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V.R.KRISHNA IYER, A.C.GUPTA, R.S.SARKARIA
Jose Da Costa – Appellant
Versus
Bscora Sadasiva Sinai Narcornim – Respondent
What is the effect of the repeal of Portuguese Civil Code provisions on pending appeals and the right to raise issues not previously decided? What is the scope of the Supreme Court's power under Article 136 of the Constitution to do complete justice? How to determine if a plea of prescription has been adequately addressed in lower courts?
Key Points: - The appeal concerns a dispute over ownership of a suit property in Goa, Daman and Diu, originally governed by Portuguese law [1000166670002]. - The plaintiffs sought ejectment of the defendants from the property, alleging they were the rightful owners [1000166670004]. - The defendants claimed ownership by prescription, asserting continuous possession for over 50 years [1000166670006]. - The trial court decreed ejectment but allowed the defendants to remove their structures or receive compensation [1000166670008]. - The appellate court affirmed the trial court's decision but failed to provide a specific finding on the plea of prescription [1000166670009][1000166670016]. - The Supreme Court considered whether the defendants were precluded from raising the plea of prescription due to not filing a "reclamacao" under the Portuguese Civil Code [1000166670011]. - The Court held that the provisions of the Portuguese Civil Code relating to "reclamacao" were procedural and not substantive rights, and were repealed by Indian law before the judgment under appeal [1000166670030][1000166670032]. - The Supreme Court invoked its powers under Article 136 and Article 142 of the Constitution to ensure complete justice [1000166670033]. - The case was remitted to the Court of the Judicial Commissioner, Goa, Daman and Diu, to record a specific finding on the issue of prescription (!) .
Judgement
SARKARIA, J.:- This appeal by special leave is directed against a judgment dated January 20, 1968, of the Additional Judicial Commissioner, Goa, Daman and Diu.
2. The defendants, Jose Da Costa and his wife, Isabela Braganca, are the appellants, and the plaintiffs, Bascora Sadasiva Sinai Narcornim and is situated in the town of Sanguem, District Goa.
3. The plaintiffs instituted a suit on February 27, 1961 in the Court of Judge of Quepem Comarca in accordance with the Portuguese Law then in force in these territories for ejectment of the defendants from the suit property. It was alleged that on the death of Sadasiva, father of the plaintiff Bascora, in partition proceedings with minors (inventario), this plot was assigned to Bascora s mother Sitabai towards her moiety in the estate. On Sitabai s death, the property devolved on the plaintiffs-Bascora and his six sisters. Before the partition, of the property among the legal heirs of Sitabai, Bascora acquired the rights from some of his sisters and became the owner of the suit property with other heirs. Bascora s parents had inherited this property from their ancestors. The father of Bascora had permitted the ancestors of the d
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