Case Note & Summary
This second appeal arose from a property dispute concerning survey numbers 46/3 and 46/4 in Valpoi, Goa. The plaintiffs (respondents in the appeal) had purchased a property known as 'Canvalacodil' through Sale Deed dated 20.08.1973 and claimed that the land under Survey No. 46/3 was part of that property, not a separate strip. They filed Special Civil Suit No. 19/1991/A seeking declaration, permanent injunction against the defendants (appellants) who allegedly claimed right of way and were laying a water pipeline, and correction of survey records. The Trial Court dismissed the suit, holding the plaintiffs failed to prove that Survey No. 46/3 was part of their purchased property. On appeal, the First Appellate Court reversed the decision and decreed the suit, leading the defendants to file this second appeal. The appeal was admitted on substantial questions of law concerning whether the First Appellate Court could declare the appellants had no right based solely on boundaries in the sale deed without evidence of vendor's title, identification by plan, and considering the separate survey of Survey No. 46/3 with Government as occupant and old cadastral records in Government's name; and whether the First Appellate Court misdirected itself by focusing on weakness of the defence instead of requiring the plaintiffs to prove their own case. The appellants argued that the First Appellate Court failed to re-appreciate evidence properly, did not give reasons for differing from the Trial Court, and relied on an unadmitted Commissioner's Report. They contended the plaintiffs had not produced a plan or examined a surveyor to correlate the sale deed property with the survey numbers, and that the decree was vitiated by perversity. The respondents defended the First Appellate Court's decision, arguing it had correctly reappreciated evidence and that the government had not led any evidence. The judgment, however, remains incomplete in the provided text, and the final decision of the High Court is not recorded.
Headnote
A) Civil Procedure – Second Appeal – Scope of Reappreciation by First Appellate Court – Code of Civil Procedure, 1908 – Section 100 – The substantial question of law raised was whether the First Appellate Court could have declared the appellants had no right, title or possession in respect of Survey No. 46/3, merely on the strength of boundaries in the Sale Deed dated 20.08.1973, in the absence of evidence showing that the property surveyed under Survey No. 46/3 belonged to the vendors of the respondents, any identification of the area of 500 square metres admittedly purchased by the respondents with reference to a plan or crocky, the fact that Survey No. 46/3 had been separately surveyed from Survey No. 46/4 with the Government as 'occupant', and that in the Old Cadastral Survey the corresponding plots were recorded in the name of the Government. The appellant argued that the First Appellate Court failed to discharge its duty to properly re-appreciate evidence and substitute findings, as required by Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, and that the plaintiffs had not produced any plan or examined a surveyor to correlate the sale deed property with the survey numbers. The Court examined these contentions (Paras 2, 9-10). B) Evidence – Burden of Proof – Plaintiff to Stand on Own Case – The appellant contended that the First Appellate Court erred in taking into account the weakness of the defence instead of ascertaining whether the plaintiffs had established the case pleaded by them. Reliance was placed on the principle that the plaintiffs must stand or fall on the strength of their own case and cannot draw sustenance from the weakness of the defendants' case, as held in Sebastiao Luis Fernandes v. K.V.P. Shastri, (2015) 2 ALL MR (SC) 930. The Court considered this submission in the context of the substantial question of law relating to misdirection by the First Appellate Court (Paras 2, 11). C) Civil Procedure – Second Appeal – Interference on Ground of Perversity – Code of Civil Procedure, 1908 – Section 100 – The appellant relied on Rajasthan State Road Transport Corporation v. Bajrang Lal, (2014) 4 SCC 693 and Sebastiao Luis Fernandes (supra) to argue that a finding of fact vitiated by perversity can be interfered with under Section 100 of the CPC. The contention was that the First Appellate Court's findings were perverse due to lack of evidence correlating the sale deed property with the survey numbers and reliance on an unadmitted Commissioner's Report (Exhibit-45). The Court considered whether the impugned judgment exhibited perversity warranting interference (Paras 12-14).
Issue of Consideration
Whether the First Appellate Court could have declared that the appellants had no right, title or possession in respect of Survey No. 46/3, merely on the strength of the boundaries mentioned in the Sale Deed dated 20.08.1973, in the absence of evidence about vendor's title, identification by plan or crocky, separate survey of Survey No. 46/3 with Government as occupant, and Old Cadastral Survey records in Government's name; and whether the First Appellate Court misdirected itself by considering the weakness of the defence instead of whether the plaintiffs established their case.
Law Points
- boundaries prevail over area in case of discrepancy
- plaintiff must prove own case independently
- first appellate court must re-appreciate evidence and give reasons
- perversity of finding is ground for interference under Section 100 CPC
- Commissioner's report must be formally proved to be admissible evidence
