Dismissed

Namdeo Vishnu Salgaonkar Alias Joao Augusto Cardozo (Since Dec) through Lr'S v. Subhash B. Velingkar and Anr.

Bombay HC15 Apr 2021SA/105/2011

Case brief

AI extract

What is this about?

Suit for possession of a Panaji building by persons claiming title. The trial court and first appellate court dismissed the suit, the latter holding the plaintiffs were exclusive owners but that the cause of action was concocted. In second appeal the court upheld the dismissal, holding the plaintiffs' cause of action false and the suit time-barred, and refused to interfere with the concurrent find

What did the court decide?

Appeal dismissed with no order as to costs; receivership of Defendant No.1, if inadvertently continuing, discharged.

Namdeo Vishnu Salgaonkar Alias Joao Augusto Cardozo (Since… — Property and Title | Bombay HC (2021)

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s Santosh

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IN THE HIGH COURT OF BOMBAY AT GOA

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SECOND APPEAL NO.105 OF 2011

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1. Namdeo Vishnu Salgaonkar alias Joao Augusto Cardozo, son of late Vishnu Salgaonkar, residing at House No. 17, Zorichem Bhat, Carambolim, Corlim, Ilhas, Goa, since

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deceased through his legal heirs:

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(a) Luisa Maria Pereira (daughter)

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(b) Roque Cajetan Fedric Pereira (son-in-law)

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(c) Minguel Antonio Cardozo (son) through its duly constituted Power of Attorney Mr. Menino F. Cardozo

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(d) Monica Maria Anes Cardozo (daughter-in-law)

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(e) Maria De Fatima Cardozo (daughter)

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(f) William Filomena Gonsalves (son-in-law)

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(g) Menino Feliciano Cardozo (son)

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(h) Fatima Teolflin Mascarenhas Cardozo (daughter-in-law)

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(i) Maria Mystica Cardozo (daughter)

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(j) George B.M. Cardozo (son-in-law)

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2. Smt. Maria Angelica Fernandes

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(since deceased)
(widow of Petitioner No.1)
All residing at House No. 17,
Zorichem Bhat, Carambolim Ilhas Goa….. Appellants.

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 Versus

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1. Shri Subhash B. Velingkar

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2. Shri Bhaskar Velingkar (expired)

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Both at present occupying House
No. 533, Near Mahalaxmi Temple,
Dr. Dada Vaidya Road, Panaji,
Goa.

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…... Respondents.

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Mr. Coelho Pereira, Senior Advocate with Mr. Vinod Korgaonkar
and Mr. Vilas Pavithran, Advocates for the Appellants.

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Mr. S.S. Kantak, Senior Advocate with Mr. Rui Gomes Pereira and
Mr. Abhijit Kamat, Advocates for the Respondents.

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 CORAM: M. S. SONAK, J.
 Reserved on: 9th April 2021.
 Pronounced on : 15th April, 2021.

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JUDGMENT :

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Heard Mr. J.E. Coelho Pereira, the learned Senior Advocate,
along with Mr. Vinod Korgaonkar for the Appellants and Mr. S.S.
Kantak learned Senior Advocate along with Mr. Rui Gomes Pereira

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and Mr. Abhijit Kamat for the Respondents.

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2.The Appellants are the original Plaintiffs and the
Respondents are the original Defendants, or the legal representatives
of the Defendants in Special Civil Suit No.239/90/A, instituted in
the Court of Civil Judge, Senior Division, at Panaji. The parties to
this Appeal will, therefore, be referred to as the Plaintiffs and the
Defendants, for the sake of convenience.

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3.In the plaint, the Plaintiffs pleaded that there exists a
property bearing Chalta Nos.126 and 126-A of P.T. Sheet No.61 of
City Survey of Panaji, in which, was situated a building comprising a
ground floor, first floor, a garage, and a godown. The suit property
originally belonged to Ramchandra Krishna Salgaonkar
(Ramchandra), who was a widower and expired as such in 1969. The
Plaintiffs claim title to the suit property and the building therein
through the said Ramchandra.

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4.The plaint further sets out that the ground floor of the
building in the suit property was gifted by Ramchandra to one of his
sons Prabhakar. However, Prabhakar let out the ground floor to some
tenants and moved in with Ramchandra on the first floor. By a Will
dated 2/2/1954, Ramchandra constituted Prabhakar as his universal
heir. There was also a Deed of Succession dated 10/6/1976, by

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which, Prabhakar was declared as the sole and universal heir of
Ramchandra. Accordingly, after the demise of Ramchandra in 1969,
it was Prabhakar, who was enjoying and possessing all the assets left
behind by said Ramchandra, including the suit property and the suit
premises therein.

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5.The plaint further sets out that Prabhakar died on
28/1/1988 and, after his demise, the suit property, including the first
floor of the building, garage, and the godown continued to be
occupied by his niece Vilasini Salgaonkar. In terms of Inventory
Proceedings No.74/1988, instituted on the demise of said Prabhakar,
the suit property, including the building therein and one vehicle was
allotted to Plaintiff No.1-Namdeo, ( brother of Prabhakar ) who
started residing in the suit property or rather the first floor of the
building in the suit property, after the death of said Prabhakar. In
September 1989, however, Namdeo was taken ill and required to be
admitted at the Goa Medical College, from where he was shifted to
Carambolim. Vilasini, however, continued to stay on the first floor of
the building.

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6.The plaint further sets out that one Muktabai Bandekar was
the housekeeper, engaged by late Ramchandra. She, along with her
grown-up daughter Kesar, was staying in the suit premises in her
capacity as a housekeeper. In the Will, Ramchandra made a provision

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that Muktabai is given an allowance until her death by declaring her
as his 'friend'. Muktabai lived in the suit premises until her demise on
23/11/1971. Kesar was married to one Bhaskar Velingker. Upon
marriage, the name of Kesar was changed to Gulabbai. However,
since her relationship with Bhaskar was strained, Ramchandra
permitted said Kesar to also stay in the suit premises along with her
mother Muktabai, out of pity. After the death of Muktabai, Kesar @
Gulabbai continued to stay in the suit premises until she expired in
the year 1974.

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7.The plaint further sets out that on 10/8/1990, when
Vilasini had gone to her parent's residence, Defendant No.1
(Subhash), son of Kesar @ Gulabbai broke open the locks of the front
door and took forcible possession of the suit building. Vilasini lodged
a Police complaint, but, despite the same both, Subhash and
Defendant No.2 (Bhaskar), continued to occupy the first floor, garage
and the godown in the suit property. Therefore, it is these premises
that are referred to as the suit premises in the Suit.

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8.Based on the aforesaid pleadings, the Plaintiffs applied for
the following substantive reliefs in the plaint:

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(a) For a decree, directing the Defendants to restore the vacant
possession of the suit premises to the Plaintiffs;

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(b) For a decree for payment of mesne profits at the rate of

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₹ 5,000/- per month;

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(c) For a decree to restrain the Defendants from parting with
the possession of the suit premises or any portion thereof; and

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(d)For a decree of permanent injunction, restraining the
Defendants from interfering with the suit premises, once the
possession thereof was restored to the Plaintiffs in terms of prayer
clause (a) of the plaint.

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9.The Defendants filed their detailed written statement
pointing out that Ramchandra was married to Muktabai in a
ceremony solemnized at Sawantwadi, Maharashtra. Further, it was
pleaded that Kesar was the daughter of Ramchandra and Muktabai.
Defendant No.1-Subash was thus the grandson of Ramchandra and
had right and title to the suit property and the building therein as a
legal heir of late Ramchandra.

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10.The written statement further sets out that Subhash was
born in the suit premises sometime in the year 1948 and has lived
there since, except for some years, when, on account of his
employment, was required to stay away. The Defendants pointed out
that none of the Plaintiffs were ever staying in the suit premises and
the cause of action of alleged forcible ousting of the Plaintiffs on
10/8/1990, was a concocted cause of action to escape the bar of
limitation. The Defendants referred to several circumstances to

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establish their case.

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11.Based on the rival pleadings, the learned Trial Judge framed
the following issues and returned the findings thereon:-

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ISSUES FINDINGS

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 1. Whether the plaintiffs prove
that they are owners of the suit property ? Partly in the affirmative

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2. Whether the plaintiffs prove that
they are entitled for vacant possession
of the portion of the suit property
namely the first floor, garage
and the godown ? In the negative.

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3. Whether the plaintiffs prove
 that they are entitled for mesne
profits at the rate of Rs.5000/-
per month from 10.08.1990 till the
delivery of possession to the plaintiffs ? In the negative.

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4. Whether the defendants prove
that late Ramchandra was the
grand father of defendant No.1 ? In the affirmative.

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 5. Whether the defendants prove
that they are in lawful possession
of the portion of the suit property
namely the first floor, garage and the
godown ? In the affirmative.

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12.Thus, by Judgment and Decree dated 30/1/2008, the Trial
Court dismissed the suit holding, inter alia, that Subhash had a right
to the suit property and the suit premises and further, the so-called

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cause of action pleaded by the Plaintiffs, was a concocted one. The
Trial Court also accepted that Muktabai was indeed the legally
wedded wife of late Ramchandra and Subhash was their grandson.

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13.The Plaintiffs, aggrieved by the Trial Court's Judgment and
Decree dated 30/1/2008, appealed to the Ad-hoc District Judge-1,
Fast Track Court, Panaji (First Appellate Court), by instituting
Regular Civil Appeal No.45/2010.

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14.The First Appellate Court, in paragraph 9 of its Judgment
and Decree dated 18/11/2010, framed the following points for
determination and recorded findings thereon:-

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Points for determination

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Findings.

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1. Did the Ld. CJSD Panaji err
in holding that defendant no.1 is the
grandson of Ramchandra Krishna
Salgaonkar ?In the affirmative.

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2. Did the Ld. CJSD Panaji err
in holding that the plaintiffs are not
the owenrs of the whole of the property?

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In the affirmative.

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3. Did the Ld. CJSD Panaji err
in holding that the defendants had not
trespassed into the first floor of the
building of the suit property on 10/8/1990 ? In the negative.

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4. Did the Ld. CJSD Panaji err
in holding that the plaintiffs are not
entitled to mesne profit at the rate of
Rs.5000/- per month?

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In the affirmative.

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15.Although the finding in respect of the fourth point of
determination is recorded as “in the affirmative”, from the context, it
is quite clear that the finding recorded by the First Appellate Court is,
in fact, “in the negative”. This position was not even disputed by the
learned Counsel for the Appellants. In any case, this position could
not be disputed since, from the discussion, it is very apparent that the
First Appellate Court has answered this point against the Plaintiffs
and in favor of the Defendants.

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16.By the Judgment and Decree dated 18/11/2010, the First
Appellate Court held that the Plaintiffs were the only titleholders to
the suit property and the building situated therein to the exclusion of
the Defendants. However, the First Appellate Court also held that the
cause of action pleaded by the Plaintiffs was a concocted one and,
therefore, the suit deserved to be dismissed. The First Appellate
Court, based on such reasoning, dismissed the Regular Civil Appeal
No.45/2010, thereby affirming the Trial Court's Judgment and
Decree dated 30/1/2008.

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17.The Plaintiffs aggrieved by the dismissal of their Regular
Civil Appeal No.45/2010, have instituted the present Second Appeal
before this Court. This Second Appeal was admitted on 19/7/2011,
on the following substantial questions of law :

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Whether the First Appellate Court after holding that the
appellant had title to the suit property and the defendants
had not title thereto erred in law in dismissing the suit on
the ground that the defendants were in settled possession of
the suit property?

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18.Mr. J.E. Coelho Pereira, the learned Senior Advocate for the
Plaintiffs submits that it is quite axiomatic that the decree for
possession should have followed in this matter after the First
Appellate Court concluded that the Plaintiffs were the exclusive
owners of the suit property and the suit premises. He submits that
denial of a decree of possession by the First Appellate Court to the
Plaintiffs, constitutes an error apparent on the face of the record, that
is required to be corrected in this Second Appeal. He submits that it
is a settled position in law that the possession follows the title and
since the Defendants were unable to establish any right or title in
respect of the suit property or the suit premises, the First Appellate
Court erred in denying the Plaintiffs a decree possession, after having
held that it is the Plaintiffs who were the owners of the suit property
and the suit premises. He submits that the reasoning of the First
Appellate Court is quite contrary to the law laid down by the
Hon'ble Supreme Court in Poona Ram vs. Moti Ram (Dead)
through Lrs and ors.1 and Govind Sadashiv Marathe and ors. vs.
Dattaram R. Marathe and anr.2 by the learned Single Judge of this

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1 (2019) 11 SCC 309

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2 Second Appeal No.39/1997 decided on 29/7/2004

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Court.

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19.Mr. Pereira submits that the evidence on record is sufficient
to prove the Plaintiffs' case of their forcible dispossession from the
suit premises on 10/8/1990. On a proper appreciation of the
evidence, it is clear that Vilasini Salgaonkar, who was holding
possession on behalf of the Plaintiffs, was forcibly ousted from the
suit premises on 10/8/1990. He submits that the evidence to the
contrary recorded by the two Courts suffers from perversity and
warrants interference. Mr. Pereira submits that in any case, once it
was established that the Plaintiffs are titleholders and the Defendants
have no legal right in respect of the suit property or the suit premises
therein, the decree for the restoration of possession should have been
made by the two Courts, as a matter of course. He, therefore, submits
that this Second Appeal be allowed and the Plaintiffs' suit be decreed,
as prayed for in terms of the reliefs sought in the plaint.

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20.Mr. S.S. Kantak, the learned Senior Advocate appearing on
behalf of the Defendants submits that the finding recorded by the
First Appellate Court to the effect that there was no valid marriage
between Ramchandra and Muktabai suffers from perversity. He
submits that the Defendants, who are the Respondents in this
Appeal, can challenge this adverse finding even without filing any
cross objection. He relies on Ravinder Kumar Sharma vs. State ODF

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Assam and ors.3 and S. Nazeer Ahmed vs. State Bank of Mysore and
ors.
4 in support of this contention.

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21.Mr. Kantak submits that the findings recorded by the Trial
Court were based on both, oral as well as documentary evidence. He
submits that the First Appellate Court has not even looked into the
oral evidence on record, but simply held that the oral evidence of the
two parties is quite balanced and, therefore, the matter will have to be
decided only on documentary evidence. He submits that even the
documentary evidence has not at all been considered by the First
Appellate Court in a proper legal perspective. He submits that the
First Appellate Court has given no reasons whatsoever for reversing
some of the findings of fact recorded by the Trial Court. He submits
that the approach of the First Appellate Court, in matters of reversal
of such findings, does not agree with the provisions of Order 41, Rule
3 of the Code of Civil Procedure as explained in Bibi Riajan Khatoon
and ors. vs. Sadrul Alam and ors.5 and Santosh Hazari vs.
Purushottam Tiwari (Deceased) by Lrs.6. He, therefore, submits that
the finding to the effect that Ramchandra and Muktabai were not
validly married, warrants interference.

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22.Mr. Kantak submits that even, otherwise, there are

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3 (1999) 7 SCC 435

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4 (2007) 11 SCC 75

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5 AIR 1996 Patna 156

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6 (2001) 3 SCC 179

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concurrent findings of fact that the Plaintiffs came to the Court based
on a concocted cause of action. He submits that there is both, oral as
well as documentary evidence on record, which establishes beyond
reasonable doubt that the Defendants were in possession of the suit
property and the suit premises for several years before the year 1969
and, in any case, continued to be in possession from 1969 in their
own right, post the demise of Ramchandra, the grandfather of
Subhash. Mr. Kantak submits that the Plaintiffs deserved to be non-
suited for approaching the Court with a patently false case and a
concocted cause of action. He submits that now that it is established
that the Defendants were in possession of the suit property and the
suit premises in their own right from 1969, at least, the suit instituted
in the year 1990 was ex facie barred by Law of Limitation. He,
therefore, submits that the suit was quite correctly dismissed by the
Trial Court and the First Appellate Court.

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23.Mr. Kantak submits that the plea of limitation was expressly
raised by the Defendants in their written statement. He submits that
the Defendants cannot be prejudiced because the two Courts may
not have specifically considered this plea even though they were duty-
bound to consider the same. He submits that from the evidence on
record, it is apparent that the suit was barred by limitation and,
therefore, the defendants ought to be permitted to support the
decrees made, on these additional grounds as well.

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24.Mr. Kantak submits that for all the aforesaid reasons, this
Second Appeal may be dismissed.

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25.The rival contentions now fall for my determination.

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26.The substantial question of law as framed proceeds on the
premise that the Plaintiffs have established their title to the suit
property and the Defendants have failed to establish that they have
any independent right to remain in possession of the suit property.
Normally, if this is the position, the suit instituted by the Plaintiffs-
titleholders will have to be decreed, provided there are no further
impediments, like the absence of a valid cause of action, the bar of
the Law of Limitation, etc.

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27.In the present case, even if one is to proceed on the basis
that the finding recorded by the First Appellate Court that the
Plaintiffs are the titleholders to the suit property and the suit premises
is correct, the impact of the concurrent findings recorded by both,
the Trial Court and the First Appellate Court that the cause of action
pleaded by the Plaintiffs was false and concocted, cannot be brushed
aside or ignored.

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28.Although no substantial question of law was either urged or

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framed to the effect that the aforesaid concurrent finding of fact was
perverse, Mr. Pereira was permitted to raise such contention. Upon
consideration of such contention, however, no case is made out to
interfere with this concurrent finding of fact.

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29.On the assessment of both, oral as well as documentary
evidence on record, the concurrent finding of fact to the effect that
the Plaintiffs came to the Court based on a false cause of action or a
concocted cause of action, cannot be said to be perverse, but rather,
the same is fully borne out from the evidence on record. There is
ample evidence on record that Ramchandra and Muktabai were
staying in the suit premises. There is ample evidence on record that
even Kesar, the mother of Defendant No.1 Subhash, was staying in
the suit premises. There is evidence that Subhash was born in the suit
premises sometime in the year 1948 or thereabouts. There is evidence
that Subhash was residing in the suit premises right from the time of
his birth and also received education from the Schools and
educational institutions in and around the suit premises. There is
evidence that the School records of 1954 or thereabouts had very
clearly indicated that Subhash was the grandson of Ramchandra. No
doubt, there is also evidence that for some period Subhash, on
account of his employment as a Teacher, was residing at Mandrem
and Shiroda. However, even at that time, there is documentary
evidence that Subhash has always indicated the suit premises as his

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permanent address.

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 30.Since both, oral as well as the documentary evidence on
record establishes that the Defendants were in settled possession of
the suit property and the suit premises therein, at least from 1969 or
thereabouts, the case pleaded by the Plaintiffs that it is they who were
in settled possession of the suit premises to the exclusion of the
Defendants, was a false case. Similarly, the case of the Plaintiffs that
they were forcibly dispossessed from the suit premises on 10/8/1990
by the Defendants, is also a patently false case. The Plaintiffs
approached the Civil Court based on a false or a concocted cause of
action. Once, there are concurrent findings of fact recorded by the
two Courts on this aspect, the two Courts were justified in denying
the Plaintiffs any reliefs in the suit. Based upon a patently false and
concocted case, no Plaintiffs deserve any relief from the Civil Court,
even assuming that the Plaintiffs had made out a case that they were
the exclusive titleholders to the suit property.

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31. In Maria Margarida Sequeira Fernandes and ors. Vs. Erasmo Jack de Sequeira (Dead), through LRs.7 the Hon’ble Supreme Court has held that the truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. It was 7 (2012) 5 SCC 370,

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further held that it is a well-accepted and settled principle that a
Court must discharge its statutory functions – whether discretionary
or obligatory, according to the law in dispensing justice because it is
the duty of a Court not only to do justice but also to ensure that
justice is being done. The Hon’ble Supreme Court has held that false
claims and defenses are really serious problems with real estate
litigation, predominantly because of ever-escalating prices of the real
estate. The Hon’ble Supreme Court referred to its decision in
Rameshwari Devi vs. Nirmala Devi- (2011) 8 SCC 249 in which it is
observed that unless wrongdoers are denied profit from frivolous
litigation, it would be difficult to prevent it. To curb uncalled-for and
frivolous litigation, the Courts have to ensure that there is no
incentive or motive for uncalled-for litigation.

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32.Mr. Pereira, at one stage submitted that the Trial Court
based on the pleadings in the plaint had appointed Defendant No.1-
Subhash as a Receiver of the suit property. According to him, such
receivership continues to date even though the suit itself was
dismissed and such dismissal was confirmed by the First Appellate
Court. There is nothing on record that the First Appellate Court had
continued the receivership. Be that as it may, it is apparent that based
on a false and concocted cause of action the Plaintiffs persuaded the
Court for appointment of Defendant No.1 as a Receiver of the suit
property. Now that it is concurrently held by the two Courts that the

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cause of action pleaded by the Plaintiffs was false and concocted, the
two Courts were justified in dismissing the Plaintiffs’ suit, regardless
of whether the Plaintiffs had made out that they were the exclusive
titleholders of the suit property or not.

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33.Now that the concurrent finding of fact that the Plaintiffs
had approached the Court based upon a false cause of action, or the
concocted cause of action is upheld, yet another consequence follows.
The evidence on record now establishes that the Defendants were in
possession of the suit property and the suit premises at least from the
year 1969. If this is so, then, the suit instituted by the Plaintiffs in the
year 1990 was ex facie barred by law of limitation. The Defendants
had specifically raised the issue of limitation by filing their written
statement. The Defendants had pleaded that they were openly,
exclusively, and continuously in possession of the suit property and
the suit premises and as the lawful owners for the last 20 years. At
least the aspect of open, exclusive, and continuous possession of 20
years has been established from the evidence on record. The suit, as
instituted, could have succeeded only if the Plaintiffs were to establish
that they were in possession of the suit property and the suit
premises, but were forcibly dispossessed by the Defendants on
10/8/1990. This, the Plaintiffs have miserably failed to prove. Rather,
the evidence on record establishes the settled possession of the
Defendants from at least the year 1969. The suit, in such

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circumstances, was barred by limitation and, therefore, the same
could not have been decreed by the two Courts. The two Courts
were, therefore, justified in dismissing the suit. The circumstance that
this issue of limitation was neither considered by the Trial Court nor
the First Appellate Court, though the same was raised, cannot operate
to the prejudice of the Defendants. In fact, it was the responsibility of
the Courts to take up the issue of limitation irrespective of whether
or not the parties may have raised it.

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34.Therefore, for the aforesaid reasons, the substantial question
of law as framed will have to be answered against the Plaintiffs.

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35.The next issue is whether the Defendants are entitled to
challenge the findings recorded by the First Appellate Court that the
Plaintiffs were the exclusive titleholders to the suit property, without
the Defendants having filed any cross objection before this Court.
Further, if the Defendants are so entitled, then, whether such
challenge will have to be restricted to the jurisdictional parameters
prescribed by Section 100 of CPC. Finally, it will be necessary to
consider whether any case is made out by the Defendants to establish
that the finding recorded by the First Appellate Court about the
Plaintiffs being exclusive titleholders of the suit property, is vitiated
by perversity, to give rise to a substantial question of law.

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36.Although, several decisions were pointed out by the learned
Counsel for the parties, according to me, the issue as to whether the
Defendants can challenge the adverse findings recorded by the First
Appellate Court, before this Court, even without instituting any cross
objection, stands answered in favor of the Defendants by the
decisions in Ravinder Kumar Sharma (supra) and S Nazeer Ahmed
(supra )

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37. In Ravinder Kumar Sharma (supra), the Hon'ble Supreme
Court was concerned with this precise issue, particularly in the
context of the provisions of Order 41, Rule 22 of CPC, as amended
in the year 1976. The Hon'ble Supreme Court held that a
Respondent, who has not filed an appeal or cross objection, is
nevertheless entitled to attack the findings recorded by the Trial
Court adverse to the interest of such a Respondent, in an appeal
instituted by the opposite party.

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38.In the matter before the Hon'ble Supreme Court, the
Appellant-Plaintiff filed a suit claiming damages for malicious
prosecution against the State of Assam and two Police Officers for
recovery of various amounts set out in Schedules A, B, and C. The
Trial Court dismissed the suit on 16/7/1984. But the High Court, on
appeal, held that the Defendants were guilty of malicious prosecution
and abuse of power. The High Court, however, granted relief only

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regarding pecuniary damages set out in Schedules B and C (value of
goods) but dismissed the suit for non-pecuniary damages in the A
Schedule items (pain, damage to reputation, etc.) on the ground that
the pleadings and evidence in respect of the said items were vague.
The Plaintiff, therefore, appealed to the Hon'ble Supreme Court,
seeking a decree for non-pecuniary damages as set out in Schedule A
to the plaint.

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39.Before the Hon'ble Supreme Court, the Defendants who
were the Respondents, sought to attack the findings recorded by the
High Court on the aspect of malicious prosecution and the award for
pecuniary damages as set out in Schedules B and C to the plaint. In
this context, the point which arose for determination before the
Hon'ble Supreme Court was whether the Defendants-Respondents
were entitled to attack such findings of the High Court, without
having filed any cross objection as contemplated by Order 41, Rule
22 of the CPC.

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40.The Hon'ble Supreme Court first referred to the position of
law enumerated from the provisions of Order 41, Rule 22 of CPC, as
they stood before the 1976 amendment. Reference was then made to
the Full Bench decision of the Madras High Court in Gaddem
Chinna Venkata Rao vs. Koralla Satyanarayanamurthy - AIR 1943
Mad 698), which had held that the Respondents can attack a

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finding upon which part of the decree against him was based to
support the other part of the decree which was not against him. The
Hon'ble Supreme Court noted that the Judgment of the Full Bench
of the Madras High Court was specifically approved by the Hon'ble
Supreme Court in the case of Sri Chandre Prabhuji Jai Temple vs.
Harikrishna – (1973) 2 SCC 665. Based on this, the Hon'ble
Supreme Court held that under Order 41, Rule 22 of CPC, before
the 1976 amendment, it was open to the Defendant-Respondent who
had not taken any cross objection to the partial decree passed against
him, to urge in opposition to the appeal of the Plaintiff a contention
which, if accepted by the Trial Court, would have resulted in the total
dismissal of the suit.

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41.The Hon'ble Supreme Court then referred to the legal
position after the 1976 amendment to the provisions of Order 41,
Rule 22 of CPC. After taking cognizance of the amended provisions,
as also the explanation which was inserted, the Hon'ble Supreme
Court referred to the Judgment of the Calcutta High Court in
Nishambhu Jana vs. Sova Guha – (1984-85) 86 CWN 685 and held
that the main part of Order 41, Rule 22 was amended to reflect the
principle in Gaddem Chinna Venkata Rao (supra) as accepted in Sri
Chandre Prabhuji Jai Temple (supra). The Hon'ble Supreme Court
also referred to the 54th Law Commission report, in which it was
explained that it was necessary to “empower” the Respondent to file a

¶131

¶132

cross objection against the adverse finding. That would mean that a
right to file cross-objections was given, but it was not obligatory to
file cross-objections. That was why the word “may” was used. That
meant that the provision for filing cross objections against a finding
was only an enabling provision.

¶133

42.The Hon'ble Supreme Court specifically approved the
decision of Calcutta High Court in Nishambhu Jana (supra) and Tej
Kumar Jain vs. Purshottam – AIR 1981 MP 55 which had held that
it would be incorrect to say that the explanation inserted by the 1976
amendment had made it obligatory to file cross objection even when
the Respondent supports the decree by stating that the findings
against him in the Court below in respect of any issue ought to have
been in his favor. The explanation had merely empowered the
Respondent to file cross-objections.

¶134

43.Based on the aforesaid, the Hon'ble Supreme Court
ultimately ruled that the Defendants/Respondents were entitled to
contend that the findings of the High Court regarding the absence of
reasonable and probable cause or malice – (upon which the decree for
pecuniary damages in B and C Schedules was based) can be attacked
by the Respondents to sustain the decree of the High Court refusing
to pass a decree for non-pecuniary damages as per A Schedule. The
filing of cross-objections against the adverse finding was not

¶135

¶136

obligatory.

¶137

44.To a similar effect, are the observations in S. Nazeer Ahmed
(supra). In that case, the Trial Court had held that the Plaintiff's suit
for enforcing equitable mortgage was not barred by Order 2, Rule 2
CPC. In appeal, the High Court was inclined to hold that the suit
was barred under Order 2, Rule 2 of CPC, though ultimately the
High Court did not accede to the prayer of the Appellant to dismiss
the suit as being hit by Order 2, Rule 2 of CPC. The High Court had
held that since the Defendants had not filed any appeal or cross-
objections, the Defendants could not challenge the findings of the
Trial Court that the suit was not barred under Order 2, Rule 2 of
CPC.

¶138

45.The Hon'ble Supreme Court held that the High Court was
clearly in error in holding that the Defendants not having filed a
Memorandum of Cross Objections in terms of Order 41, Rule 22
CPC, could not challenge the findings of the Trial Court as the suit
was not barred under Order 2, Rule 2 of CPC. The Respondent, in
an appeal, is entitled to support the decree of the Trial Court even by
challenging any of the findings that might have been rendered by the
Trial Court against himself. For supporting the decree passed by the
Trial Court, it is not necessary for a Respondent in the appeal, to file
a Memorandum of Cross Objections, challenging a particular finding

¶139

¶140

that is rendered by the Trial Court against him when the ultimate
decree itself is in its favor. A Memorandum of Cross Objection is
needed only if the respondent claims any relief which had been
negatived to him by the Trial Court and in addition to what he had
already been given by the decree under challenge.

¶141

46.Based upon the legal position as explained by the Hon'ble
Supreme Court in Ravinder Kumar Sharma (supra) and S. Nazeer
Ahmed (supra), it will have to be held that the Defendants-
Respondents, in this Appeal, have every right to attack the adverse
findings recorded by the First Appellate Court to the effect that there
was no valid marriage between Ramchandra and Muktabai, even
though the Defendants-Respondents may not have filed any cross-
objections in this Appeal.

¶142

47. Order 42, Rule 1 of CPC makes it clear that the provisions
of Order 41 shall apply to second appeals. Therefore, the provisions
of Order 41, Rule 22 will apply to the Second Appeal, as well.
However, in applying such provisions, care will have to be taken to
ensure that even a Respondent in such an appeal does not cross the
limitations imposed upon by the provisions of Section 100 of CPC,
read with Order 42 of CPC. This means that a Respondent in a
second appeal even though permitted to challenge the adverse
findings recorded by the First Appellate Court, will be entitled to

¶143

¶144

challenge such findings only on the ground of perversity and not by
simply inviting the Second Appellate Court to reassess or reappreciate
the evidence on record. This is because, it is by now, well accepted
that it is the First Appellate Court which is the final Court in so far as
findings of fact are concerned. Unless it is demonstrated that such
findings of fact are perverse, an appellant is not entitled to maintain a
second appeal under Section 100 of CPC to question such adverse
findings of fact. The same restriction will apply to a Respondent in a
second appeal who seeks to challenge the adverse findings of fact that
may have been recorded against him by the First Appellate Court.

¶145

48.Mr. Pereira relied upon Superintending Engineer and others
vs. B. Subba Reddy8 to submit that the aforesaid position may be true
about first appeals, but will not apply to second appeals because the
jurisdiction of a Second Appellate Court is circumscribed by
jurisdictional parameters prescribed under Section 100 of CPC. He
submitted that a cross objection is like an appeal. Therefore, if the
Defendants fail to file such cross objection within the period
prescribed, they are not at liberty to challenge any adverse findings in
the order of the First Appellate Court. He submitted that the First
Appellate Court is a final Court when it comes to facts.

¶146

49.Mr. Pereira, quite fairly also placed on record the decision of

¶147

8 (1999) 4 SCC 423

¶148

¶149

the Hon’ble Supreme Court in Municipal Corporation of Delhi and
ors. Vs. International Security & Intelligence Agency Ltd.9 and
pointed out that the decision in B. Subba Reddy (supra) has been
partly overruled. However, he submitted that the contention
advanced by him, as stipulated in B. Subba Reddy (supra) has not
been overruled.

¶150

50.In B. Subba Reddy (supra), the issue was whether the
provisions relating to filing of cross-objections apply to an appeal
under Section 39 of the Arbitration Act, 1940. The Hon’ble Supreme
Court held that such provisions do not apply to an appeal under
Section 39 of the Arbitration Act since the scope of an appeal under
Section 39 of the Arbitration Act was very limited.

¶151

51.Since some doubts were expressed on the proposition laid
down by B. Subba Reddy (supra), a reference was made to a Bench of
Three Judges of the Hon’ble Supreme Court, and this reference was
answered in the case of International Security & Intelligence Agency
Ltd. (supra). The Three-Judge Bench clearly held that the cross-
objections could always be filed in an appeal under Section 39 of the
Arbitration Act, 1940. But the reliefs sought therein had to conform
to the requirements of Section 39(1) of the Arbitration Act, 1940. In
other words, a cross objection can be preferred if the applicant could

¶152

9 (2004) 3 SCC 250

¶153

¶154

have sought the same relief by filing an appeal in conformity with
provisions of Section 39(1) of the Arbitration Act, 1940. If the
subject matter of the cross objection is to impugn such an order
which does not fall within the purview of any of the categories
contemplated by clauses (i) to (vi) of sub-section (1) of Section 39 of
the Act, the cross objection shall not be maintainable.

¶155

52.The two decisions relied upon by Mr. Pereira do not
concern the issue as to whether the adverse findings can be challenged
by a Respondent without filing any cross objection. Further,
International Security & Intelligence Agency Ltd. (supra), clearly
holds that cross-objections are maintainable in an appeal under
Section 39(1) of the Arbitration Act, 1940. However, the scope of
such cross objection will have to be confined to the jurisdictional
parameters prescribed by Section 39(1) of the Arbitration Act, 1940.

¶156

53.In the present case as well, even though the Defendants will
be entitled to challenge the adverse findings recorded by the First
Appellate Court, such challenge will have to be examined within the
limited jurisdictional parameters prescribed by Section 100 of CPC.
This means that the findings of fact recorded by the First Appellate
Court that the Plaintiffs are exclusive titleholders will have to be
examined on the touchstone of perversity.

¶157

¶158

54.Now, if the impugned Judgment and Order made by the
First Appellate Court is perused, then, it is apparent that the First
Appellate Court has not even bothered to assess the oral evidence on
record. In hardly two or three very short paragraphs, the First
Appellate Court has alluded to the oral evidence when, admittedly,
the Plaintiffs had examined 3 witnesses and the Defendants had
examined almost 9 witnesses in this matter. Thereafter in paragraph
19, the First Appellate Court observed as follows :

¶159

“The Plaintiffs have adduced oral evidence in support of
the plaintiffs case. The defendants have adduced oral
evidence in support of the defendants’ case. The oral
evidence is equally balanced against each other. Therefore,
let us look into documentary evidence to ascertain the
truth.”

¶160

55.The First Appellate Court has then rather selectively
referred to the documentary evidence on record and concluded that
there was no valid marriage between Ramchandra and Muktabai and,
consequently, Defendant No.1, who is the grandson of Muktabai had
no legal right or title to the suit property.

¶161

56.The First Appellate Court referred to a Will made by
Ramchandra in 1954 in which Muktabai has been referred to as his
“friend” and not his wife. The First Appellate Court also referred to a

¶162

¶163

Gift Deed of 1963, in which Ramchandra had stated that he had no
s
legal heirs and finally, the First Appellate Court referred to Muktabai’
death certificate, in which, there was no reference to Ramchandra
being her husband.

¶164

57.The First Appellate Court has, however, unduly discarded
the School records prepared sometime in the year 1954, which had
indicated Ramchandra Salgaonkar as guardian/grandfather of
Defendant No.1 Subhash. The First Appellate Court has not even
considered the electoral rolls in which the name of Muktabai’s
husband was clearly shown as Ramchandra Salgaonkar. The First
Appellate Court also failed to notice that the death certificate of
Muktabai had also indicated her surname as “Salgaonkar”. In fact, the
First Appellate Court, at paragraph 22 has even recorded a finding
that the documents produced by the parties on record “tend to show
that defendant no.1 may have been grandson of Ramchandra
Krishna Salgaonkar”.

¶165

58.The First Appellate Court having come to the aforesaid
tentative opinion, could not have simply brushed aside the
voluminous oral evidence produced on record by and on behalf of the
Defendants. The Defendants examined independent witnesses who
have deposed that they had actually seen Ramchandra and Muktabai
behave as husband and wife. There was evidence that both of them

¶166

¶167

have lived in the same home and Kesar i.e. the mother of Defendant
No.1 Subhash, was their daughter. They have deposed that Muktabai
would always wear Mangalsutra and apply kumkum. There was
evidence that Muktabai would celebrate haldi-kumkum in the suit
premises whilst Ramchandra was living. There is evidence that after
the demise of Ramchandra, Muktabai stopped wearing Mangalsutra,
or applying kumkum, or celebrating haldi-kumkum. There is
evidence of the witnesses having seen Ramchandra and Muktabai
performing several religious activities, including Satyanarayan Puja, as
husband and wife. All this evidence has been simply brushed aside by
the First Appellate Court by observing that the oral evidence is
equally balanced against each other.

¶168

59. According to me, this is a case where the findings recorded by the First Appellate Court are vitiated by perversity. The First Appellate Court has failed to take into account the vital and relevant evidence on record. The first appellate Court has made selective reference to the documentary evidence on record and the inferences drawn are far from reasonable. The First Appellate Court has failed to take into consideration the law laid down by at least two Division Benches of our Court in the case of Kamalakant Pandurang Chibde and ors. Vs. Smt. Sushila Pandurang Chibde and ors.10 and Chandrasen Raikar vs. Smt. Mandakini Pundalik Salkar11 in which it 10 1990 (2) Goa L.T. 185 11 2003(1) Goa L.T. 51

¶169

¶170

is held that registration of marriage is not a sine qua non of a valid
marriage, particularly where marriage is performed outside Goa. In
this case, the Defendants had pleaded that the marriage between
Ramchandra and Muktabai was solemnized at Sawantwadi, which
was then outside the territories of Goa. The finding recorded by the
First Appellate Court is contrary to the weight of collective evidence
on record. Relevant and vital evidence has simply been discarded
without assigning any reasons. Therefore, the First Appellate Court
was not justified in holding that there was no valid marriage merely
because the marriage certificate or proof of registration was not
produced by the Defendants in evidence.

¶171

60. Mr. Pereira relying on Reema Aggarwal vs. Anupam and
others12 submitted that strict interpretation is called for to determine
whether the relationship between the parties constitutes a marriage
where the claims for civil property rights are involved. He submitted
that a liberal approach may be called for only where reputation is to
be protected or a social evil, such as harassment or cruelty to wife for
dowry is to be curbed.

¶172

61. According to me, the ruling in Reema Aggarwal (supra) is not at all attracted to the facts and circumstances of the present case as the issue involved therein was entirely different. The facts, in this case, are more or less similar to the rulings of the two Division 12 (2004) 3 SCC 199

¶173

¶174

Benches of this Court in Raikar (supra ) and Chibde (supra).
Besides, even in this case the issue of reputation and social status of
Muktabai, Kesar, and Subash is also involved.

¶175

 62.In Santosh Hazari (supra), the Hon’ble Supreme Court has
held that 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. The
Hon’ble Supreme Court clarified that this 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.

¶176

63. The Trial Court, in this case, has assessed the documentary
and oral evidence in some detail. The findings recorded by the Trial
Court were entirely borne out by the documentary and oral evidence
on record. The reasoning employed by the Trial Court also did not
suffer from any legal infirmity. The First Appellate Court by
virtually ignoring the entire oral evidence on record and without

¶177

¶178

indicating any reasons whatsoever as to where the learned Trial Judge
had faltered, was not justified in reversing one of the crucial findings
recorded by the learned Trial Judge. In doing so, the First Appellate
Court has not adhered to the principles explained by the Hon'ble
Supreme Court in Santosh Hazari (supra).

¶179

64. Mr. Kantak had also relied upon the decision of the Hon'ble
Supreme Court in The Dollar Company, Madras vs. Collector
Madras13, in which the Hon'ble Supreme Court has held that a Court
of appeal interferes not when the judgment under attack is not right,
but only when it is shown to be wrong. The First Appellate Court has
not adhered to this principle as well before reversing a finding of fact
recorded by the Trial Court.

¶180

65.In this case, the First Appellate Court has neither come into
close quarters with the reasoning assigned by the Trial Court nor
given any cogent reasons as to why the Trial Court's order was
required to be reversed. The First Appellate Court has certainly not
held that 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. This is yet another ground as to why the
finding recorded by the First Appellate Court, which is vitiated by
perversity, cannot be regarded as final for this Second Appeal.

¶181

13 (1975) 2 SCC 730

¶182

¶183

66.Therefore, by remaining strictly within the jurisdictional
parameters of Section 100 of CPC, it can be said that the finding of
fact recorded by the First Appellate Court to the effect that there was
no marriage between Ramchandra and Muktabai, or that the
Plaintiffs are exclusive titleholders to the suit property and the suit
premises, is quite perverse and warrants interference.

¶184

67.The aforesaid means that the Plaintiffs, in this case, have
neither established the exclusive title nor established that the cause of
action pleaded by them had any grain of truth. There are concurrent
findings of fact that it is the Defendants, who are in possession of the
suit property and the suit premises, at least from 1969 and the suit
was instituted only in 1990 based on a concocted cause of action.
The suit therefore can be said to be barred by the law of limitation as
well. This Appeal will, therefore, have to be dismissed on each of the
above grounds taken jointly or severally.

¶185

68.For all the aforesaid reasons, this appeal is liable to be
dismissed and is, hereby, dismissed. There shall, however, be no order
as to costs.

¶186

69.There is no clarity as to whether Defendant No.1 was
appointed as a Receiver by the Trial Court and, further, whether there
was any order made for his discharge. However, now that this Appeal

¶187

¶188

is being dismissed, it is made clear that in case the receivership of
Defendant No.1 has inadvertently continued despite the dismissal of
the Suit way back in the year 2008, then, the same is, hereby,
discharged.

¶189

SANTOSH S MHAMAL Digitally signed by SANTOSH S MHAMAL Date: 2021.04.15 11:20:41 +02'00'

Namdeo Vishnu Salgaonkar Alias Joao Augusto Cardozo (Since Dec) through Lr'S v. Subhash B. Velingkar and Anr.

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Namdeo Vishnu Salgaonkar Alias Joao Augusto Cardozo (Since Dec) through Lr'S v. Subhash B. Velingkar and Anr.

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