TaxTMI 
TaxTMI 
2014 (3) TMI 1250
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....linibai Borkar contended that she was the owner in possession of the suit property known as ''Borodo Dongrachem Advona", also known as "Aforamento" situated at Nirancal in Ponda Taluka, described in the Land Registration Office under No. 4828 and in the Land Revenue Office under No. 779. This property, hereinafter referred to as "suit property" and was surveyed under Nos. 100/1, 101/1 and 103/0 of village Nirancal and that it was originally surveyed as per the cadastral survey and included in the cadastral survey No. 23B. 4. The plaintiff claimed that the suit property was purchased by her from Cipriano Cesar Coelho do Amaral and others by a Deed dated 27.08.1958. The predecessor in title of said vendors and also the plaintiff acquired the suit property by a Deed dated 25.02.1932 and thereafter, the suit property came to be allotted to the vendors and to the plaintiff as per the Deed of Partition dated 06.08.1958. 5. The plaintiff further submitted that she was in possession and enjoyment of the suit property since the time of its purchase and prior thereto her predecessors in title were in possession of the suit property. To support her claim, the plaintiff alleged c....
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....d 103/0. He submitted that neither in the old cadastral survey nor in the new survey, the name of the property is indicated as "Borodo Dongrachem Advona", also known as "Aforamento". The defendants stated that in the cadastral survey records, the land surveyed under No. 23 B was known as "Chemfegal Quelbithamum Chandry Boldem Dando", while in the recent survey, the name of the portion of the land surveyed under No. 100/1 is "Quelbai Thane" and that the portion of the land surveyed under Nos. 101/0 and 103/0 is "Chafegal". Defendant No. 1 also stated about, amongst others, various acts of the possession exercised by him in the portion of survey Nos. 100/1, 101/1 and 103/0 such as planting of various trees, cultivating paddy crops and so on. He also submitted that there was a granite block in the portion of the suit property which was exploited by him. Defendant No. 1 denied the allegations that defendant No. 2 had trespassed in the suit property in the year 1978 and that he was residing therein. 8. Defendant No. 1 further stated that house wherein defendant No. 2 was residing was originally a shed and was standing there for twenty years and that about 10 years prior to the suit h....
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....ted that said Venkatesh Porob and successor in title including defendant No. 1 himself were and are in continuous and exclusive possession of the entire land including survey Nos. 100/1, 101/1 and 103/0 and other survey numbers for over 70 years openly as of right and adversely of others and that his predecessor and he have acquired a crytalized prescriptive title to the same. Defendant No. 1 also stated that said entire land bears old cadastral survey Nos. 44, 23B, 23A and 46 presently bearing survey Nos. 71 (part), 96(part), 97, 98, 99, 100, 101, 102 and 103. Defendant No. 2, by filing the memo before the trial Court, adopted the written statement of defendant No. 1. 11. The trial Court framed in all ten issues, and after considering the evidence and arguments of the rival parties dismissed the suit by judgment and decree passed on 30.4.2001. 12. The trial Court found that plaintiff could not prove that she owned and possessed the suit property and that though ownership by title document was not clearly in favour of the defendants, there being evidence showing possession of the defendants in respect of the suit property, the defendants succeeded in proving that the suit pro....
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....e appellant/defendant No. 1 submits that the provisions of Rule 31 of Order 41 require that the First Appellate Court must frame all the points for determination that arise in the appeal, must record its decision in respect of each of the points and should support the conclusions by giving reasons. He further submits that the learned District Judge, in passing the impugned Judgment and order of remand, has acted completely contrary to the law and failed on all these three counts. He further submits that this was not a purely a case of boundary dispute warranting appointment of a commissioner. He submits that this was a case wherein the entire burden of proving her own case as regards ownership and possession of the suit property lay with the plaintiff and since the trial Court found that plaintiff failed to discharge this burden, the trial Court rightly dismissed the suit. 17. Learned counsel further submits that while dismissing the suit, the trial Court has not only considered the failure of the plaintiff to sufficiently establish the identity of the suit but also considered the fact that the evidence of the plaintiff which comprised oral as well as documentary evidence did no....
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....entity of the suit property and proving the physical boundaries of the suit property as mentioned in Conveyance deed of 1972 to be showing the same property as shown in the old cadastral survey No. 23B and surveyed under No. 100/1, 101/1 and 103/0. He has further submitted that the trial Court had also made an observation that things would have been different if the identification of the suit property through the boundaries was done by an expert surveyor and, therefore, the First Appellate Court rightly remanded the case to the trial Court. 20. On perusal of the judgment of the trial Court, it is no doubt seen that although the trial Court considered the nature of the evidence of attorney of the plaintiff PW Land his failure to properly identify the suit property. it also considered the other evidence of the plaintiff and evidence adduced by the defendants so as to arrive at a conclusion that plaintiff failed to establish her ownership and possession of the suit property and that the defendants could at least establish their possession and enjoyment of the suit property. But, it must be noted that inspite of consideration of the other evidence by the trial Court, main plank of r....
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....al boundary of the suit property defined under the conveyance, the old cadastral survey plan Article A (blue print) cannot be held to have proved the identification of the suit property as claimed by the plaintiff in the suit. The trial Court, no doubt has also found that no material was produced on record by the plaintiff as to when survey in old survey plan was conducted and that if there was any survey under old cadastral plan after the grant of the suit property to Dadu Devu Gaonkar or its sale by him to Cipriano Cesar Coelho Do Amaral, the name of the original owner. Comunidade of Nirancal appearing in cadastral survey plan Exh. PW1/D would have been deleted and the name of the purchaser would have been reflected, which however, was not the case as seen from the cadastral survey plan. But, this observation is only by way of an additional reason for rejecting the claim of the plaintiff as trial Court had found that the plaintiff had failed to establish the identity of the suit property by failure to examine some expert to establish the identity and boundary of the suit property. Failure of the plaintiff to explain absence of name of predecessor in title in the old survey plan w....
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....ated earlier. Such an approach of the First Appellate Court, I do not think, is erroneous or absolutely against interests of justice, rather it must be said, that such an approach was necessary to do justice between the parties to avoid further rounds of litigation and worsening of the dispute between the parties. 24. Learned counsel for the appellant/defendant No. 1 has submitted that there has been other evidence also brought on record by the parties which clearly establishes the fact that the plaintiffs could not prove ownership and possession of the suit property and therefore, the First Appellate Court committed a grave error of law in not considering this evidence by framing appropriate points for determination and giving her conclusions thereon. I am not inclined to accept this argument for the reason that the other evidence considered by the trial Court only resulted in a conclusion that the doubt arising from failure of the plaintiff to establish the identity and boundaries of the suit property by not examining the expert in the field of survey, has been further deepened and that in the opinion of trial Court things would have been different, had some expert been examin....
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....ts for determination and answered them, same would have resulted in miscarriage of justice. Since the remaining points have been kept open, both the parties will have equal opportunity to establish and prove their respective cases in the light of additional evidence, which may not have been possible if the First Appellate Court had recorded its findings on other aspects. Therefore, I am of the view that there has been substantial compliance with the provisions of Order 41, Rule 31 of C.P.C. which has not resulted in making the justice suffer. 28. in the case of H. Siddiqui, [2011(2) ALL MR 938 (S.C.)] (supra) relied upon by the learned counsel for the appellant' defendant No. 1, facts were that in the first appeal preferred before the High Court against the judgment and decree of the trial Court granting specific performance of contract, High Court had framed two issues, one related to doubt about the power of attorney having been allegedly executed by the defendant in favour of his brother enabling him to alienate his share in the property and the other related to non exercise of power by the trial Court in refusing specific performance of the contract by resorting to Sub-S....