Case Note & Summary
The case involves a second appeal before the High Court of Bombay at Goa arising from a property dispute. The appellants, Jose Antonio Pedro Menino Fernandes and his wife Lydia Angelina Fernandes, challenged the decisions of the courts below which had misconstrued and misread crucial documents. The dispute centers on the interpretation of Exhibit 40/C, which is an order passed in Accao de posse Judicial process No.3379/47 of the Tribunal da Comarca de Salcete (Auction of judicial possession process No.3379/47 of the Civil Judge Senior Division, at Margao). This document contains the area, boundaries, and sketch of the property and was instituted by the late Joaquina Benedita Fernandes, mother of Appellant No.1, pursuant to a purchase made by her at a judicial public auction. Additionally, the courts below misread the Order made in Inventory proceedings No.82/84 of the Court of Civil Judge Senior Division, Margao, which contains property of the appellants bearing Land Registration No.35993, inscribed in the name of the late mother of the appellant under No.48895 in the Office of Sub Registrar, Margao, Matriz No.291 and survey No.2/4 and 2/5 of Village. The substantial questions of law framed were whether the courts below erred in misconstruing and misreading these documents, thereby affecting the decision on merits. The High Court admitted the second appeal on these questions. The judgment does not provide the final decision or detailed analysis beyond the admission of the appeal.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - The court admitted the second appeal on two substantial questions of law regarding misreading of documents at Exhibit 40/C and Inventory Order No.82/84, which contain area, boundaries, and sketch of the property, affecting the decision on merits. (Paras 2)
B) Property Law - Judicial Auction - Title - The document at Exhibit 40/C pertains to a judicial auction process instituted by the mother of Appellant No.1, which was misconstrued by the courts below, impacting the determination of title. (Paras 2)
C) Property Law - Inventory Proceedings - Land Registration - The Order in Inventory proceedings No.82/84 contains property of the appellants bearing Land Registration No.35993, inscribed in the name of the late mother of the appellant, which was misread by the courts below. (Paras 2)
Issue of Consideration
Whether the courts below erred in misconstruing and misreading the documents at Exhibit 40/C passed in Accao de posse Judicial process No.3379/47 and the Order made in Inventory proceedings No.82/84.
Final Decision
The second appeal was admitted on the substantial questions of law. The judgment does not provide the final decision on the merits.
Law Points
- Misreading of documents
- Judicial auction
- Inventory proceedings
- Substantial question of law
- Second appeal
Case Details
2013 LawText (BOM) (08) 136
SECOND APPEAL NO. 48 OF 2011
Mr. S. S. Kakodkar for the appellants; Mr. S. D. Lotlikar, Senior Advocate with Mr. P. S. Lotlikar and Mr. C. Padgaonkar for the respondents
Mr. Jose Antonio Pedro Menino Fernandes and Mrs. Lydia Angelina Fernandes
Mr. Inacio Fernandes and Mrs. Viola Fernandes
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Nature of Litigation
Second appeal against the judgment of the courts below in a property dispute.
Remedy Sought
The appellants sought to challenge the decisions of the courts below on the ground that they misconstrued and misread documents at Exhibit 40/C and Inventory Order No.82/84.
Filing Reason
The appellants alleged that the courts below erred in misreading documents that contain area, boundaries, and sketch of the property, affecting the decision on merits.
Previous Decisions
The courts below had decided against the appellants, leading to the filing of the second appeal.
Issues
Whether the courts below erred in misconstruing and misreading the documents at Exhibit 40/C passed in Accao de posse Judicial process No.3379/47.
Whether the courts below erred in misconstruing and misreading the Order made in Inventory proceedings No.82/84.
Submissions/Arguments
Mr. S. S. Kakodkar, learned counsel appearing for the appellants, argued that the courts below misread the documents.
Mr. S. D. Lotlikar, learned Senior Counsel appearing for the respondents, opposed the appeal.
Ratio Decidendi
The court admitted the second appeal on the ground that the courts below misconstrued and misread the documents at Exhibit 40/C and Inventory Order No.82/84, which contain area, boundaries, and sketch of the property, thereby affecting the decision on merits.
Judgment Excerpts
The above Second Appeal came to be admitted on the following substantial questions of law : (i) Whether Courts below erred, misconstrued and misread the documents at Exhibit 40/C passed in Accao de posse Judicial process No.3379/47 of Tribunal da Comarca de Salcete (Auction of judicial possession process No.3379/47 of Civil Judge Senior Division, at Margao) which Order inter alia contain area, boundaries of the property and sketch, the said Judicial process instituted by late Joaquina Benedita Fernandes (Mother of the Appellant No.1) pursuant to the purchase made by her at judicial public Auction thereby affecting the decision of the case on merits. (ii) Whether Courts below erred, misconstrued and misread the Order made in Inventory proceedings bearing No.82/84 of the Court of Civil Judge Senior Division, Margao which contains inter alia property of the Appellants bearing Land Registration No.35993, inscribed in the name of late mother of the Appellant under No.48895 in the Office of Sub Registrar, Margao, Matriz No.291 and survey No.2/4 and 2/5 of Village.
Procedural History
The case originated from a property dispute in the courts below, which decided against the appellants. The appellants then filed a second appeal before the High Court of Bombay at Goa, which was admitted on the substantial questions of law as stated.
