Case Note & Summary
This second appeal was filed before the High Court of Bombay at Goa against the judgment and order dated 13.10.2004 passed by the Court of Adhoc Additional District Judge, Panaji, in Regular Civil Appeal No. 158 of 2002. The appeal arose from a civil suit for permanent injunction and recovery of possession concerning immovable property bearing survey no.399/7, known as 'Ponsxem', situated in Village Tivim, Bardez, Goa. The appellants were the original defendants, while the respondents were the original plaintiffs. The core controversy centered on the identity of the property purchased under a sale deed dated 15.11.1968. The respondents-plaintiffs claimed that they had purchased the suit property at survey no.399/7 under the said sale deed and alleged that the appellants-defendants were illegally in possession of a structure on that property, entitling the plaintiffs to a decree for recovery of possession and an injunction restraining construction. The appellants-defendants denied the claim, asserting that the respondents had actually purchased an adjoining property bearing survey no.398/4 under the same or another sale deed, that both properties belonged to the same original owner, and that the parents of appellant no.1 had constructed a mud house on survey no.399/7 and had acquired the status of Mundkari. The Trial Court framed specific issues, including issue no.1 (whether the plaintiffs proved co-ownership and exclusive possession of survey no.399/7 purchased under sale deed dated 15.11.1968) and issue no.4 (whether the defendants proved that the property purchased by the plaintiffs was not the suit property but adjoining property survey no.398/4 under sale deed dated 05.11.1968 belonging to late Monica Severina Lobo). After considering the evidence, the Trial Court concluded that the property actually purchased by the respondents was completely different from the suit property, answered issue no.1 in the negative against the plaintiffs and issue no.4 in the affirmative in favour of the defendants, and dismissed the suit. Aggrieved, the matter went in first appeal to the District Court, being Regular Civil Appeal No. 158 of 2002. The first appellate court framed two points for consideration and answered both in favour of the respondents-plaintiffs. It held that since the defendants had failed to prove their specific contention that the plaintiffs had purchased survey no.398/4, the plaintiffs' case that they had purchased the suit property survey no.399/7 was strengthened. Consequently, the first appellate court reversed the trial court and decreed the suit, directing the appellants to vacate the suit structure and restore possession to the respondents. The appellants (original defendants) then filed the present Second Appeal No. 31 of 2005 before the High Court. By order dated 01.09.2005, the High Court admitted the appeal on two substantial questions of law: (1) whether the first appellate court was justified in holding that the sale deed dated 15.11.1968 related to the subject property, and (2) whether the first appellate court committed illegality in shifting the burden of proof onto the appellant-defendant when the burden lay solely on the respondent-plaintiff to prove the identity of the suit property. The respondents were served but chose not to appear. The Court appointed Mr. S. D. Lotlikar, Senior Advocate, as Amicus Curiae for the appellants. The amicus curiae submitted that there was a serious dispute about the identity of the suit property, including its boundaries; that the court ought to have appointed a commissioner for local investigation; and that the first appellate court had erred in placing the burden on the defendants when the burden lay on the plaintiffs to prove their claim. Reliance was placed on a decision of the same High Court in Mr. Bento Antonio Gomes alias v. Rosario Salvador Carneiro, Second Appeal No. 24 of 2004 dated 06.12.2012. The provided judgment text ends at paragraph 10 mid-sentence, and no final decision, ratio decidendi, or operative direction is recorded in the text made available for extraction.
Headnote
A) Civil Procedure - Second Appeal - Substantial Questions of Law - Code of Civil Procedure, 1908 - The High Court admitted the second appeal on two substantial questions of law: (1) whether the first appellate court was justified in holding that the sale deed dated 15.11.1968 related to the subject property, and (2) whether the first appellate court illegally shifted the burden of proof as to identity of the suit property onto the defendants. Held: The appeal was admitted on these questions for final adjudication (Para 8). B) Evidence - Burden of Proof - Identity of Suit Property - Not mentioned - The amicus curiae argued that because the defendants disputed the identity of the suit property, the burden lay solely on the plaintiffs to prove that the property covered by the sale deed dated 15.11.1968 was the suit property; the first appellate court erred in placing this burden on the defendants. Reliance was placed on Mr. Bento Antonio Gomes alias v. Rosario Salvador Carneiro, Second Appeal No. 24 of 2004, to contend that a court commissioner should have been appointed for local investigation. Held: Not mentioned due to incomplete judgment text (Para 10).
Issue of Consideration
Whether the first appellate court was justified in holding that the Sale Deed dated 15.11.1968 related to the subject property bearing survey no.399/7; and whether the first appellate court committed illegality in shifting the burden of proof as to identity of the suit property onto the appellant-defendant when such burden lay solely on the respondent-plaintiff
Law Points
- In a suit for recovery of possession and permanent injunction
- the burden of proof as to identity of the suit property lies on the plaintiff
- not on the defendant
- when there is a dispute about boundaries and identity of immovable property
- the court ought to appoint a court commissioner for local investigation
- the first appellate court cannot shift the burden of proof onto the defendant merely because the defendant failed to prove an alternate property description
