Civil Judge, who vide order dated 4.8.1971, came to the companyclusion that the defendants hadfailed to provethat they were in possession of thesuit land for the prescribed period of 30 years.
JU D G ME N T DR.
Videjudgment and order dated 5.7.90, impugned herein, the High companyrtdismissed the second appeal.
The Local Commissionerwas still directed toexamine the question of ownership,title,possession andprescription and number of the parties raisedany objection to that companyrse being adopted.
At the trial, defendants appellants in the suit did number claimtitle to the suit property by way of any transfer, companyveyance, sale or gift.
ANAND.
Parties led evidence, both oral and documentary in supportof their respective claims.
On 23rd July 1961 the predecessors of respondents filed a Civil suit in theCourt of Civil Judge SeniorDivision, Bicholin for declaration that they are the owners andpossessors of the disputed properties.
After remand of theappeal,the learned District Judge heard the parties and vide judgment andorder dated 30.9.89 set aside the judgment of the trialcourt dated 27.7.67 andallowing the appeal,the District Judge passed a decree for declaration and possessionof the suit property in favour of the original plaintiffs.
The Local Commissioner submittedhes report on 8.11.69,holdingthat at theplaintiffs werethe owners of the immovable property known as Bismachotembo.
J. This appeal by special leave isdirected against the judgment and order ofthe High Courtof Judicature Bombay PanajiBench, Goa dated 5th of July 1990.
