Appeal against decrees dismissing suit for declaration of ownership and changes in record of rights. Dismissed for failure to prove identity of property and non-execution of commissioner appointment.
Appeal dismissed; no order for costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
9-SA 2-23.DOC
Amrut
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 2 OF 2023
VENCESSLINA P. ARAUJO
(DECEASED, THR. LRS)… Appellants
Versus
COMUNIDADE OF LOUTOLIM,
THR. THE ADMINISTRATOR, AND
11 ORS… Respondents
Mr. Shailesh Redkar, Advocate for the Appellants.
CORAM: M. S. SONAK, J.
DATED : 16th FEBRUARY 2023
P.C.:
1. Heard Mr Redkar, learned counsel for the Appellants.
2. This appeal is directed against the concurrent decrees made by the trial Court and the First Appellate Court dismissing the Appellants' Regular Civil Suit No.279/2004/III seeking a declaration of ownership and to effect consequential changes in the record of rights.
3. The suit was based upon a registered sale deed dated 11.04.1979 in which the suit property was described. However, since
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the parties felt there was some ambiguity, this sale deed was rectified
on 15.05.1991 and again on 09.05.1995. Both rectifications were on
the issue of the precise identity of the property, which was the subject
matter of the original sale deed.
4. The suit was instituted because, in the survey records, the names of several parties other than vendors appear. Accordingly, a declaration was sought of ownership and consequent changes in the survey records.
5. In the suit, therefore, the issue of the precise identity of the property, which forms the subject matter of the sale deed dated 11.04.1979, was crucial. No proper evidence was led on this aspect. Such evidence was necessary, mainly because the vendors to the sale deed chose to remain ex-parte. Based upon the relief applied for in the suit, the Appellants/Plaintiffs desire to delete the names of other defendants in the survey records. The other defendants had raised a serious dispute on the identity of the suit property. They had claimed that the property in respect of which their names were entered was not the subject matter of the sale deed, which was rectified on two occasions.
6. Mr Redkar submits that an application had been made for the appointment of Commissioner, and such an application was allowed by the trial Court. He submits that, for some reason, the commission could not be executed. He, however, submits that the trial Court and the First Appellate Court committed jurisdictional error by ignoring
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the order dated 06.11.2017 made by the trial Court on Exhibit 114,
i.e. application for appointment of Commissioner.
7. Based on the above submission, Mr Redkar urged to formulate only the following substantial question of law.
(i) Whether the Ld. Trial Court as well as Ld. Lower
Appellate Court was committed an jurisdictional error by
ignoring the order dated 06.11.2017, passed by the trial
Court at Exb. 114, allowing application for appointment
for Commissioner, where in surveyor from land survey
department was appointed to do work of re-survey of the
plaintiff's property and to identify their properties in terms
of survey records?
8. From the perusal of concurrent judgments and decrees, it is evident that two Courts have considered the material on record and concluded that the plaintiffs failed to establish the precise identity of the suit property. Accordingly, the Courts have held that the plaintiffs failed to prove that the property which formed the subject matter of the twice rectified sale deed was the property in respect of which the survey entries included the names of other defendants.
9. Even though the trial Court in its order dated 06.11.2017, had allowed the application for the appointment of Commissioner, it is doubtful whether the issue involved in the suit could have been suitably resolved on the execution of the commission. The record also establishes without doubt that the sale deed was rectified twice precisely on the issue of the identity of the properties. If, despite such
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rectifications, the parties could not describe the property precisely,
then the inference that two Courts have concurrently drawn can
hardly be styled as perverse.
10. Besides, there is yet another significant circumstance due to which the substantial question of law as proposed does not arise or, in any case, will have to be answered against the Appellants.
11. The First Appellate Court has answered the issue of nonexecution of the commission by making the following observations in para 54:
"54. As far as the arguments of the ld. Advocate
for the plaintiffs that the Commissioner be
appointed to identify the property in view of the
catena of decision of the Hon'ble High court
and the Apex Court, it is seen from the records
of the ld. Trial Court that the application under
Order 26 Rule 9 CPC was filed by the plaintiffs
at exhibit 114 and the ld. Trial Court after
hearing both the parties passed an Order dated
06-11-2017 appointing a surveyor from the
land survey department to do the work of
resurvey of the plaintiffs property and to
identify their properties in terms of the survey
records. The records of the ld. Trial Court
reveals that although the plaintiffs deposited the
amount for appointment of the Commissioner
before the Nazir of the ld. Trial Court, the
plaintiffs did not take any steps in order to get
the resurvey done from the surveyor appointed
by the ld. Trial Court. The roznama of the ld.
Trial Court dated 28-09-2018 shows that all the
ld. Advocates had consented to fix the matter
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for final arguments which implies that the
plaintiffs did not want an independent surveyor
to survey their property and since they did not
press for it the arguments of plaintiffs that
Commissioner needs to be appointed in the
appeal cannot be accepted".
12. The Appellants, through their counsel, did not even press the execution of the commission in terms of the order dated 06.11.2017. Firstly, no steps were taken for the execution of the commission. Secondly, not even an application was filed for an extension of time to execute the commission. Thirdly, most significantly, the trial Court's roznama dated 28.09.2018 shows that the counsel for the Appellants consented to fix the matter for final arguments implying thereby the Appellants (original Plaintiffs) did not want an independent surveyor to survey the property. Finally, the point now sought to be pressed was not even raised before the trial Court. All these reasons are sufficient to hold that the proposed substantial question of law was not involved in the matter or was correctly decided against the Appellants.
13. For the above reasons, this appeal is dismissed.
14. There shall be no order for costs.
M. S. SONAK, J.
TARI AMRUT NAGESH Digitally signed by TARI AMRUT NAGESH Date: 2023.02.18 17:36:08 +05'30'
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2 issues framed by the court
Whether the Trial Court and First Appellate Court committed jurisdictional error by ignoring the order dated 06.11.2017 allowing application for appointment of Commissioner.
Whether the plaintiffs failed to establish the precise identity of the suit property as required by the evidence.
1 provisions across 1 enactments
VENCESSLINA P. ARAUJO (DECEASED, THR. LRS)
COMUNIDADE OF LOUTOLIM, THR. THE ADMINISTRATOR, AND 11 ORS
M. S. SONAK
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court