Bombay High CourtKrishna Venctexa Porob Shastri And Ors. vs Sebastiao Luis Fernandes (Deceased) ... on 14 September, 1998Equivalent citations: (1999)101BOMLR374Author:R.M.S. KhandeparkarBench:R.M.S. KhandeparkarJUDGMENT
 

R.M.S. Khandeparkar, J.1. This appeal has been admitted on the following substantial questions of law:(1) The plaintiffs not having produced any document of title, could the Courts below decree the suit?(2) The decision is contrary to the pleadings. The Courts below committed breach of procedure in holding that there was admission of original plaintiffs, in the pleadings when there is no such admission.(3) The Courts below failed to consider that the defendants/appellants had pleaded prescription and that Article 526(2) was fully attracted.2. In substance the substantial questions of law which are required to be decided in this appeal are that firstly whether in the absence of documentary title, the Courts below could have decreed the suit?, secondly whether by holding that the title of the plaintiffs has been admitted, the Courts below have acted in breach of procedure inasmuch as when there is no such admission on the part of the defendant? and thirdly whether the Courts below failed to consider the exact nature of plea in relation to prescription raised by the appellants?3. The facts in brief are that the respondents herein filed civil suit for declaration that they are the lawful owners in possession of 1/3rd of the property bearing land registration No. 16413 and for consequential relief for cancellation of registration in favour of the appellants in respect of such 1/3rd share in the said property and to register the same in the name of the respondents. The suit property is one bearing land registration No. 16413 and the claim of the respondents was that it belonged to three brothers, namely Francisco Fernandes, who was the father-in-law of the respondent No. 1, Francisco Fernandes junior and Pedro Sebastiao Fernandes. They own and possess the same jointly and in equal shares. It is further the case of the respondents that on the death of Francisco Fernandes, he was survived by the respondent and the husband of respondent No. 1. It is their case on the death of said Francisco Fernandes, the 1/3rd share of the property devolved upon Luis the late husband of respondent No. 1 and it was accordingly enjoyed by the respondents. On account of a debt of Rs. 198/- to one Naraina Panduronga Porobo, the property was attached and thereafter the liability was paid by way of surrogation of rights in favour of the father of the appellant No. 1, who got this property sold in public auction on 26th April, 1935 and thereafter granted aforamento of the said property in favour of the appellant No. 2. It is the case of the plaintiffs that the right of surrogation in favour of the father of the appellant No. 1 was granted only by the appellant No. 2 in respect of the 1/3rd share and not in relation to the entire property.4. The case of the plaintiffs was sought to be contested by the appellant No. 1 by submitting that the claim of the plaintiffs is false and the ownership and possession of the property stands transferred in favour of appellant No. 1 with effect from 26th April, 1935 and he has acquired even right by way of prescription for having enjoyed the same for 10 years pursuant to the registration of the property in his name. The appellant No. 2 also denied the case of the plaintiffs and claimed to be in possession pursuant to conveyance thereof by the appellant No. 1.5. The Trial Court decreed the suit by its decree dated 29th April, 1978. Aggrieved by the said decree the appellants preferred an appeal being Civil Appeal No. 237/1981 before the District Court at Margao, which was disposed of by the impugned order dated 16th December, 1985. The findings arrived at by the Courts below can be summarized thus : though the evidence on record shows that neither the original plaintiffs nor the original defendants were able to produce any documentary evidence in support of their title to the property besides the claim made by them that the property was acquired from their common ancestors, the fact remains that the specific claim made by the respondents with regard to the common ownership of the suit property was not specifically denied by the appellants except the original defendant No. 1 Krishna Venctexa Porob Shastri, who took a definite stand in that respect. This coupled with the oral evidence on record show that the property was enjoyed in common/jointly by three brothers and their successors as pleaded by the plaintiffs. Secondly Article 526 of the Portuguese Civil Procedure Code cannot be availed of by the appellants to claim benefit of possession of merely 10 years to acquire title by way of prescription.6. Undisputedly the plaintiffs in the suit have not produced any documentary evidence in support of their claim of ownership of 1/3rd share in the suit property. The main thrust of both the Courts below in this regard to arrive at the finding in favour of the plaintiffs is upon the failure of the appellants to deny the claim of ownership by the plaintiffs. It is to be noted that the suit in the case in hand was filed prior to the enforcement of Civil Procedure Code in Goa. The Court language then was Portuguese. The translation of the pleadings have been made available by the parties. Pleadings in the plaint regarding the claim of ownership read thus:In the village of Loliem there exist a property known as "Bodquealem Tican" now described in the Land Registry of this Judicial Division under No. sixteen thousand four hundred thirteen (16,413) and which belonged jointly to Francisco Fernandes, the father-in-law of the plaintiff and his brothers Francisco Fernandes junior, and Pedro Sebastiao Fernandes, who all three had been always holding in possession the property jointly and in equal shares.In answer to the said pleadings the defendant No. 1 the predecessor of the appellant No. 1 stated thus:The plaintiff her husband Luis or the father of this Francisco Fernandes Senior never held in possession the property-Bolquealem Tican-situate at Loliem and described in the Land Registry under No. 16413, the boundaries of which and other details set out in the doc. of fls. 5 are deemed to have been reproduced herein for all purposes of law.The property at issue was always and originally in possession and ownership of the Judgment debtors Tomas Fernandes his wife Tereza Fernandes, Santana De Souza and his wife Conceicao Fernandes of Loliem.The other defendants, namely the other appellants stated thus:For neither she nor her husband held in possession any property and much less Bolquealem Tican - No. 16413 the details of identification of which are borne out from Doc. of fls. 5 and are deemed to have been reproduced herein.7. In other words the pleadings disclose that the defendant Shastri had in fact denied the claim of ownership of the defendants. No doubt there is no specific denial of the ownership by Tereza. But the fact remains that said Tereza is not claiming right independently and her claim to the suit property is through the said Shastri. It is the case of the defendants that the suit property was purchased by Shastri in a Court auction and subsequently conveyed to Tereza. Therefore, as rightly submitted by the learned Advocate for the appellants, the pleadings of Shastri relating to the denial of claim of ownership of the plaintiffs are more relevant and material rather than those of Tereza. The denial of Tereza without there being any such denial by Shastri would have been of no consequence because consequent to the auction of the property through Court, Tereza is claiming right to the property only through Shastrj and not independently. Otherwise, irrespective of denial of such claim by Tereza, had Shastri accepted the claim of the plaintiffs, then such denial by Tereza would have been of no consequence in the facts and circumstances of the case. Undisputedly Shastri has denied the claim of ownership of the plaintiffs. Being so, the findings of both the Courts below that there is no denial of the plaintiffs' case regarding the ownership of the property is not correct and the finding is totally contrary to the records and per se arbitrary and perverse and cannot be sustained.8. It is, therefore, clear that the claim of title of the plaintiffs to the suit property was clearly in dispute. Undisputedly plaintiffs have not proved their title to the suit property. The clear finding of both the Courts below on this aspect on analysis of the entire materials on record is that the plaintiffs have failed to produce any documentary title in respect of the ownership of the suit property. The challenge of the plaintiffs to the acquisition of right to the suit property by Shastri and Tereza is essentially and solely based on the basis of claim of ownership of the plaintiffs to the suit property. Therefore, it was primarily and essentially necessary for the plaintiffs to establish their claim of ownership before they could invite the Court to address itself to the issue of their challenge to the title of Shastri and Tereza to the suit property. The plaintiffs having failed to do so, the entire claim of the plaintiffs was to be rejected. It is pertinent to note that the fact that the suit property is duly registered under No. 16413 is not in dispute, yet the plaintiffs have not produced on the record any document of inscription of the suit property.9. In this view of the matter, the first question is to be answered in the negative and the second question in the affirmative. Consequently the suit is liable to be dismissed and, therefore, there is no occasion to consider the third question.10. Though the learned Advocate made frantic efforts to remind about the limitation of the Court in the matter of interference in the Judgment of the Court below in exercise of powers under Section 100 Civil Procedure Code, suffice to refer to the Judgment of the Apex Court, in the matter of Hiralal and Anr. v. Gajjan and Ors. , wherein it has been held thus:If in dealing with a question of fact the lower Appellate Court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure. When the first Appellate Court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the Court below ignored the weight of evidence and allowed the Judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coining to its own independent decision.11. In the result, therefore, the appeal succeeds. The impugned Judgment and Decree as well as that of the Trial Court in the matter in hand are hereby quashed and set aside. The suit filed by the respondents is dismissed. The respondents to pay cost of Rs. 1000/- to the appellants.