Suresh/Surekha
Kakodkar merely denied paragraphs 1 and 2 of the plaint in
Regular Civil Suit No. 211/2000 for want of knowledge. Rule 3
of Order VIII of the Code Civil Procedure provides that it shall
not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant
must deal specifically with each allegation of fact of which he
does not admit the truth, except damages. Rule 4 of Order VIII
provides that where a defendant denies allegation of fact in the
plaint, he must not do so evasively, but answer the point of
substance. The rule further says that if it is alleged that the
defendant received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he
must deny that he received that sum or any part thereof or else
set out how much he received and if an allegation is made with
diverse circumstances, it shall not be sufficient to deny it along
with those circumstances. Then, rule 5(1) of Order VIII provides
that every allegation of fact in the plaint, if not denied
specifically or by necessary implication or stated to be not
admitted in the pleading of the defendant, shall be taken to be
admitted except as against the person under disability, provided
that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission. In view of the
above provisions of C.P.C., the finding of the learned First
Appellate Court, in Regular Civil Appeal No. 21/2004 that
Suresh/Surekha Kakodkar had not challenged the co-ownership
of Karmalis and Prabhu Dessai in respect of the suit property
bearing Survey No. 143/1 of village Kakora, cannot be said to be
erroneous. Besides the above, the names of Karmalis and
Prabhu Dessai were figuring in Form No. III of survey No. 143/1.
Therefore, it is a fact that the issue no. 1 as to whether the
plaintiffs prove that they are co-owners of the property bearing
Survey No. 143/1, as framed by the Trial Court, in Regular Civil
Suit No. 211/2000, did not arise as it had to be deemed to be an
admitted fact that the plaintiffs are co-owners of the suit
property. Be that as it may, Karmalis and Prabhu Dessai had
produced sufficient oral evidence on record to prove their coownership,
in respect of survey no. 143/1.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEALS NO. 3 of 2005 and 9 of 2009
SECOND APPEAL NO. 3 of 2005
Shri Suresh Kakodkar,
Versus
Shri Vinayak Gopinath Naik
Karmali
CORAM :- U. V. BAKRE, J.
Pronounced on : 4 th July, 2014 .
Citation; 2015(3) ALLMR614
The above two appeals can be conveniently disposed of
by common judgment as they pertain to the same subjectmatter.
2. Heard Mr. Usgaonkar, learned Counsel appearing on
behalf of the appellants. None present for the respondents,
though they have been duly served after admission, in both the
appeals.
3. The Second Appeal No. 3/05 is directed against the
judgment and decree dated 17/09/2004 passed by the learned
Ad hoc Additional District Judge, FTC-II in Regular Civil Appeal
No. 21/2004. The said Regular Civil Appeal No. 21 of 2004 was
filed against the judgment and decree dated 29/01/2004 passed
by the learned Civil Judge, Senior Division at Quepem (Trial
Court, for short) in Regular Civil Suit No. 211/2000. The
respondents were plaintiffs and the appellants were defendants
in the said Civil Suit.
4. The Second Appeal No. 9/09 is directed against the
judgment and decree dated 16/10/2008 passed by the learned
District Judge- 4, South Goa, Margao (First Appellate Court, for
short) in Regular Civil Appeal No. 88/2008. The said Regular
Civil Appeal No. 88/2008 was filed against the judgment and
decree dated 29/04/2008 passed by the learned Civil Judge,
Junior Division, Quepem (Trial Court, for short) in Regular Civil
Suit No. 46/96/B. The appellants were plaintiffs and the
respondent was defendant in the said suit.
5. For the sake of convenience, the plaintiffs of Regular
Civil Suit No. 211/2000 shall, hereinafter, be referred as
“Karmalis and Prabhu Dessai”; the defendants of Regular Civil
Suit No. 211/2000 who are the plaintiffs of Regular Civil Suit No.
46/1996 shall hereinafter be referred to as “Suresh/Surekha
Kakodkar; and the defendant of Regular Civil Suit No. 46/1996
shall hereinafter be referred to as the “Municipal Council”.
6. Karmalis and Prabhu Dessai had filed the said
Regular Civil Suit No. 211/2000 for declaration that
Suresh/Surekha Kakodkar have no right, title or interest to the
suit property and, therefore, the plaintiffs are entitled to
demolish the illegal structure made by Suresh/Surekha Kakodkar
in the suit property bearing Survey No. 143/1 of village Kakora
of Quepem Taluka; for mandatory injunction directing
Suresh/Surekha Kakodkar to demolish the illegal structure being
House No. 658 made in the suit property; for permanent
injunction to restrain Suresh/Surekha Kakodkar, their servants,
agents and relatives from interfering with, planting in,
occupying, trespassing and obstructing the pathway in the suit
property and/or doing any act of interference in the suit property
and for mandatory injunction directing Suresh/Surekha
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Kakodkar to remove the rubble stones piled fencing, coconut
saplings or any plantation made in the suit property.
7. Suresh/Surekha Kakodkar had filed the said Regular
Civil Suit No. 46/1996 for permanent injunction to restrain the
Municipal Council from demolishing the fencing and from acting
under the notice bearing pathway/reg/96-11.52 dated
18/07/1996.
8. Case of Karmalis and Prabhu Dessai, in Regular Civil
suit No. 211/2000, in short, was as follows :
They along with some others are co-owners in joint
possession of a property known as “Noigalivorli Mordi” alias
“Noigal” also known as “Madheagalivorli Mordi” bearing Land
Registration Nos. 16729 and 975 and Matriz Nos. 667 and 166
and presently surveyed under No. 143/1 of village Kakora which
is the suit property. There is a house which is numbered as “G”
in the survey records, belonging to Shri Naguesh Bhikaji
Shirodkar, who is a mundkar. Suresh Kakodkar is the son of
Shri Baban Bhikaji Shirodkar, who is the brother of said
Naguesh Bhikaji Shirodkar and Surekha Kakodkar is the wife of
said Suresh. Suresh/Surekha Kakodkar have illegally
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constructed a gada which was extended from time to time and
they started residing therein, which gada was in front of the said
house No. “G”. There is a traditional pathway which spurts from
the public road on the eastern side and goes to the west and
leading to the paddy field in Survey No. 142 and other ward.
The said pathway passes in between houses no. G, H, L and I, J,
K, M and which exists from time immemorial and is used by the
villagers and other persons. Suresh/Surekha Kakodkar, who
have no right, title or interest, all of a sudden, on 08/07/1996,
piled and dumped laterite stones and blocked the said traditional
pathway passing between the houses No. G and I, due to which,
the residents of the ward filed complaint dated 08/07/1996 to the
Chief Officer of Municipal Council for removal of laterite stones
and clearances of the traditional pathway. The Municipal Officer
inspected the site and drew sketch of the traditional pathway.
On 09/07/1996, the Chief Officer of Municipal Council issued a
notice to Suresh Kakodkar to clear the pathway within 24 hours,
but Suresh/Surekha Kakodkar did not comply with the same and
filed reply dated 10/07/1996 thereby denying the blocking of any
pathway. Suresh Kakodkar, through his Advocate, issued notice
to the Chief Officer alleging that he is mundkar of Shri Vasudev
Gopinath Karmali in the property bearing Survey No. 143/1 and
admeasuring 540 square metres and that the stones were piled
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within the mundkarial dwelling house. Suresh/Surekha
Kakodkar filed Regular Civil Suit No. 46/96/B against the
Municipal Council and obtained injunction which was,
thereafter, confirmed. Suresh/Surekha Kakodkar have no right,
title or interest to the suit property. Hence, the suit.
9. The case of Suresh/Surekha Kakodkar in both the
suits was as under :
They have their mundkarial house in the property
and that they had agreed to purchase the said mundkarial house
along with the land adjacent thereto which is in their occupation
and having a total area of 540 square metres. The said dwelling
house bears Kakora-Municipal Council House No. 658 and the
said house was constructed about 60 years back by the father of
Suresh Kakodkar and father-in-law of Smt. Surekha Kakodkar.
By virtue of an agreement of sale, they have agreed to purchase
the said land from the Bhatkar. They are otherwise owners by
adverse possession. On the northern side of the house, a
pathway/access has been constructed by the Municipal Council,
which has width of 2.60 metres and which leads to the houses of
Pandurang Kakodkar and others and on the southern side of the
house also, there is an access of width of 3 metres for the
residents of other houses. The house as well as the fence around
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their house are in existence for last 60 years and there was
never a pathway through their property. The Municipal Council
is trying to demolish the fencing only to accommodate Mr.
Pandurang Kakodkar, who otherwise has a 6 metres wide road
towards south of his house.
10. The Municipal Council, in Regular Civil Suit No.
46/1996, in its written statement, alleged that the suit was not
maintainable as there was no cause of action against the
defendant. The Municipal Council stated that Suresh/Surekha
Kakodkar had no right to the suit pathway and had also not
produced any documents to establish any right over the said
pathway which is about 40 years old and is being used by the
public of Madegal Ward without any interference of any person
and some time in the month of July 1996, Suresh/Surekha
Kakodkar tried to block the said pathway by piling laterite stones
without any authority. The Council stated that the said pathway
was outside the house of Suresh/Surekha Kakodkar. It was
alleged that the said blockage was removed by one of the coowners
of the said property bearing Survey No. 143/1, namely
Advocate Sanjay Hari Prabhudessai and some other villagers of
the locality on 27/07/1996 in presence of P.I. Tony Fernandes of
Curchorem Police Station and Joint Mamlatdar of Quepem and,
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therefore, the said pathway is now open for public and there is
no obstruction to the same. The Municipal Council also stated
that the suit was bad for non-joinder of necessary parties i.e. the
owners of the suit property. It was alleged that the said
property bearing Survey No. 143/1 is owned by the five owners.
The case of Suresh/Surekha Kakodkar was denied.
11. Following issues were framed by the learned trial
Court, in Regular Civil Suit No. 211/2000 :
“1. Whether the plaintiffs prove that they are coowners
of the suit property ?
2. Whether the plaintiffs prove that the
defendants interfered with the suit property
including the pathway ?
3. Whether the defendants prove that they are
owners by adverse possession of the suit property ?”
ADDITIONAL ISSUE
1. Whether the defendants prove that they are
mundcars of the landlord Shri Gurudas Karmali and
said Gurudas has agreed to sell to them an area of
540 square metres wherein their mundcarial house
is situated ?
12. In the said Regular Civil Suit No. 211/2000, the
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plaintiffs (Karmalis and Prabhu Dessai) examined three
witnesses in support of their case and produced various
documents, whereas the defendants (Suresh/Surekha Kakodkar)
examined one witness and they also produced various
documents.
13. Upon consideration of the entire evidence on record,
the learned Trial Court, in the said Regular Civil Suit No.
211/2000, vide judgment and order dated 29/01/2004, held that
both the parties could not prove their cases. All the issues,
therefore, came to be answered in the negative and
consequently, the said suit came to be dismissed.
14. Karmalis and Prabhu Dessai filed Regular Civil
Appeal No. 21/2004, against the judgment and decree dated
29/01/2004. The learned First Appellate Court formulated the
following points for determination :
“1. Whether the plaintiffs have proved that they are
entitled for permanent and mandatory injunction
against the respondents/ defendants ?
2. Has the learned Civil Judge erred in
dismissing the suit ?”
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15. The learned First Appellate Court, by judgment and
order dated 17/09/2004, partly allowed the Regular Civil Appeal
No. 21/2004 and quashed and set aside the judgment dated
29/01/2004. The First appellate Court found that in their
pleadings, Suresh/Surekha Kakodkar had not challenged the coownership
of Karmalis and Prabhu Dessai over the property
bearing Survey No. 143/1 of village Kakora. It was found that
Suresh/Surekha Kakodkar had not specifically averred that
Karmalis and Prabhu Dessai did not have right over the said
property bearing Survey No. 143/1. It was also found that
Suresh/Surekha Kakodkar had not pleaded that the said property
bearing Survey No. 143/1 was not common and undivided
property. In the face of the absence of specific denial by
Suresh/Surekha Kakodkar in their written statement in said Civil
Suit No. 211/2000, the First Appellate Court held that the issue,
whether the plaintiffs prove that they are co-owners of the
property bearing Survey No. 143/1, did not arise. The First
Appellate Court found that at one hand, the Suresh/Surekha
Kakodkar claimed to be residing in the said property as
mundkars and at the other hand, they were claiming to be
holding the land and the house by adverse possession. Both the
said pleas of Suresh/Surekha Kakodkar were held to be
destructive of each other. The First Appellate Court observed
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that it was clear that Suresh/Surekha Kakodkar did not know as
to in what capacity they were holding the land and the house
Survey No. 143/1. The First Appellate Court found that the
names of Karmalis and Prabhu Dessai were figuring in survey
records, whereas the names of Suresh/Surekha Kakodkar were
not at all figuring therein. It was also found that
Suresh/Surekha Kakodkar had not produced any documents to
prove that they are mundkars of the house situated in Survey
No. 143/1. The First Appellate Court observed that
Suresh/Surekha Kakodkar did not claim any right to the house
No. “G” shown in the survey plan, but they claimed to be
mundkars of the house bearing Municipal No. 658. It was found
that no declaration nor any registration certificate as mundkar
was produced and also no evidence of adverse possession was
produced. The partition deed was found to be not pertaining to
survey no. 143/1. It was, therefore, held that Suresh/Surekha
Kakodkar failed to prove that they had any right in the property
bearing Survey No. 143/1. The First Appellate Court held that
Karmalis and Prabhu Dessai proved their right to the suit
property bearing Survey No. 143/1 and that Suresh/Surekha
Kakodkar had no right to the same. The First Appellate Court
further held that the learned trial Court rightly refused the
prayer of mandatory injunction in respect of the gada since
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Karmalis and Prabhu Dessai admitted in cross-examination and
also in the plaint that Suresh/Surekha Kakodkar constructed the
gada about 10 years back and have been extending the same
from time to time. The First Appellate Court held that the prayer
of mandatory injunction in respect of the house No. 658 did not
lie because of delay and laches and also due to acquiescence.
The First Appellate Court held that Karmalis and Prabhu Dessai
had made out a case for permanent injunction and for removal of
the fence and plantation. Therefore, the judgment and decree
dated 29/01/2004 of the Trial Court was quashed and set aside.
Suresh/Surekha Kakodkar, their agents and relatives, etc. have
been permanently restrained from doing any construction or
interfering with or planting in the property bearing Survey No.
143/1 except using dwelling house bearing Municipal Council
No. 658 and using the property for coming and going to the said
residential house. Suresh/Surekha Kakodkar have been directed
to remove the rubble stones piled fencing and to remove any
plantation in the said property bearing Survey no. 143/1.
16. Following issues were framed by the learned Trial
Court, in Regular Civil Suit No. 46/1996 :
“1. Whether the plaintiff proves that they are in
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possession and enjoyment of an area of 540 sq. mtrs
in survey no. 143/1 over an agreement with his
Bhatkar ?
2. Whether the plaintiff proves that there is a
laterite stone fencing around her house since
several years ?
3. Whether the plaintiff proves that action of
defendant to clear alleged pathway through her suit
plot in collusion with Pandurang Kakodkar is
illegal ?
4. Whether the defendant proves that the suit is
bad for non-joinder of other co-owners ?
5. whether the defendant proves that a pathway
has been existing through plaintiffs plot since last
40 years and used by the people of locality over
some time ?
6. Whether the defendant proves that fencing
was demolished by Adv. Sanjay Prabhudessai and as
such suit is infructuous ?
7. What Order? What Relief ?”
17. In said Regular Civil Suit No. 46/1996, Suresh/Surekha
Kakodkar examined Smt Surekha Kakodkar as PW1, Smt.
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Alexinha Misquita as PW2 and Umesh Savalaram Ajgaonkar as
PW3. The Municipal Council did not examine any witness.
18. Upon consideration of the entire material on record,
the learned Trial Court, in the said Regular Civil Suit No.
46/1996, vide judgment dated 29/04/2008, held that
Suresh/Surekha Kakodkar proved that they are in possession and
enjoyment of an area of 540 square metres from Survey No.
143/1 by virtue of an agreement with the Bhatkar. The Trial
Court further held that Suresh/Surekha Kakodkar had proved
that there was laterite stone fencing around their house for the
last several years. The Trial Court, however, held that the said
pathway has been existing through the plot of Suresh/Surekha
Kakodkar since last 40 years and used by the people of locality
over quite some time. Issues no. 1, 2 and 5 were answered in
the affirmative, whereas issues no. 3, 4 and 6 were answered in
the negative. Consequently, the suit was dismissed.
19. Aggrieved by the judgment and decree of the Trial
Court in Regular Civil Suit No. 46/1996, Suresh/Surekha
Kakodkar filed Regular Civil Appeal No. 88/2008 before the
learned District Court, South Goa. The learned First Appellate
Court formulated the following point for determination:
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“Whether the plaintiffs have any right to property
known as Madegal, also known as Madegalvaril
Mordi, Cacora bearing survey no.143/1 of
Quepem ?”
20. The First Appellate Court, vide judgment and order
dated 16/10/2008 dismissed the said Regular Civil Appeal No.
88/2008. The First Appellate Court found that in the Regular
Civil Suit No. 46/1996, at exhibit 39, there was a judgment
passed by the Additional District Judge, Fast Track Court, South
Goa, Margao in Regular Civil Appeal No. 21/2004 dated
17/09/2004, wherein it was held that Suresh/Surekha Kakodkar
had failed to prove that they have any right in the property
bearing Survey No. 143/1. The First Appellate Court observed
that the Trial Court ought to have taken into consideration the
said findings of the Additional District Judge to the effect that
Suresh/Surekha Kakodkar had no right to the property bearing
Survey No. 143/1 except to their dwelling house No. 658. The
First Appellate Court also took into consideration that though
Suresh/Surekha Kakodkar claimed to be mundkars, however,
PW1 (Surekha Kakodkar) had stated that the purchase
application was dismissed. In view of the above, the appeal also
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came to be dismissed.
21. Aggrieved by the judgment and decree dated
16/10/2008 of the First Appellate Court, passed in Regular Civil
Appeal No. 21/2004, Suresh/Surekha Kakodkar have filed the
aforesaid Second Appeal No. 3/2005 which has been admitted
on the following substantial questions of law :
“1. Whether in a suit for injunction filed by the
plaintiffs claiming to be the co-owners of the suit
property can the defendants be injuncted from the
suit property without having reference or regard to
the title of the plaintiffs to the property, and holding
that the defendants have not proved the title to the
suit property and that too when the plaintiffs have
not sought for restoration of possession of the suit
property based on title; or in such a suit it was for
the Plaintiffs to have established their title to the
suit property to be entitled to the relief of
dispossession of the defendants from the suit
property?
2. Whether in a suit brought for preventive and
mandatory injunction and for declaration that the
defendants have no right, title or interest to the suit
property, was it incumbent on the court to hold
inquiry into right, title status and interest of the
Plaintiffs to the suit property so as to grant an
equitable relief of injunction as exercised by trial
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Court; or the finding of the 1st Appellate court
while reversing the decree of the Ld. Trial Court and
holding that there was no need to frame issue of
title/ ownership of the Plaintiffs at all in a suit for
injunction is legally sustainable?”
22. Mr. Usgaonkar, learned Counsel appearing on behalf of
Suresh/Surekha Kakodkar submitted that the First Appellate
Court, in Regular Civil Appeal No. 88/2008, wrongly dismissed
the said appeal merely because of the Judgment of the Additional
District Judge in Regular Civil Appeal No. 21/2004, without
discussing the merits of the impugned judgment of the Trial
Court or without discussing the evidence produced in the said
Regular Civil Suit No. 46/2008. He, therefore, urged that the
impugned judgment in Regular Civil Appeal No. 88/2008 should
be set aside and the matter should be remanded for fresh
decision on merits.
23. Insofar as the Regular Civil Appeal No. 21/2004, is
concerned, learned Counsel submitted that the First Appellate
Court wrongly held that Suresh/Surekha Kakodkar had not
denied the co-ownership of Karmalis and Prabhu Dessai over the
suit property. He invited my attention to the written statement
of Suresh/Surekha Kakodkar filed in the Regular Civil Suit
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No.211/2000 wherein the contents of paragraphs 1 and 2 of the
plaint have been denied for want of knowledge. He submitted
that the findings of the First Appellate Court that the issue no. 1,
as framed by the Trial Court regarding the co-ownership of
Karmalis and Prabhu Dessai, in respect of the suit property, did
not arise, is totally erroneous. He submitted that the said suit
filed by Karmalis and Prabhu Dessai was for declaration that
Suresh/Surekha Kakodkar did not have right, title or interest to
the suit property and for mandatory injunction and, therefore,
the suit was based on title which had to be established by
Karmalis anf Prabhu Dessai. He submitted that Karmalis and
Prabhu Dessai failed to establish their title to the suit property.
Learned Counsel contended that by virtue of the partition deed
dated 20/05/1968, Shri Gurudas Pundalica Naique Cormoli and
his wife had, inter alia, become owners of plot no. 6
admeasuring 540 square metres. He further submitted that
Naguesh Shirodkar, who is admittedly the uncle of Suresh
Kakodkar, is mundkar and, therefore, the defendants are also
mundkars, as they are residing in the said house and that by sale
deeds dated 08/09/2003 which are at Exhibit 90 Colly, the said
Naguesh Shirodkar has purchased the total area of 540 square
metres from the said Survey No. 143/1, from the heirs of said
Gurudas Karmali and his wife. Learned Counsel further
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submitted that Karmalis and Prabhu Dessai had not established
that the property described in the title documents produced by
them corresponded with the suit property bearing survey no.
143/1. He also submitted that the Bhatkars of Suresh/Surekha
Kakodkar were not made party to the suit. He, therefore, urged
that both the substantial questions of law, framed in Second
Appeal No. 3/2005 are bound to be answered in favour of
Suresh/Surekha Kakodkar and ultimately, the impugned
judgment passed by the First Appellate Court, in Regular Civil
Appeal No. 21/2004 is liable to be set aside.
24. Learned Counsel, appearing on behalf of Suresh
/Surekha Kakodkar, relied upon the following judgments :
(i) Anathula Sudhakar vs. P. Buchi Reddy
(Dead) by LRs & Others, [(2008) 4 SCC 594];
(ii) Nagar Palika, Jind vs. Jagat Singh, [(1995)
3 SCC 412];
(iii) Union of India & Others vs. Vasavi Co-op.
Housing Society Ltd. & Others, [(2014) 1
Supreme 1];
(iv) Bachhaj Nahar vs. Nilima Mandal and
Another, [(2008)17 SCC 491];
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(v) Gurunath Manohar Pavaskar & Others vs.
Nagesh Siddappa Navalgund & Others, [(2007)
13 SCC 565];
(vi) Sri Thimmaiah vs. Shabira & Others,
[(2008) 4 SCC 182];
(vii) Bhavnagar Municipality vs. Union of India
& Another, [(1989) 2 Scale 1218].
(viii) Dubaria vs. Har Prasad & Another, [(2009)
9 SCC 346];
(ix) Bondar Singh & Others vs. Nihal Singh &
Others, [(2003)4 SCC 161];
(x) Ishwar Dass Jain (dead) through LRs. vs.
Sohan Lal (dead) by LRs., [(2000)1 SCC 434];
(xi) Rattan Dev vs. Pasam Devi, [(2002)7 SCC
441];
(xii) Durga Das vs. The Collector & Others,
[(1996)5 SCC 618];
(xiii) Santosh Hazari vs. Purushottam Tiwari
(Dead) by LRs., [(2001)3 SCC 179];
25. I have perused the entire material on record, in both
the appeals. I have also considered the submissions advanced by
the learned Counsel for Suresh/Surekha Kakodkar and the
judgments relied upon by him.
26. In paragraph 1 of the plaint, in Regular Civil Suit No.
211/2000, Karmalis and Prabhu Dessai had specifically averred
that they are the co-owners in joint possession of the suit
property bearing Survey No. 143/1 of village Kakora and had
further described the suit property in detail in the said
paragraph, by mentioning the names, the land registration nos.
16729 and 975 and matriz nos. 667 and 166. Even the
boundaries were mentioned. All the said documents have been
produced on record during the course of evidence. In paragraph
2 of the plaint, Karmalis and Prabhu Dessai stated that the
names of the co-owners are shown in the occupant's column of
Form No. III of Survey No. 143/1. Suresh/Surekha Prabhu
Dessai, in their written statement, did not specifically deny that
Karmalis and Prabhu Dessai were the co-owners and that their
names were recorded in Form No. III of the Survey Records, in
respect of the suit property. No doubt, the Form No III is only a
draft but the entries therein were not alleged to be erroneous.
No objections were filed against the said entries. As already
stated above, Suresh/Surekha Kakodkar, in Regular Civil Suit
No. 46/96 had alleged that Shri Vasudev Gopinath Naik Karmali
was their Bhatkar. The name of this Vasudev Gopinath Naik
Karmali is figuring in the said Form No. III of survey no. 143/1
along with the names of Vinayak Gopinath Naik Karmali, Anil
Hari Prabhu Dessai, Sanjay Hari Prabhu Dessai, Purshottam
Vithal Prabhu Dessai and Prakash Shankar Prabhu Dessai. Said
Vasudev Gopinath Naik Karmali, who was alleged to be the
Bhatkar of Suresh/Surekha Kakodkar never disputed the coownership
of Karmalis and Prabhu Dessai. Suresh/Surekha
Kakodkar merely denied paragraphs 1 and 2 of the plaint in
Regular Civil Suit No. 211/2000 for want of knowledge. Rule 3
of Order VIII of the Code Civil Procedure provides that it shall
not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant
must deal specifically with each allegation of fact of which he
does not admit the truth, except damages. Rule 4 of Order VIII
provides that where a defendant denies allegation of fact in the
plaint, he must not do so evasively, but answer the point of
substance. The rule further says that if it is alleged that the
defendant received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he
must deny that he received that sum or any part thereof or else
set out how much he received and if an allegation is made with
diverse circumstances, it shall not be sufficient to deny it along
with those circumstances. Then, rule 5(1) of Order VIII provides
that every allegation of fact in the plaint, if not denied
specifically or by necessary implication or stated to be not
admitted in the pleading of the defendant, shall be taken to be
admitted except as against the person under disability, provided
that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission. In view of the
above provisions of C.P.C., the finding of the learned First
Appellate Court, in Regular Civil Appeal No. 21/2004 that
Suresh/Surekha Kakodkar had not challenged the co-ownership
of Karmalis and Prabhu Dessai in respect of the suit property
bearing Survey No. 143/1 of village Kakora, cannot be said to be
erroneous. Besides the above, the names of Karmalis and
Prabhu Dessai were figuring in Form No. III of survey No. 143/1.
Therefore, it is a fact that the issue no. 1 as to whether the
plaintiffs prove that they are co-owners of the property bearing
Survey No. 143/1, as framed by the Trial Court, in Regular Civil
Suit No. 211/2000, did not arise as it had to be deemed to be an
admitted fact that the plaintiffs are co-owners of the suit
property. Be that as it may, Karmalis and Prabhu Dessai had
produced sufficient oral evidence on record to prove their coownership,
in respect of survey no. 143/1.
27. In the plaint/written statement filed by
Suresh/Surekha Kakodkar, respectively in both the suits, there
is merely an averment to the effect that Suresh/Surekha
Kakodkar had agreed to purchase the land adjacent to the
mundkarial house, which is in their occupation and having total
area of 540 square metres. In fact, in the pleadings, in both the
suit, there is variance. In the plaint, in Regular Civil Suit No.
46/96, Suresh/Surekha Kakodkar pleaded that their Bhatkar,
Shri Vasudev Gopinath Naik Karmali had agreed to sell the said
plot to them, whereas in the written statement filed in Regular
Civil Suit No. 211/2000, they pleaded that their Bhatkar, Shri
Gurudas karmali had agreed to sell to them the said land.
Nowhere in the pleadings in both the suits, it was pleaded that
Suresh/Surekha Kaokdkar had purchased the said total area of
540 square metres and consequently, had become owners
thereof. Admittedly, Suresh/Surekha Kakodkar did not produce
on record any agreement for purchase of the land admeasuring
540 square metres, wherein the said mundkarial house is
situated. It is true that Suresh/Surekha Kakodkar produced on
record a document known as “INSTRUMENTO DE DIVISAO E
ADJUDICACAO” which reveals that Gurudas Pundlik Naik
Karmali and his wife were allotted, inter alia, plot no. 6
admeasuring 540 square metres. Said document, being of the
year 1968, obviously does not mention survey number of the said
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plot. PW1, in Regular Civil Suit No. 211/2000, denied the
suggestion that the said partition deed was in respect of survey
no. 143/1. It is not proved that the said partition deed pertains
to survey no. 143/1. There is one more survey no. 144/1 which
also allegedly pertains to land registration no. 16729. Since
survey number was not mentioned in the said partition deed,
subsequently, a rectification deed was executed to show the
survey number of the property which was partitioned. From the
said deeds, it is clear that what has been partitioned is not the
property bearing survey no. 143/1 but survey no. 144/1. There is
ample evidence on record to prove that survey no. 143/1 is not
partitioned amongst the co-owners. Since Suresh/Surekha
Kakodkar failed to produce the agreement for sale executed by
said Gurudas and his wife in their favour, it has to be held that
Suresh/Surekha Kakodkar failed to prove that they had agreed to
purchase the said land admeasuring 540 square metres from
survey no. 143/1. Though learned Counsel for Suresh/Surekha
Kakodkar contended that his clients have purchased the land
admeasuring 540 square metres from survey no. 143/1, however,
such sale deeds were not produced by Suresh/Surekha Kakodkar
in Regular Civil Suit No. 46/1996. Thus, in the said Regular Civil
Suit No. 46/1996, Suresh/Surekha Kakodkar had certainly failed
to prove their ownership and possession over an area of 540
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square metres of land from survey no. 143/1. In Regular Civil
Suit No. 211/2000, Suresh/Surekha had produced two sale deeds
dated 08/09/2003 which refer to sale of plots admeasuring 300
square metres and 240 square metres from survey no. 143/1 to
Suresh/Surekha Kakodkar. The said sale deeds are at Exhibit
90-colly. However, these sale deeds were executed during the
pendency of the suits and were simply tendered in evidence.
There were no pleadings in the plaint/written statement filed by
Suresh/Surekha Kakodkar in both the suits, respectively
regarding the said sale deeds. There is no pleading at all that
Suresh/Surekha had purchased the said land admeasuring 540
square metres. Hence, the said sale deeds cannot be looked into.
In Regular Civil suit No. 211/2000, Suresh/Surekha had pleaded
that they are owners by adverse possession. As rightly held by
the learned First Appellate Court, in Regular Civil Appeal No.
21/2004, Suresh/Surekha Kakodkar did not produce any
evidence to prove their claim of adverse possession with regard
to the said land admeasuring 540 square metres. Even
otherwise, the plea of adverse possession is destructive of the
plea of mundkarship and vice versa. It should be kept in mind
that the Trial Court, in Regular Civil Suit No. 211/2000, by
judgment and decree dated 29/01/2004, held that
Suresh/Surekha Kakodkar could not prove that they are owners
of the suit property by adverse possession. The Trial Court
further held that Suresh/Surekha Kakodkar could not prove that
Gurudas Karmali had agreed to sell to them an area of 540
square metres, wherein their mundkarial house was situated.
The learned First Appellate Court, in Regular Civil Appeal
No.21/2004, has confirmed the said findings of the Trial Court.
There are, therefore, concurrent findings of facts. At Exhibit 59-
colly, in Regular Civil suit No.211/2000, there is sketch drawn by
Municipal Council, showing the pathway leading to Ghadiwada
road, which is used by public. The sketch shows the
encroachment made by Suresh kakodkar on the said pathway.
At Exhibit 60-colly, is the notice issued by the chief officer of
Municipal Council directing Suresh Kakodkar to clear the
pathway leading to the house of Pandurang Kakodkar. The
existence of the said pathway and encroachment on the same
done by Suresh Kakodkar was duly proved. There is no dispute
that Suresh/Surekha Kakodkar have their house in the suit
property bearing Survey No. 143/1. By order dated 03/06/1986,
in Case No. MUND/344/78, only Shri Naguesh Bhikaji Shirodkar
was declared as mundkar of Gurudas Karmali in respect of the
dwelling house admeasuring only 117 square metres, situated in
survey no. 143/1. Form No. XI also shows that the area of the
house of Naguesh Shirodkar is 117 square metres.
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Suresh/Surekha Kakodkar were not declared as mundkars.
Admittedly, purchase application filed by said Naguesh
Shirodkar, Smt Girija Naguesh Shirodkar, Suresh Kakodkar and
Smt Surekha Kakodkar, under Case No. MUND/PUR/4/2002, was
dismissed by the Mamlatdar. Considering the said fact, the
learned First Appellate Court, in Regular Civil Appeal No.
21/2004, has not given any relief to Karmalis and Prabhu Dessai,
with regard to the house bearing Municipal Council No. 658 and
in fact, has allowed Suresh/Surekha Kakodkar to use the said
residential house and also the suit property for coming and going
to the said residential house. Suresh/Surekha Kakodkar have
been rightly directed to remove rubble stone piled fencing and to
remove any plantation done by them in the suit property, as they
could not establish their ownership right to the land
admeasuring 540 square metres from the suit property.
28. Merely because in paragraph 17 of the written
statement filed by Municipal Council, in Regular Civil Suit No.
46/1996, it was averred that the said pathway was outside the
property of Suresh/Surekha Kakodkar, it does not mean that
Suresh/Surekha were admitted to be owners in possession of 540
square metres of land from survey no. 143/1. In paragraph 10 of
the written statement, the Municipal Council had pleaded that
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the said pathway was outside the house of Suresh/Surekha
Kakodkar. As already stated earlier, Naguesh Bhikaji Shirodkar
was declared as mundkar in respect of the dwelling house only
admeasuring 117 square metres. Suresh/Surekha kakodkar
could not prove that the fencing was erected by them was within
the alleged mundkarial area.
29. (a)- In the case of “Anathula Sudhakar” (supra), the
Apex Court has referred to the principles as to when a mere suit
for permanent injunction will lie and when it is necessary to file
a suit for declaration and/or possession with injunction, as
consequential relief. It has, however, been clarified that a prayer
for declaration will be necessary only if the denial of title by the
defendant or challenge to plaintiff's title raises cloud on the title
of plaintiff to the property. It is observed that a cloud is said to
raise over a person's title, when some apparent defect in his title
to a property, or when some prima facie right of a third party
over it, is made out or shown. Since, there was no specific denial
of co-ownership of Karmalis and Prabhu Dessai with respect to
survey no. 143/1, the question of they filing suit for declaration
of their title to the said property did not arise.
(b)- In the case of “Nagar Palika, Jind” (supra), it has been
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held that where title and possession of respondent had always
been disputed by the appellant from the stage of written
statement, the suit could not have been decreed merely on the
basis of entries in the revenue records. In the case of “Union of
India & others” (supra), it has been held that the burden to
prove title lies on the party making the claim and relief cannot
be ground of weakness of defendant's case. It has also been held
that the entries in revenue records do not confer title. In the
present cases, it is not only the entries in the revenue records
which have been considered, but the evasive denials of
Suresh/Surekha Kakodkar, in respect of co-ownership of
Karmalis and Prabhu Dessai, and the documents of title in
respect of the property and supporting oral evidence that has
been considered.
(c)- In the case of “Bachhaj Nahar” (supra), it has been
held that it is a fundamental rule that in a civil suit, relief to be
granted can be only with reference to the prayers made in the
pleadings. It is further held that only in exceptional cases can
this general rule be deviated from, if the Court is fully satisfied
that the pleadings and issues generally cover the case
subsequently put forward and that the parties, being conscious
of the issue, had led the evidence on such issue. In the case
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supra, the object and purpose of pleadings and issues has been
stated. It has been held that the object and purpose of pleading
of issues is to ensure that the litigants come to trial with all
issues clearly defined and to prevent the cases being expanded
or grounds being shifted during trial. The object of issues is to
identify from the pleadings, the question or points required to be
decided by the Courts so as to enable the parties to let in
evidence thereon. When the facts necessary to make out a
particular claim, or to seek a particular relief, are not found in
the plaint, the defendant does not get an opportunity to place the
facts and contentions necessary to repudiate or challenge such a
claim or relief.
(d)- In the case of “Gurunath Manohar Pavaskar and
others” (supra), it has been held that if a person disputes
possession of another person over some property, burden of
proving shall lie on him.
(e)- In the case of “Sri Thimmaiah” (supra), it has been
held that in a suit for permanent injunction, the plaintiff has to
establish that he is in possession in order to be entitled to a
decree for permanent injunction. It has been held that the
general proposition is well settled that the plaintiff, not in
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possession, is not entitled to the relief without claiming recovery
of possession and that before an injunction can be granted, it has
to be shown that the plaintiff was in possession.
(f)- In the case of “Bhavnagar Municipality” (supra), it
has been held that in a suit for possession based on title to the
suit property, where the defendants have denied the title of the
plaintiff, it is necessary for the Court to give finding of title of
the plaintiff, even if the defendants in possession had not
pleaded adverse possession. As already discussed above, in the
present matters, Suresh/Surekha Kakodkar had not specifically
denied the title of Karmalis and Prabhu Dessai. Hence the above
judgment cannot be of any assistance to Suresh/Surekha
Kakodkar.
(g)- In the case of “Dubaria” (supra), the Apex Court has
held that the High Court was not justified in holding that second
appeal was concluded by findings of fact without considering
material and documentary evidence already on record and it was
the duty of the High Court to consider record in respect of suit
property. It has been held that in case of infirmity of excluding,
ignoring and overlooking the abundant materials and evidence,
which if considered in proper perspective would have led to a
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conclusion contrary to one taken by High Court and first
appellate Court, it would be open to Apex Court to interfere with
concurrent findings of fact arrived at by High Court and first
appellate Court.
(h)- In the case of “Rattan Dev” (supra), it has observed
that the First Appellate Court was bound to apply its mind to all
the evidence available on record and then test the legality of the
findings arrived at by the Trial Court. It has been held that nonapplication
of mind by the Appellate Court to other material,
though available, and consequent failure of the Appellate Court
to discharge its judicial obligation, did arise a question of law
having a substantial impact on the rights of the parties, and
therefore, the second appeal deserved to be heard on merits. No
doubt, it is true that the First Appellate Court, in Regular Civil
Appeal No. 88/2008 dismissed the said appeal merely because of
the Judgment of the Additional District Judge in Regular Civil
Appeal No. 21/2004, without discussing the merits of the
impugned judgment of the Trial Court or without discussing the
evidence produced in the said Regular Civil Suit No. 46/2008.
However, since now it is found that the judgment of the First
Appellate Court, in Regular Civil Appeal No. 21/2004, is
sustainable, the question of remanding the Regular Civil Appeal
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No. 88/2008, for fresh decision after consideration of all the
material on record, will not serve any purpose.
30. None of the judgments discussed above and the
others cited by the learned Counsel for Suresh/Surekha
Kakodkar, though not discussed by me, render any assistance to
them. The substantial questions of law as framed in both the
appeals, therefore, get answered against Suresh/Surekha
Kakodkar. In view of the above, the impugned judgments and
orders passed by the learned First Appellate Court, in Regular
Civil Appeal No. 21/2004 and in Regular Civil Appeal No.
88/2008, are in accordance with the settled principles of law.
No interference with the same is warranted.
31. In the result, both the aforesaid appeals are
dismissed. However, in the facts and circumstances of the case
no order as to costs.
U. V. BAKRE, J.
SMA
Print Page
Kakodkar merely denied paragraphs 1 and 2 of the plaint in
Regular Civil Suit No. 211/2000 for want of knowledge. Rule 3
of Order VIII of the Code Civil Procedure provides that it shall
not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant
must deal specifically with each allegation of fact of which he
does not admit the truth, except damages. Rule 4 of Order VIII
provides that where a defendant denies allegation of fact in the
plaint, he must not do so evasively, but answer the point of
substance. The rule further says that if it is alleged that the
defendant received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he
must deny that he received that sum or any part thereof or else
set out how much he received and if an allegation is made with
diverse circumstances, it shall not be sufficient to deny it along
with those circumstances. Then, rule 5(1) of Order VIII provides
that every allegation of fact in the plaint, if not denied
specifically or by necessary implication or stated to be not
admitted in the pleading of the defendant, shall be taken to be
admitted except as against the person under disability, provided
that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission. In view of the
above provisions of C.P.C., the finding of the learned First
Appellate Court, in Regular Civil Appeal No. 21/2004 that
Suresh/Surekha Kakodkar had not challenged the co-ownership
of Karmalis and Prabhu Dessai in respect of the suit property
bearing Survey No. 143/1 of village Kakora, cannot be said to be
erroneous. Besides the above, the names of Karmalis and
Prabhu Dessai were figuring in Form No. III of survey No. 143/1.
Therefore, it is a fact that the issue no. 1 as to whether the
plaintiffs prove that they are co-owners of the property bearing
Survey No. 143/1, as framed by the Trial Court, in Regular Civil
Suit No. 211/2000, did not arise as it had to be deemed to be an
admitted fact that the plaintiffs are co-owners of the suit
property. Be that as it may, Karmalis and Prabhu Dessai had
produced sufficient oral evidence on record to prove their coownership,
in respect of survey no. 143/1.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEALS NO. 3 of 2005 and 9 of 2009
SECOND APPEAL NO. 3 of 2005
Shri Suresh Kakodkar,
Versus
Shri Vinayak Gopinath Naik
Karmali
CORAM :- U. V. BAKRE, J.
Pronounced on : 4 th July, 2014 .
Citation; 2015(3) ALLMR614
The above two appeals can be conveniently disposed of
by common judgment as they pertain to the same subjectmatter.
2. Heard Mr. Usgaonkar, learned Counsel appearing on
behalf of the appellants. None present for the respondents,
though they have been duly served after admission, in both the
appeals.
3. The Second Appeal No. 3/05 is directed against the
judgment and decree dated 17/09/2004 passed by the learned
Ad hoc Additional District Judge, FTC-II in Regular Civil Appeal
No. 21/2004. The said Regular Civil Appeal No. 21 of 2004 was
filed against the judgment and decree dated 29/01/2004 passed
by the learned Civil Judge, Senior Division at Quepem (Trial
Court, for short) in Regular Civil Suit No. 211/2000. The
respondents were plaintiffs and the appellants were defendants
in the said Civil Suit.
4. The Second Appeal No. 9/09 is directed against the
judgment and decree dated 16/10/2008 passed by the learned
District Judge- 4, South Goa, Margao (First Appellate Court, for
short) in Regular Civil Appeal No. 88/2008. The said Regular
Civil Appeal No. 88/2008 was filed against the judgment and
decree dated 29/04/2008 passed by the learned Civil Judge,
Junior Division, Quepem (Trial Court, for short) in Regular Civil
Suit No. 46/96/B. The appellants were plaintiffs and the
respondent was defendant in the said suit.
5. For the sake of convenience, the plaintiffs of Regular
Civil Suit No. 211/2000 shall, hereinafter, be referred as
“Karmalis and Prabhu Dessai”; the defendants of Regular Civil
Suit No. 211/2000 who are the plaintiffs of Regular Civil Suit No.
46/1996 shall hereinafter be referred to as “Suresh/Surekha
Kakodkar; and the defendant of Regular Civil Suit No. 46/1996
shall hereinafter be referred to as the “Municipal Council”.
6. Karmalis and Prabhu Dessai had filed the said
Regular Civil Suit No. 211/2000 for declaration that
Suresh/Surekha Kakodkar have no right, title or interest to the
suit property and, therefore, the plaintiffs are entitled to
demolish the illegal structure made by Suresh/Surekha Kakodkar
in the suit property bearing Survey No. 143/1 of village Kakora
of Quepem Taluka; for mandatory injunction directing
Suresh/Surekha Kakodkar to demolish the illegal structure being
House No. 658 made in the suit property; for permanent
injunction to restrain Suresh/Surekha Kakodkar, their servants,
agents and relatives from interfering with, planting in,
occupying, trespassing and obstructing the pathway in the suit
property and/or doing any act of interference in the suit property
and for mandatory injunction directing Suresh/Surekha
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Kakodkar to remove the rubble stones piled fencing, coconut
saplings or any plantation made in the suit property.
7. Suresh/Surekha Kakodkar had filed the said Regular
Civil Suit No. 46/1996 for permanent injunction to restrain the
Municipal Council from demolishing the fencing and from acting
under the notice bearing pathway/reg/96-11.52 dated
18/07/1996.
8. Case of Karmalis and Prabhu Dessai, in Regular Civil
suit No. 211/2000, in short, was as follows :
They along with some others are co-owners in joint
possession of a property known as “Noigalivorli Mordi” alias
“Noigal” also known as “Madheagalivorli Mordi” bearing Land
Registration Nos. 16729 and 975 and Matriz Nos. 667 and 166
and presently surveyed under No. 143/1 of village Kakora which
is the suit property. There is a house which is numbered as “G”
in the survey records, belonging to Shri Naguesh Bhikaji
Shirodkar, who is a mundkar. Suresh Kakodkar is the son of
Shri Baban Bhikaji Shirodkar, who is the brother of said
Naguesh Bhikaji Shirodkar and Surekha Kakodkar is the wife of
said Suresh. Suresh/Surekha Kakodkar have illegally
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constructed a gada which was extended from time to time and
they started residing therein, which gada was in front of the said
house No. “G”. There is a traditional pathway which spurts from
the public road on the eastern side and goes to the west and
leading to the paddy field in Survey No. 142 and other ward.
The said pathway passes in between houses no. G, H, L and I, J,
K, M and which exists from time immemorial and is used by the
villagers and other persons. Suresh/Surekha Kakodkar, who
have no right, title or interest, all of a sudden, on 08/07/1996,
piled and dumped laterite stones and blocked the said traditional
pathway passing between the houses No. G and I, due to which,
the residents of the ward filed complaint dated 08/07/1996 to the
Chief Officer of Municipal Council for removal of laterite stones
and clearances of the traditional pathway. The Municipal Officer
inspected the site and drew sketch of the traditional pathway.
On 09/07/1996, the Chief Officer of Municipal Council issued a
notice to Suresh Kakodkar to clear the pathway within 24 hours,
but Suresh/Surekha Kakodkar did not comply with the same and
filed reply dated 10/07/1996 thereby denying the blocking of any
pathway. Suresh Kakodkar, through his Advocate, issued notice
to the Chief Officer alleging that he is mundkar of Shri Vasudev
Gopinath Karmali in the property bearing Survey No. 143/1 and
admeasuring 540 square metres and that the stones were piled
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within the mundkarial dwelling house. Suresh/Surekha
Kakodkar filed Regular Civil Suit No. 46/96/B against the
Municipal Council and obtained injunction which was,
thereafter, confirmed. Suresh/Surekha Kakodkar have no right,
title or interest to the suit property. Hence, the suit.
9. The case of Suresh/Surekha Kakodkar in both the
suits was as under :
They have their mundkarial house in the property
and that they had agreed to purchase the said mundkarial house
along with the land adjacent thereto which is in their occupation
and having a total area of 540 square metres. The said dwelling
house bears Kakora-Municipal Council House No. 658 and the
said house was constructed about 60 years back by the father of
Suresh Kakodkar and father-in-law of Smt. Surekha Kakodkar.
By virtue of an agreement of sale, they have agreed to purchase
the said land from the Bhatkar. They are otherwise owners by
adverse possession. On the northern side of the house, a
pathway/access has been constructed by the Municipal Council,
which has width of 2.60 metres and which leads to the houses of
Pandurang Kakodkar and others and on the southern side of the
house also, there is an access of width of 3 metres for the
residents of other houses. The house as well as the fence around
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their house are in existence for last 60 years and there was
never a pathway through their property. The Municipal Council
is trying to demolish the fencing only to accommodate Mr.
Pandurang Kakodkar, who otherwise has a 6 metres wide road
towards south of his house.
10. The Municipal Council, in Regular Civil Suit No.
46/1996, in its written statement, alleged that the suit was not
maintainable as there was no cause of action against the
defendant. The Municipal Council stated that Suresh/Surekha
Kakodkar had no right to the suit pathway and had also not
produced any documents to establish any right over the said
pathway which is about 40 years old and is being used by the
public of Madegal Ward without any interference of any person
and some time in the month of July 1996, Suresh/Surekha
Kakodkar tried to block the said pathway by piling laterite stones
without any authority. The Council stated that the said pathway
was outside the house of Suresh/Surekha Kakodkar. It was
alleged that the said blockage was removed by one of the coowners
of the said property bearing Survey No. 143/1, namely
Advocate Sanjay Hari Prabhudessai and some other villagers of
the locality on 27/07/1996 in presence of P.I. Tony Fernandes of
Curchorem Police Station and Joint Mamlatdar of Quepem and,
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therefore, the said pathway is now open for public and there is
no obstruction to the same. The Municipal Council also stated
that the suit was bad for non-joinder of necessary parties i.e. the
owners of the suit property. It was alleged that the said
property bearing Survey No. 143/1 is owned by the five owners.
The case of Suresh/Surekha Kakodkar was denied.
11. Following issues were framed by the learned trial
Court, in Regular Civil Suit No. 211/2000 :
“1. Whether the plaintiffs prove that they are coowners
of the suit property ?
2. Whether the plaintiffs prove that the
defendants interfered with the suit property
including the pathway ?
3. Whether the defendants prove that they are
owners by adverse possession of the suit property ?”
ADDITIONAL ISSUE
1. Whether the defendants prove that they are
mundcars of the landlord Shri Gurudas Karmali and
said Gurudas has agreed to sell to them an area of
540 square metres wherein their mundcarial house
is situated ?
12. In the said Regular Civil Suit No. 211/2000, the
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plaintiffs (Karmalis and Prabhu Dessai) examined three
witnesses in support of their case and produced various
documents, whereas the defendants (Suresh/Surekha Kakodkar)
examined one witness and they also produced various
documents.
13. Upon consideration of the entire evidence on record,
the learned Trial Court, in the said Regular Civil Suit No.
211/2000, vide judgment and order dated 29/01/2004, held that
both the parties could not prove their cases. All the issues,
therefore, came to be answered in the negative and
consequently, the said suit came to be dismissed.
14. Karmalis and Prabhu Dessai filed Regular Civil
Appeal No. 21/2004, against the judgment and decree dated
29/01/2004. The learned First Appellate Court formulated the
following points for determination :
“1. Whether the plaintiffs have proved that they are
entitled for permanent and mandatory injunction
against the respondents/ defendants ?
2. Has the learned Civil Judge erred in
dismissing the suit ?”
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15. The learned First Appellate Court, by judgment and
order dated 17/09/2004, partly allowed the Regular Civil Appeal
No. 21/2004 and quashed and set aside the judgment dated
29/01/2004. The First appellate Court found that in their
pleadings, Suresh/Surekha Kakodkar had not challenged the coownership
of Karmalis and Prabhu Dessai over the property
bearing Survey No. 143/1 of village Kakora. It was found that
Suresh/Surekha Kakodkar had not specifically averred that
Karmalis and Prabhu Dessai did not have right over the said
property bearing Survey No. 143/1. It was also found that
Suresh/Surekha Kakodkar had not pleaded that the said property
bearing Survey No. 143/1 was not common and undivided
property. In the face of the absence of specific denial by
Suresh/Surekha Kakodkar in their written statement in said Civil
Suit No. 211/2000, the First Appellate Court held that the issue,
whether the plaintiffs prove that they are co-owners of the
property bearing Survey No. 143/1, did not arise. The First
Appellate Court found that at one hand, the Suresh/Surekha
Kakodkar claimed to be residing in the said property as
mundkars and at the other hand, they were claiming to be
holding the land and the house by adverse possession. Both the
said pleas of Suresh/Surekha Kakodkar were held to be
destructive of each other. The First Appellate Court observed
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that it was clear that Suresh/Surekha Kakodkar did not know as
to in what capacity they were holding the land and the house
Survey No. 143/1. The First Appellate Court found that the
names of Karmalis and Prabhu Dessai were figuring in survey
records, whereas the names of Suresh/Surekha Kakodkar were
not at all figuring therein. It was also found that
Suresh/Surekha Kakodkar had not produced any documents to
prove that they are mundkars of the house situated in Survey
No. 143/1. The First Appellate Court observed that
Suresh/Surekha Kakodkar did not claim any right to the house
No. “G” shown in the survey plan, but they claimed to be
mundkars of the house bearing Municipal No. 658. It was found
that no declaration nor any registration certificate as mundkar
was produced and also no evidence of adverse possession was
produced. The partition deed was found to be not pertaining to
survey no. 143/1. It was, therefore, held that Suresh/Surekha
Kakodkar failed to prove that they had any right in the property
bearing Survey No. 143/1. The First Appellate Court held that
Karmalis and Prabhu Dessai proved their right to the suit
property bearing Survey No. 143/1 and that Suresh/Surekha
Kakodkar had no right to the same. The First Appellate Court
further held that the learned trial Court rightly refused the
prayer of mandatory injunction in respect of the gada since
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Karmalis and Prabhu Dessai admitted in cross-examination and
also in the plaint that Suresh/Surekha Kakodkar constructed the
gada about 10 years back and have been extending the same
from time to time. The First Appellate Court held that the prayer
of mandatory injunction in respect of the house No. 658 did not
lie because of delay and laches and also due to acquiescence.
The First Appellate Court held that Karmalis and Prabhu Dessai
had made out a case for permanent injunction and for removal of
the fence and plantation. Therefore, the judgment and decree
dated 29/01/2004 of the Trial Court was quashed and set aside.
Suresh/Surekha Kakodkar, their agents and relatives, etc. have
been permanently restrained from doing any construction or
interfering with or planting in the property bearing Survey No.
143/1 except using dwelling house bearing Municipal Council
No. 658 and using the property for coming and going to the said
residential house. Suresh/Surekha Kakodkar have been directed
to remove the rubble stones piled fencing and to remove any
plantation in the said property bearing Survey no. 143/1.
16. Following issues were framed by the learned Trial
Court, in Regular Civil Suit No. 46/1996 :
“1. Whether the plaintiff proves that they are in
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possession and enjoyment of an area of 540 sq. mtrs
in survey no. 143/1 over an agreement with his
Bhatkar ?
2. Whether the plaintiff proves that there is a
laterite stone fencing around her house since
several years ?
3. Whether the plaintiff proves that action of
defendant to clear alleged pathway through her suit
plot in collusion with Pandurang Kakodkar is
illegal ?
4. Whether the defendant proves that the suit is
bad for non-joinder of other co-owners ?
5. whether the defendant proves that a pathway
has been existing through plaintiffs plot since last
40 years and used by the people of locality over
some time ?
6. Whether the defendant proves that fencing
was demolished by Adv. Sanjay Prabhudessai and as
such suit is infructuous ?
7. What Order? What Relief ?”
17. In said Regular Civil Suit No. 46/1996, Suresh/Surekha
Kakodkar examined Smt Surekha Kakodkar as PW1, Smt.
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Alexinha Misquita as PW2 and Umesh Savalaram Ajgaonkar as
PW3. The Municipal Council did not examine any witness.
18. Upon consideration of the entire material on record,
the learned Trial Court, in the said Regular Civil Suit No.
46/1996, vide judgment dated 29/04/2008, held that
Suresh/Surekha Kakodkar proved that they are in possession and
enjoyment of an area of 540 square metres from Survey No.
143/1 by virtue of an agreement with the Bhatkar. The Trial
Court further held that Suresh/Surekha Kakodkar had proved
that there was laterite stone fencing around their house for the
last several years. The Trial Court, however, held that the said
pathway has been existing through the plot of Suresh/Surekha
Kakodkar since last 40 years and used by the people of locality
over quite some time. Issues no. 1, 2 and 5 were answered in
the affirmative, whereas issues no. 3, 4 and 6 were answered in
the negative. Consequently, the suit was dismissed.
19. Aggrieved by the judgment and decree of the Trial
Court in Regular Civil Suit No. 46/1996, Suresh/Surekha
Kakodkar filed Regular Civil Appeal No. 88/2008 before the
learned District Court, South Goa. The learned First Appellate
Court formulated the following point for determination:
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“Whether the plaintiffs have any right to property
known as Madegal, also known as Madegalvaril
Mordi, Cacora bearing survey no.143/1 of
Quepem ?”
20. The First Appellate Court, vide judgment and order
dated 16/10/2008 dismissed the said Regular Civil Appeal No.
88/2008. The First Appellate Court found that in the Regular
Civil Suit No. 46/1996, at exhibit 39, there was a judgment
passed by the Additional District Judge, Fast Track Court, South
Goa, Margao in Regular Civil Appeal No. 21/2004 dated
17/09/2004, wherein it was held that Suresh/Surekha Kakodkar
had failed to prove that they have any right in the property
bearing Survey No. 143/1. The First Appellate Court observed
that the Trial Court ought to have taken into consideration the
said findings of the Additional District Judge to the effect that
Suresh/Surekha Kakodkar had no right to the property bearing
Survey No. 143/1 except to their dwelling house No. 658. The
First Appellate Court also took into consideration that though
Suresh/Surekha Kakodkar claimed to be mundkars, however,
PW1 (Surekha Kakodkar) had stated that the purchase
application was dismissed. In view of the above, the appeal also
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came to be dismissed.
21. Aggrieved by the judgment and decree dated
16/10/2008 of the First Appellate Court, passed in Regular Civil
Appeal No. 21/2004, Suresh/Surekha Kakodkar have filed the
aforesaid Second Appeal No. 3/2005 which has been admitted
on the following substantial questions of law :
“1. Whether in a suit for injunction filed by the
plaintiffs claiming to be the co-owners of the suit
property can the defendants be injuncted from the
suit property without having reference or regard to
the title of the plaintiffs to the property, and holding
that the defendants have not proved the title to the
suit property and that too when the plaintiffs have
not sought for restoration of possession of the suit
property based on title; or in such a suit it was for
the Plaintiffs to have established their title to the
suit property to be entitled to the relief of
dispossession of the defendants from the suit
property?
2. Whether in a suit brought for preventive and
mandatory injunction and for declaration that the
defendants have no right, title or interest to the suit
property, was it incumbent on the court to hold
inquiry into right, title status and interest of the
Plaintiffs to the suit property so as to grant an
equitable relief of injunction as exercised by trial
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Court; or the finding of the 1st Appellate court
while reversing the decree of the Ld. Trial Court and
holding that there was no need to frame issue of
title/ ownership of the Plaintiffs at all in a suit for
injunction is legally sustainable?”
22. Mr. Usgaonkar, learned Counsel appearing on behalf of
Suresh/Surekha Kakodkar submitted that the First Appellate
Court, in Regular Civil Appeal No. 88/2008, wrongly dismissed
the said appeal merely because of the Judgment of the Additional
District Judge in Regular Civil Appeal No. 21/2004, without
discussing the merits of the impugned judgment of the Trial
Court or without discussing the evidence produced in the said
Regular Civil Suit No. 46/2008. He, therefore, urged that the
impugned judgment in Regular Civil Appeal No. 88/2008 should
be set aside and the matter should be remanded for fresh
decision on merits.
23. Insofar as the Regular Civil Appeal No. 21/2004, is
concerned, learned Counsel submitted that the First Appellate
Court wrongly held that Suresh/Surekha Kakodkar had not
denied the co-ownership of Karmalis and Prabhu Dessai over the
suit property. He invited my attention to the written statement
of Suresh/Surekha Kakodkar filed in the Regular Civil Suit
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No.211/2000 wherein the contents of paragraphs 1 and 2 of the
plaint have been denied for want of knowledge. He submitted
that the findings of the First Appellate Court that the issue no. 1,
as framed by the Trial Court regarding the co-ownership of
Karmalis and Prabhu Dessai, in respect of the suit property, did
not arise, is totally erroneous. He submitted that the said suit
filed by Karmalis and Prabhu Dessai was for declaration that
Suresh/Surekha Kakodkar did not have right, title or interest to
the suit property and for mandatory injunction and, therefore,
the suit was based on title which had to be established by
Karmalis anf Prabhu Dessai. He submitted that Karmalis and
Prabhu Dessai failed to establish their title to the suit property.
Learned Counsel contended that by virtue of the partition deed
dated 20/05/1968, Shri Gurudas Pundalica Naique Cormoli and
his wife had, inter alia, become owners of plot no. 6
admeasuring 540 square metres. He further submitted that
Naguesh Shirodkar, who is admittedly the uncle of Suresh
Kakodkar, is mundkar and, therefore, the defendants are also
mundkars, as they are residing in the said house and that by sale
deeds dated 08/09/2003 which are at Exhibit 90 Colly, the said
Naguesh Shirodkar has purchased the total area of 540 square
metres from the said Survey No. 143/1, from the heirs of said
Gurudas Karmali and his wife. Learned Counsel further
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submitted that Karmalis and Prabhu Dessai had not established
that the property described in the title documents produced by
them corresponded with the suit property bearing survey no.
143/1. He also submitted that the Bhatkars of Suresh/Surekha
Kakodkar were not made party to the suit. He, therefore, urged
that both the substantial questions of law, framed in Second
Appeal No. 3/2005 are bound to be answered in favour of
Suresh/Surekha Kakodkar and ultimately, the impugned
judgment passed by the First Appellate Court, in Regular Civil
Appeal No. 21/2004 is liable to be set aside.
24. Learned Counsel, appearing on behalf of Suresh
/Surekha Kakodkar, relied upon the following judgments :
(i) Anathula Sudhakar vs. P. Buchi Reddy
(Dead) by LRs & Others, [(2008) 4 SCC 594];
(ii) Nagar Palika, Jind vs. Jagat Singh, [(1995)
3 SCC 412];
(iii) Union of India & Others vs. Vasavi Co-op.
Housing Society Ltd. & Others, [(2014) 1
Supreme 1];
(iv) Bachhaj Nahar vs. Nilima Mandal and
Another, [(2008)17 SCC 491];
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(v) Gurunath Manohar Pavaskar & Others vs.
Nagesh Siddappa Navalgund & Others, [(2007)
13 SCC 565];
(vi) Sri Thimmaiah vs. Shabira & Others,
[(2008) 4 SCC 182];
(vii) Bhavnagar Municipality vs. Union of India
& Another, [(1989) 2 Scale 1218].
(viii) Dubaria vs. Har Prasad & Another, [(2009)
9 SCC 346];
(ix) Bondar Singh & Others vs. Nihal Singh &
Others, [(2003)4 SCC 161];
(x) Ishwar Dass Jain (dead) through LRs. vs.
Sohan Lal (dead) by LRs., [(2000)1 SCC 434];
(xi) Rattan Dev vs. Pasam Devi, [(2002)7 SCC
441];
(xii) Durga Das vs. The Collector & Others,
[(1996)5 SCC 618];
(xiii) Santosh Hazari vs. Purushottam Tiwari
(Dead) by LRs., [(2001)3 SCC 179];
25. I have perused the entire material on record, in both
the appeals. I have also considered the submissions advanced by
the learned Counsel for Suresh/Surekha Kakodkar and the
judgments relied upon by him.
26. In paragraph 1 of the plaint, in Regular Civil Suit No.
211/2000, Karmalis and Prabhu Dessai had specifically averred
that they are the co-owners in joint possession of the suit
property bearing Survey No. 143/1 of village Kakora and had
further described the suit property in detail in the said
paragraph, by mentioning the names, the land registration nos.
16729 and 975 and matriz nos. 667 and 166. Even the
boundaries were mentioned. All the said documents have been
produced on record during the course of evidence. In paragraph
2 of the plaint, Karmalis and Prabhu Dessai stated that the
names of the co-owners are shown in the occupant's column of
Form No. III of Survey No. 143/1. Suresh/Surekha Prabhu
Dessai, in their written statement, did not specifically deny that
Karmalis and Prabhu Dessai were the co-owners and that their
names were recorded in Form No. III of the Survey Records, in
respect of the suit property. No doubt, the Form No III is only a
draft but the entries therein were not alleged to be erroneous.
No objections were filed against the said entries. As already
stated above, Suresh/Surekha Kakodkar, in Regular Civil Suit
No. 46/96 had alleged that Shri Vasudev Gopinath Naik Karmali
was their Bhatkar. The name of this Vasudev Gopinath Naik
Karmali is figuring in the said Form No. III of survey no. 143/1
along with the names of Vinayak Gopinath Naik Karmali, Anil
Hari Prabhu Dessai, Sanjay Hari Prabhu Dessai, Purshottam
Vithal Prabhu Dessai and Prakash Shankar Prabhu Dessai. Said
Vasudev Gopinath Naik Karmali, who was alleged to be the
Bhatkar of Suresh/Surekha Kakodkar never disputed the coownership
of Karmalis and Prabhu Dessai. Suresh/Surekha
Kakodkar merely denied paragraphs 1 and 2 of the plaint in
Regular Civil Suit No. 211/2000 for want of knowledge. Rule 3
of Order VIII of the Code Civil Procedure provides that it shall
not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant
must deal specifically with each allegation of fact of which he
does not admit the truth, except damages. Rule 4 of Order VIII
provides that where a defendant denies allegation of fact in the
plaint, he must not do so evasively, but answer the point of
substance. The rule further says that if it is alleged that the
defendant received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he
must deny that he received that sum or any part thereof or else
set out how much he received and if an allegation is made with
diverse circumstances, it shall not be sufficient to deny it along
with those circumstances. Then, rule 5(1) of Order VIII provides
that every allegation of fact in the plaint, if not denied
specifically or by necessary implication or stated to be not
admitted in the pleading of the defendant, shall be taken to be
admitted except as against the person under disability, provided
that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission. In view of the
above provisions of C.P.C., the finding of the learned First
Appellate Court, in Regular Civil Appeal No. 21/2004 that
Suresh/Surekha Kakodkar had not challenged the co-ownership
of Karmalis and Prabhu Dessai in respect of the suit property
bearing Survey No. 143/1 of village Kakora, cannot be said to be
erroneous. Besides the above, the names of Karmalis and
Prabhu Dessai were figuring in Form No. III of survey No. 143/1.
Therefore, it is a fact that the issue no. 1 as to whether the
plaintiffs prove that they are co-owners of the property bearing
Survey No. 143/1, as framed by the Trial Court, in Regular Civil
Suit No. 211/2000, did not arise as it had to be deemed to be an
admitted fact that the plaintiffs are co-owners of the suit
property. Be that as it may, Karmalis and Prabhu Dessai had
produced sufficient oral evidence on record to prove their coownership,
in respect of survey no. 143/1.
27. In the plaint/written statement filed by
Suresh/Surekha Kakodkar, respectively in both the suits, there
is merely an averment to the effect that Suresh/Surekha
Kakodkar had agreed to purchase the land adjacent to the
mundkarial house, which is in their occupation and having total
area of 540 square metres. In fact, in the pleadings, in both the
suit, there is variance. In the plaint, in Regular Civil Suit No.
46/96, Suresh/Surekha Kakodkar pleaded that their Bhatkar,
Shri Vasudev Gopinath Naik Karmali had agreed to sell the said
plot to them, whereas in the written statement filed in Regular
Civil Suit No. 211/2000, they pleaded that their Bhatkar, Shri
Gurudas karmali had agreed to sell to them the said land.
Nowhere in the pleadings in both the suits, it was pleaded that
Suresh/Surekha Kaokdkar had purchased the said total area of
540 square metres and consequently, had become owners
thereof. Admittedly, Suresh/Surekha Kakodkar did not produce
on record any agreement for purchase of the land admeasuring
540 square metres, wherein the said mundkarial house is
situated. It is true that Suresh/Surekha Kakodkar produced on
record a document known as “INSTRUMENTO DE DIVISAO E
ADJUDICACAO” which reveals that Gurudas Pundlik Naik
Karmali and his wife were allotted, inter alia, plot no. 6
admeasuring 540 square metres. Said document, being of the
year 1968, obviously does not mention survey number of the said
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plot. PW1, in Regular Civil Suit No. 211/2000, denied the
suggestion that the said partition deed was in respect of survey
no. 143/1. It is not proved that the said partition deed pertains
to survey no. 143/1. There is one more survey no. 144/1 which
also allegedly pertains to land registration no. 16729. Since
survey number was not mentioned in the said partition deed,
subsequently, a rectification deed was executed to show the
survey number of the property which was partitioned. From the
said deeds, it is clear that what has been partitioned is not the
property bearing survey no. 143/1 but survey no. 144/1. There is
ample evidence on record to prove that survey no. 143/1 is not
partitioned amongst the co-owners. Since Suresh/Surekha
Kakodkar failed to produce the agreement for sale executed by
said Gurudas and his wife in their favour, it has to be held that
Suresh/Surekha Kakodkar failed to prove that they had agreed to
purchase the said land admeasuring 540 square metres from
survey no. 143/1. Though learned Counsel for Suresh/Surekha
Kakodkar contended that his clients have purchased the land
admeasuring 540 square metres from survey no. 143/1, however,
such sale deeds were not produced by Suresh/Surekha Kakodkar
in Regular Civil Suit No. 46/1996. Thus, in the said Regular Civil
Suit No. 46/1996, Suresh/Surekha Kakodkar had certainly failed
to prove their ownership and possession over an area of 540
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square metres of land from survey no. 143/1. In Regular Civil
Suit No. 211/2000, Suresh/Surekha had produced two sale deeds
dated 08/09/2003 which refer to sale of plots admeasuring 300
square metres and 240 square metres from survey no. 143/1 to
Suresh/Surekha Kakodkar. The said sale deeds are at Exhibit
90-colly. However, these sale deeds were executed during the
pendency of the suits and were simply tendered in evidence.
There were no pleadings in the plaint/written statement filed by
Suresh/Surekha Kakodkar in both the suits, respectively
regarding the said sale deeds. There is no pleading at all that
Suresh/Surekha had purchased the said land admeasuring 540
square metres. Hence, the said sale deeds cannot be looked into.
In Regular Civil suit No. 211/2000, Suresh/Surekha had pleaded
that they are owners by adverse possession. As rightly held by
the learned First Appellate Court, in Regular Civil Appeal No.
21/2004, Suresh/Surekha Kakodkar did not produce any
evidence to prove their claim of adverse possession with regard
to the said land admeasuring 540 square metres. Even
otherwise, the plea of adverse possession is destructive of the
plea of mundkarship and vice versa. It should be kept in mind
that the Trial Court, in Regular Civil Suit No. 211/2000, by
judgment and decree dated 29/01/2004, held that
Suresh/Surekha Kakodkar could not prove that they are owners
of the suit property by adverse possession. The Trial Court
further held that Suresh/Surekha Kakodkar could not prove that
Gurudas Karmali had agreed to sell to them an area of 540
square metres, wherein their mundkarial house was situated.
The learned First Appellate Court, in Regular Civil Appeal
No.21/2004, has confirmed the said findings of the Trial Court.
There are, therefore, concurrent findings of facts. At Exhibit 59-
colly, in Regular Civil suit No.211/2000, there is sketch drawn by
Municipal Council, showing the pathway leading to Ghadiwada
road, which is used by public. The sketch shows the
encroachment made by Suresh kakodkar on the said pathway.
At Exhibit 60-colly, is the notice issued by the chief officer of
Municipal Council directing Suresh Kakodkar to clear the
pathway leading to the house of Pandurang Kakodkar. The
existence of the said pathway and encroachment on the same
done by Suresh Kakodkar was duly proved. There is no dispute
that Suresh/Surekha Kakodkar have their house in the suit
property bearing Survey No. 143/1. By order dated 03/06/1986,
in Case No. MUND/344/78, only Shri Naguesh Bhikaji Shirodkar
was declared as mundkar of Gurudas Karmali in respect of the
dwelling house admeasuring only 117 square metres, situated in
survey no. 143/1. Form No. XI also shows that the area of the
house of Naguesh Shirodkar is 117 square metres.
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Suresh/Surekha Kakodkar were not declared as mundkars.
Admittedly, purchase application filed by said Naguesh
Shirodkar, Smt Girija Naguesh Shirodkar, Suresh Kakodkar and
Smt Surekha Kakodkar, under Case No. MUND/PUR/4/2002, was
dismissed by the Mamlatdar. Considering the said fact, the
learned First Appellate Court, in Regular Civil Appeal No.
21/2004, has not given any relief to Karmalis and Prabhu Dessai,
with regard to the house bearing Municipal Council No. 658 and
in fact, has allowed Suresh/Surekha Kakodkar to use the said
residential house and also the suit property for coming and going
to the said residential house. Suresh/Surekha Kakodkar have
been rightly directed to remove rubble stone piled fencing and to
remove any plantation done by them in the suit property, as they
could not establish their ownership right to the land
admeasuring 540 square metres from the suit property.
28. Merely because in paragraph 17 of the written
statement filed by Municipal Council, in Regular Civil Suit No.
46/1996, it was averred that the said pathway was outside the
property of Suresh/Surekha Kakodkar, it does not mean that
Suresh/Surekha were admitted to be owners in possession of 540
square metres of land from survey no. 143/1. In paragraph 10 of
the written statement, the Municipal Council had pleaded that
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the said pathway was outside the house of Suresh/Surekha
Kakodkar. As already stated earlier, Naguesh Bhikaji Shirodkar
was declared as mundkar in respect of the dwelling house only
admeasuring 117 square metres. Suresh/Surekha kakodkar
could not prove that the fencing was erected by them was within
the alleged mundkarial area.
29. (a)- In the case of “Anathula Sudhakar” (supra), the
Apex Court has referred to the principles as to when a mere suit
for permanent injunction will lie and when it is necessary to file
a suit for declaration and/or possession with injunction, as
consequential relief. It has, however, been clarified that a prayer
for declaration will be necessary only if the denial of title by the
defendant or challenge to plaintiff's title raises cloud on the title
of plaintiff to the property. It is observed that a cloud is said to
raise over a person's title, when some apparent defect in his title
to a property, or when some prima facie right of a third party
over it, is made out or shown. Since, there was no specific denial
of co-ownership of Karmalis and Prabhu Dessai with respect to
survey no. 143/1, the question of they filing suit for declaration
of their title to the said property did not arise.
(b)- In the case of “Nagar Palika, Jind” (supra), it has been
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held that where title and possession of respondent had always
been disputed by the appellant from the stage of written
statement, the suit could not have been decreed merely on the
basis of entries in the revenue records. In the case of “Union of
India & others” (supra), it has been held that the burden to
prove title lies on the party making the claim and relief cannot
be ground of weakness of defendant's case. It has also been held
that the entries in revenue records do not confer title. In the
present cases, it is not only the entries in the revenue records
which have been considered, but the evasive denials of
Suresh/Surekha Kakodkar, in respect of co-ownership of
Karmalis and Prabhu Dessai, and the documents of title in
respect of the property and supporting oral evidence that has
been considered.
(c)- In the case of “Bachhaj Nahar” (supra), it has been
held that it is a fundamental rule that in a civil suit, relief to be
granted can be only with reference to the prayers made in the
pleadings. It is further held that only in exceptional cases can
this general rule be deviated from, if the Court is fully satisfied
that the pleadings and issues generally cover the case
subsequently put forward and that the parties, being conscious
of the issue, had led the evidence on such issue. In the case
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supra, the object and purpose of pleadings and issues has been
stated. It has been held that the object and purpose of pleading
of issues is to ensure that the litigants come to trial with all
issues clearly defined and to prevent the cases being expanded
or grounds being shifted during trial. The object of issues is to
identify from the pleadings, the question or points required to be
decided by the Courts so as to enable the parties to let in
evidence thereon. When the facts necessary to make out a
particular claim, or to seek a particular relief, are not found in
the plaint, the defendant does not get an opportunity to place the
facts and contentions necessary to repudiate or challenge such a
claim or relief.
(d)- In the case of “Gurunath Manohar Pavaskar and
others” (supra), it has been held that if a person disputes
possession of another person over some property, burden of
proving shall lie on him.
(e)- In the case of “Sri Thimmaiah” (supra), it has been
held that in a suit for permanent injunction, the plaintiff has to
establish that he is in possession in order to be entitled to a
decree for permanent injunction. It has been held that the
general proposition is well settled that the plaintiff, not in
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possession, is not entitled to the relief without claiming recovery
of possession and that before an injunction can be granted, it has
to be shown that the plaintiff was in possession.
(f)- In the case of “Bhavnagar Municipality” (supra), it
has been held that in a suit for possession based on title to the
suit property, where the defendants have denied the title of the
plaintiff, it is necessary for the Court to give finding of title of
the plaintiff, even if the defendants in possession had not
pleaded adverse possession. As already discussed above, in the
present matters, Suresh/Surekha Kakodkar had not specifically
denied the title of Karmalis and Prabhu Dessai. Hence the above
judgment cannot be of any assistance to Suresh/Surekha
Kakodkar.
(g)- In the case of “Dubaria” (supra), the Apex Court has
held that the High Court was not justified in holding that second
appeal was concluded by findings of fact without considering
material and documentary evidence already on record and it was
the duty of the High Court to consider record in respect of suit
property. It has been held that in case of infirmity of excluding,
ignoring and overlooking the abundant materials and evidence,
which if considered in proper perspective would have led to a
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conclusion contrary to one taken by High Court and first
appellate Court, it would be open to Apex Court to interfere with
concurrent findings of fact arrived at by High Court and first
appellate Court.
(h)- In the case of “Rattan Dev” (supra), it has observed
that the First Appellate Court was bound to apply its mind to all
the evidence available on record and then test the legality of the
findings arrived at by the Trial Court. It has been held that nonapplication
of mind by the Appellate Court to other material,
though available, and consequent failure of the Appellate Court
to discharge its judicial obligation, did arise a question of law
having a substantial impact on the rights of the parties, and
therefore, the second appeal deserved to be heard on merits. No
doubt, it is true that the First Appellate Court, in Regular Civil
Appeal No. 88/2008 dismissed the said appeal merely because of
the Judgment of the Additional District Judge in Regular Civil
Appeal No. 21/2004, without discussing the merits of the
impugned judgment of the Trial Court or without discussing the
evidence produced in the said Regular Civil Suit No. 46/2008.
However, since now it is found that the judgment of the First
Appellate Court, in Regular Civil Appeal No. 21/2004, is
sustainable, the question of remanding the Regular Civil Appeal
SA3/05&9/09
… 35 …
No. 88/2008, for fresh decision after consideration of all the
material on record, will not serve any purpose.
30. None of the judgments discussed above and the
others cited by the learned Counsel for Suresh/Surekha
Kakodkar, though not discussed by me, render any assistance to
them. The substantial questions of law as framed in both the
appeals, therefore, get answered against Suresh/Surekha
Kakodkar. In view of the above, the impugned judgments and
orders passed by the learned First Appellate Court, in Regular
Civil Appeal No. 21/2004 and in Regular Civil Appeal No.
88/2008, are in accordance with the settled principles of law.
No interference with the same is warranted.
31. In the result, both the aforesaid appeals are
dismissed. However, in the facts and circumstances of the case
no order as to costs.
U. V. BAKRE, J.
SMA
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