the original suit is not for recovery of money but is for damages. Therefore, section 102 of C.P.C is not applicable.

Section 102 of the C.P.C. provides that no Second
Appeal shall lie from any decree, when the subject matter of the
original  suit  is  for  recovery  of  money  not  exceeding  Rs.
25,000/-.  In the present case, the original suit is not for recovery
of money but is for damages.  Therefore, section 102 of C.P.C is
not applicable.  


IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO.  76  OF  2003

Shri Vishram Jaya Shetkar
alias Manohar Jaya Shetkar;

V E R S U S
1. Shri Nanu B. Shetkar,

                                                         CORAM: U. V. BAKRE, J.
                                            
                                     PRONOUNCED ON:  13 /7/2012.2

J U D G M E N T :
This  Second  Appeal  is  filed  against  the
Judgment and Decree dated 30/4/2003 passed by the learned
First  Additional  District  Judge,  South  Goa,  Margao  (First
Appellate Court, for short) in Regular Civil Appeal No. 98/1999.
2. The  said  Regular  Civil  Appeal  was  filed  by  the
defendant  of  Regular  Civil  Suit  No.  83/1992/B  against  the
Judgment and Decree dated 31/8/1999 passed by the learned
Civil Judge, Junior Division, Quepem (Trial Court, for short), in
the said suit.
3. The parties shall be referred to in the manner as they
appear in the cause title of the said Regular Civil Suit.
4. The  plaintiffs  had  filed  the  said  suit,  against  the
defendant, for damages of  Rs.18,800/- and they had also prayed
for interest at the rate of 18% per annum on the said sum of3
Rs.18,800/-, calculated at quarterly rests  as from 6/10/1992 till
the actual payment.
5. Case of the plaintiffs was as follows:
They are  co-owners in possession and enjoyment of
a landed property,  bearing survey no.19/17, situated at Amona
of  Quepem Taluka.  The name of the plaintiffs or their late
father has not been included in  survey records, which is an
error.  In the beginning of February 1992, the plaintiffs brought
about 200 laterite stones, 15 bags of cement, three truck loads of
sand and other construction material and deposited the same in
the  said   property,  in  order  to  construct  a  house  therein.
Thereafter, the plaintiffs started digging the foundation.  The
defendant is a mundkar, having his mundkarial house in the said
property.   The  construction  of  the  house  undertaken  by  the
plaintiffs  was  well  outside  the  mundkarial  rights  of  the
defendant.  However, the defendant filed a false, frivolous and
vexatious proceedings bearing Case no. JM/Mund/1/92 before4
the  Joint Mamlatdar of Quepem and also  used physical and
brutal  force  thereby  restraining  the  plaintiffs  from  doing
construction, due to which the plaintiffs could not go ahead with
the construction.  On 6/10/1992, after a period of nearly more
than six  months,  the  defendant having realized  that the  said
proceedings filed by him before the Joint Mamlatdar of Quepem
have no force and having further realized that the same may
result in dismissal, the defendant withdrew  the application for
injunction filed by him.  The plaintiffs had advanced a sum of
Rs. 2500/- to the masons, which the plaintiffs lost.  Three truck
loads  of  sand brought  by  the  plaintiffs  got  washed away  in
rains, thereby causing loss to the tune of Rs.1800/-.  The cement
bags  were  rendered  useless  having  become  hard,  thereby
causing loss to the tune of Rs.1500/-.  Large number of laterite
stones deposited at the site were robbed and taken away by the
people and some of them, due to exposure to heat and sun, got
damaged, due to which the plaintiffs suffered loss of Rs. 2,000/-.
The plaintiffs have spent an amount of Rs.1000/- in defending5
the  proceedings  before  the  Joint  Mamlatdar,  which  include
advocate's fees, transport charges and miscellaneous expenses.
In the course of attending the Court of Joint Mamlatdar, the
plaintiffs  had  to  forgo  their  routine  work.  The  false  and
vexatious  proceedings  filed  by  the  defendant  caused  mental
tension, agony and hardship, on account of which, they have
suffered  loss  to  the  tune  of  Rs.10,000/-.   The  plaintiffs,
therefore,  claimed  the  total  sum  of  Rs.18,800/-  along  with
interest.
6. By  of  Written  Statement,  the  defendant  stated  as
under:
The plaintiffs have no locus standi to file the suit
since they  have no right over the said property bearing survey
no.  19/17  of  village  Amona.   The  plaintiffs  are  permanent
residents  of  Sanguem  having  their  residential  house  and
business at Sanguem.  The defendant is residing as mundkar of
Shri Ratnakar Shet who is the real owner of the said property.6
The defendant has been duly registered as mundkar before the
Mamlatdar, Quepem in Case No. JM/Mund/X-A/203/81, in the
year 1981.  The plaintiffs tried to dispossess the defendant due
to which  defendant had to file the proceedings before the Joint
Mamlatdar, Quepem being Case No.JM/Mund/1/92.  The said
proceedings were withdrawn as no relief was granted by the
Mamlatdar, even after a period of six months.  The defendant
never used any brutal force nor restrained the plaintiffs from
doing the work. No ex-parte order was passed by the Mamlatdar.
The  plaintiffs  dug  foundation  for  construction  in  the  said
property,  but  due  to  the   intervention  of  the  bhatcar,  Shri
Ratnakar Shetkar, the same was refilled and thus it is the bhatcar
who stopped the said work.    No laterite stones or other material
were deposited by the plaintiffs at the site and the plaintiffs have
not suffered any loss. 
7.           The plaintiffs examined himself before the Trial court
as PW. 1 and one  Anrut  Shetkar as  PW. 2.  The  defendant7
examined his Power of Attorney holder, namely Uday Shetkar as
DW. 1.  The defendant examined himself as DW. 2 and said Shri
Ratnakar Shetkar as DW. 3.
8.       Upon consideration of the entire material on record,
the learned Trial Court held that  the plaintiffs have proved that
they are co-owners in possession of the said property by virtue
of Exhibits DW.3/D1-Cross (Birth certificate of Abolem) and
Exhibit  DW.3/D2-Cross  (Deed  of  relinquishment  with
acquittance), which documents were produced by the plaintiffs
in the cross-examination of DW. 3. The trial Court further held
that  due  to  the  acts  of  the  defendant,  the  plaintiffs  suffered
damages to the tune of Rs. 8660.20 with interest at the rate of
18% per annum calculated at quarterly rests from 6/10/1992 till
actual payment. The suit came to be decreed  partly, as above.
9. The defendant approached the District Court, Margao
in Regular Civil Appeal No. 98/1999. The First Appellate Court8
allowed the appeal and set aside the impugned judgment and
decree of the Trial Court.  The First Appellate Court held that
the documents produced by the plaintiffs in cross-examination
of DW. 3 could not have been considered by the Trial Court.
The  First  Appellate  Court  held  that  the  plaintiffs  have  not
proved that they are the co-owners in possession of the said
property.   The  First  Appellate  Court  further  held  that  the
plaintiffs also could not prove the damages.
10. The plaintiffs have filed this Second Appeal, which
has been admitted on  the following substantial questions of law:
1) Whether the learned Appellate Court could  
have  faulted  the  learned  Trial  Court  for  
placing reliance upon a public document, on 
the  sole  ground  that  the  same  was  not  
formally tendered in evidence, through the  
plaintiff or the plaintiffs' witnesses, but  rather
the same came to be brought on record during 9
the course of cross examination of defendant's
witness?
2) Whether in terms of Section 58 of the Indian 
Evidence Act, 1872, the admissions made by 
parties  during  the  hearing/trial  can  be  
accepted as substantive evidence and reliance 
placed thereupon?
3) Whether the defendant, without setting up any
title  in  himself,  could  have  vaguely  urged  
defences questioning the title of the appellants
to the suit property, by setting up a title in a 
third party, or whether such defence could be 
said to have been barred under the Doctrine of
“juster-ti”?
4) Whether the present Second Appeal filed on 10
30/7/2003  is  maintainable  in  view  of  the  
amended  provisions  of  the  Code  of  Civil  
Procedure by virtue of  section 5 r/w section 
16  of  the  Code  of  Civil  Procedure  
(Amendment) Act, 2002?
11. Mr.  D.  J.  Pangam,  learned  Advocate,  argued  on
behalf  of  the  plaintiffs  whereas,  Mr.  Galileo  Teles,  learned
advocate, argued on behalf of the defendants.
12. Learned Counsel  for  the  plaintiffs  argued  that  the
birth  certificate  at  Exhibit  Dw.3/D1-Cross,colly  proves  that
Abolem is the daughter of Narayan Shetkar and that the deed of
relinquishment and acquittance (Exhibit DW.3/D2-Cross, Colly)
sufficiently  proves  that  said  Abolem,  daughter  of  Narayan
Shetkar and Parvati, had relinquished and transferred her rights
in moveable and immoveable properties in favour of Jaya, the
father of the plaintiffs and since DW.3 stepped into the witness11
box and claimed that he does not know the plaintiffs at all, it
was in his cross examination that the birth certificate of Abolem
and  the  said  deed  of  relinquishment  was  produced,  which
documents duly prove that the plaintiffs are the co-owners.  He
further pointed out that PW. 2 who is admittedly the co-owner of
the suit property has stated that the plaintiffs have share in this
property.  He  contended  that  the  learned  Trial  Court  rightly
placed  reliance  on  the  said  public  documents  which  were
produced in the cross-examination of DW. 3 and based on that
had rightly held that the plaintiffs had proved that they were coowners in possession of the said property.  According to learned
counsel, the  First Appellate Court has erred in reversing the
finding of the Trial Court on the ground that the said documents
came in cross-examination of DW. 3 and hence could not have
been  considered.   He  relied  upon  “Oriental  Insurance
Company Ltd Vs. Premlata Shukla and others”  [(2007) 13
SCC  476], wherein  the  Apex  Court  has  held  that  a  party
objecting  to  the  admissibility  of  a  document  must  raise  its12
objection at the appropriate time.  If the objection is not raised
and the document is allowed to be marked, and that too, at the
instance of a party which had proved the same and wherefore
consent of the other party has been obtained, the former cannot
be  permitted  to  turn  around  and  raise  a  contention  that  the
contents of the documents had not been proved and, thus, should
not  be  relied  upon.  He  has  also  relied  upon  “Balakrishna
Kamathi Vs. Ganesa   Pai and others” (AIR 1954 TravancoreCochin, 209), in order to buttress his above contentions.  In the
case (supra) it has been held that where the objection to be taken
is not that the document is  itself inadmissible, but that the mode
of proof put forward is irregular or insufficient, it is essential
that  the  objection  should  be  taken  at  the  trial  before  the
document is marked as an exhibit and admitted to the record.   A
party cannot lie by until the case comes before a Court of appeal
and  then  complain  for  the  first  time  of  the  mode  of  proof.
Learned Counsel for the plaintiffs  then argued that though the
defendant had no right to the said property and  the construction13
undertaken by the plaintiffs was outside the mundkarial rights of
the  defendant,  he,  with  malafide  intention  filed  proceedings
before  the  Joint  Mamlatdar  and  also  forcibly  obstructed  the
plaintiffs from undertaking the construction, which was legal.
He further pointed out that the defendant, without any rhyme or
reason, withdrew the said proceedings after about six and half
months, and it is because of that that the plaintiffs suffered loss.
According to learned counsel, the  Trial  Court  analyzed  the
entire evidence on record in detail and came to the conclusion
that  the  plaintiffs  are  entitled  to  Rs.  8660.20,  which  is
reasonable amount towards damages sustained by the plaintiffs
on account of the acts of the defendant.  He fairly conceded that
the Trial Court ought not to have granted interest at quarterly
rests.
13. Insofar as the substantial question of law at serial no.
4 is concerned, Mr. Pangam,  learned Advocate for the plaintiffs,
argued that section 102  of the Code of Civil Procedure(C.P.C.),14
which has been amended by virtue of section 5 of the Code of
Civil Procedure (Amendment) Act, 2002, pertains to recovery of
money  and  the  present  suit  is  for  damages.   He  further
contended that this suit was filed in the year 1992 when the said
amendment was not existing.  According to learned counsel, the
plaintiffs' right to file the appeal goes to the date of filing of the
suit and cannot be taken away by amendment which came into
force in July 2003.  He, therefore, submitted that the Second
Appeal  be allowed.
14. Per contra, Mr. Galileo Teles,  learned Counsel for
the defendant, argued that though the suit is titled as one for
damages, however, prayer clause “A” shows that the same is for
recovery of money and hence, in terms of amended section 102
of C.P.C., the second appeal was not maintainable.  He further
pointed out that  the suit was filed in the year 1992 and the
plaintiffs had  the right of first appeal against  the impugned
judgment and decree of the Trial Court  but the amendment to15
section 102 of C.P.C. came into force from 1/7/2003 due to
which the second appeal filed on 30/7/2003 is not maintainable.
He further argued that the plaintiffs had all the opportunity to
rely upon the documents  produced  in cross-examination of
DW. 3 at the time when they had filed the suit and also during
their evidence.  The grievance of  Mr. Teles is that DW. 3 was
the last witness of the defendant and that the defendant had no
chance to rebut the evidence of the plaintiffs with regard to the
documents produced in cross-examination of DW. 3.  He further
argued that there is doubt whether Narayan Shetkar was also
known  as  Narayan  Lolo  Shetkar.  There  is  also  controversy
regarding  Abolem  being  the  daughter  of  said  Narayan  and
Parvati. According to him, the First Appellate Court has rightly
rejected  the  said  documents.   He,  therefore,  supported  the
finding  of  the  First  Appellate  Court  to  the  effect  that  the
plaintiffs could not prove that they were the co-owners  of the
suit  property.  Learned  counsel  for  the  defendant  further
contended that admittedly the defendant is the mundkar in the16
suit property and proceedings under Case No. JM/Mund/1/92
were bonafide proceedings filed by the defendant to protect his
own rights.  He contended that since the Mamlatdar did not give
any  relief,  the  defendant  decided  to  withdraw  the  said
proceedings.  He argued that there is absolutely no finding on
record to establish that the said proceedings were malicious or
vexatious or false.  In any case, Mr. Teles contended that no exparte order was passed by the Mamlatdar and therefore,  the
plaintiffs were not restrained by anyone from going ahead with
their construction.  Therefore, according to learned counsel, the
claim of the plaintiffs has no substance.  He further pointed out
that the plaintiffs had not objected to the withdrawal of the said
proceedings and had also not contended in the said proceedings
that the same are malicious or vexatious.  Alternatively, Mr.
Teles  contended  that  the  plaintiffs  had  miserably  failed  to
quantify the damages and that the learned First Appellate Court
has rightly dealt with each claim and has held that the same has
not been proved.   Learned counsel for the defendant argued that17
there is absolutely no ground for interference with the impugned
judgment.   He,  therefore,  submitted  that  the  appeal  be
dismissed.
15. I have gone through the entire material on record.
16. It is seen from the records that there is no dispute that
the defendant is the mundkar having his mundkarial house in the
same property, in which the plaintiffs wanted to undertake the
construction.  The defendant had filed the proceedings under
Case no. JM/Mund/1/92 under section 6(1) of the Goa, Daman
and Diu Mundkar  (Protection from Eviction) Act, 1975 alleging
that the plaintiffs tried to dispossess him from enjoying  his
easementary right over the area behind his residential house.
The defendant prayed to restrain the plaintiffs from constructing
any  structure  in  survey  no.19/17.    The  defendant  had  also
prayed for  an ex-parte order in terms of the above prayer.  It is
not the case of the plaintiffs that they filed reply to the above18
application  alleging  that  these  are  malicious  or  vexatious
proceedings.   It is pertinent to note that no ex-parte order was
passed  by  the  Joint  Mamlatdar  in  the  said  proceedings  and,
therefore, there was no restriction upon the plaintiffs to proceed
with the construction.  There was no legal requirement for the
plaintiffs to maintain status quo only because some proceedings
were filed by the defendant.  What is pertinent to note is that on
6/10/1992, both the parties appeared before the learned joint
Mamlatdar along with their advocates and the learned advocate
for the defendant made an endorsement on the application that
he is withdrawing the same.  The plaintiffs or their advocate did
not object.  The proceedings were closed.    The learned Trial
Court  has  nowhere  held  that  the  defendant  had  filed  false,
vexatious or malicious proceedings against the plaintiffs.  The
Trial Court has not held that the defendant had used physical
and brutal force thereby restraining the plaintiffs  from doing the
construction.  The basis for claiming damages was the filing of
proceedings before the Joint Mamlatdar, which according to the19
plaintiffs,  were  vexatious,  malicious  and  false  and  use  of
physical and brutal force, thereby restraining the plaintiffs from
doing the construction.  Since the above foundation of the claim
for damages, itself, was not proved, the question of proving the
quantum of damages did not arise.  On this ground alone, this
second appeal is liable to be dismissed.
17. Admittedly, the names of plaintiffs are not recorded
in the survey records of survey no. 19/17, which is exclusively
recorded in the name of Ratnakar Shetkar (DW. 3). It is not the
case of the plaintiffs, as pleaded in the plaint, that their father
was also known as Zaia Naique and that said Zaia Naique or
Zaia Xetcar  had acquired right through Abolem. There is no
pleading in the plaint that Abolem was the daughter of Naraina
Xetkar or Naraina Naique and his wife Parvoti and that these
Narain Xetkar and his wife Parvoti were original owners of the
property  now  bearing  survey  no  19/17  of  Amona  village.
According to PW. 1, his father had purchased the said property20
sometime in the year 1936. But no sale deed has been produced,
though he was directed by the Trial court to produce the same.
A suggestion has been put to DW. 1 that the plaintiffs and their
family members are beneficiaries of Narayan Rama Shetkar. A
suggestion has also been put to DW. 1 that the plaintiffs' father
purchased right  in  the  suit property  from Aboli Shetkar, the
daughter of Narayan Shetkar. It is not the case of the plaintiffs
that  the documents namely DW.3/D-1(cross), which is the birth
certificate of Abolem  and Exhibit DW.3/D-2 (cross ),which is,
the Deed of Relinquishment with Acquittance dated 2/4/1946
were not known or available with the plaintiffs when they filed
the suit or when the evidence of the plaintiffs was recorded.
When the said documents were shown to DW. 3 in his crossexamination,  he has  stated  that  these are  false  documents.
DW. 3 has specifically denied that the father of the plaintiffs and
Savlo Shetkar had  purchased the share of Abolem from her and
her husband.  He has denied that Abolem was the daughter of
Narayan shetkar. The said documents have not been accepted to21
be true by DW. 3 and there was no opportunity to the defendant
to cross examine the plaintiffs' witnesses on the said documents.
The birth certificate produced as Exhibit D.W.3/D-1/Cross-colly
says that Abolem is the daughter of Narayan alias Rebdi Lolo
Shet and his wife Parvoti. Neither it is pleaded in the plaint, nor
is it stated by PW.1 or his witnesses that the name of wife of
Narayan Shetkar was Parvati or that Narayan Shetkar was also
known as Narain alias Rebdi Lolo Shet and was married to
Parvoti.  In fact, the plaintiffs claim to be beneficiaries of one
Narayan Rama Shetkar. There is nothing on record to prove that
Abolem was the daughter of said Narayan Rama Shetkar. The
said documents do not prove the nexus between the plaintiffs
and the suit property.  I do not find any perversity in the findings
of the learned First Appellate Court to the effect that the Trial
Court had erred in arriving at the conclusion that Abolem is the
daughter of Narayan Shetkar merely on the basis of Exhibits
DW.3/D-1(cross) and Exhibit DW.3/D-2 (cross ).22
18. In the light of the above, the judgment of the Hon'ble
Apex Court in the  case of  “Oriental Insurance Company
Ltd.”, (supra) and that of the Full Bench of the TravancoreCochin High Court in the  case of  “Balakrishna Kamathi”,
(supra) are not applicable to the present case.  In any case, the
plaintiffs through PW.1 or his witnesses have not claimed their
title to the suit property through the said documents produced in
cross of DW. 3. The defendants had no opportunity to rebut
those documents. Hence, as rightly held by the learned First
Appellate Court, the plaintiffs cannot be held to have proved to
be  co-owners of the said property.
19. The plaintiffs have claimed damages on the ground
that on account of  false, vexatious and frivolous proceedings
filed by the defendant before the Joint Mamlatdar of Quepem
and because of physical and brutal force used by the defendant
thereby restraining the plaintiffs from doing the construction, the
plaintiffs could not go ahead with the construction.  Insofar as23
the alleged physical and brutal force used by the defendant is
concerned, there is nothing on record showing that the plaintiffs
had lodged any police complaint against the defendants.  As far
as the proceedings before the Joint Mamlatdar are concerned,
they do not appear to be malafide, filed only to cause loss to the
plaintiffs.  There  was  no  ex-parte  order  made  against  the
plaintiffs.  In the circumstances above, there was nothing which
had stopped the plaintiffs from carrying out the construction.
On this ground itself, the plaintiffs cannot claim any damages
from the defendant.  Be that as it may, the finding of the First
Appellate Court to the effect that the trial Court has not assessed
the evidence in its proper prospective while granting damages to
the extent of Rs. 8660.20 with interest at the rate of 18% per
annum with quarterly rests is not without any basis and in any
case it cannot be called as perverse.   Hence, no interference is
called for with the said finding of the First Appellate Court.
20. Section 102 of the C.P.C. provides that no Second24
Appeal shall lie from any decree, when the subject matter of the
original  suit  is  for  recovery  of  money  not  exceeding  Rs.
25,000/-.  In the present case, the original suit is not for recovery
of money but is for damages.  Therefore, section 102 of C.P.C is
not applicable.  
21. In  view  of  the  discussion  supra,  the  substantial
questions, as framed,  are all answered against the plaintiffs,
except the one at serial no. 4.
22. There is no merit in the present second appeal which
deserves to be rejected.
23. In  the  result,  the  second  appeal  is  dismissed,
however, with no order as to costs.
                                                               U. V. BAKRE, J
AP/-25