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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. E.S. Da Silva, J.
Narayan Hari Naik.... Appellant.
Versus
Inacio Martins, son of Sebastiao Martins, since deceased,
through his legal representatives and others.... Respondents.
Second Civil Appeal No. 27 31 of 1988, decided on 5-4-1991.
Advocates appeared :
S.D. Lotlikar, for the appellant in S.C.A. No. 27/88 31/88.
M.S. Usgaonkar, Sr.A. with R.M.S. Khandeparkar, for legal representative of the respondent No. 1 in S.C.A. No. 27/88 31/88.
S.K. Kakodkar, Sr.A. with R.V. Kamat, for the respondent No. 2, in S.C.A. No. 27/88 31/88.
Section 11-Award of manse profits for more than three years-Held, manifestly unjust and without jurisdiction.
A decree providing for the ascertainment of mesne profits until delivery of possession of property should be so construed as to harmonise with the provisions of Order XX, Rule 12 (c) (iii), It is not competent for a Court to allow profits for a longer period by reason of Order XX, Rule 12 CPC The Court should construe such a decree as providing for the determination of the mesne profits until the recovery of possession but for not more than three years from the date of the decree. Hence the right of the decree-holder to recover future mesne profits should be restricted to three years from the date of the decree inspite of the provision in the decree directing enquiry as to mesne profits till recovery of possession of the property by the decree-holder. Therefore, the awarding of the mesne profits by the learned trial Judge of more than 3 years is manifestly an error of jurisdiction, thus rendering the decree, in this part, a nullity. Section 11-Principles of reg judicata-Applicability of-Even in cases where different reliefs are sought in two suits-Provided other conditions are satisfied,
Thus it is compelling to acknowledge that the subject-matter of the second suit was directly and substantially in issue in the previous suit between the same parties. The facts of the case clearly reveal that the res invoked in both the suits is the same. The lite is also the same. Hence the relief by itself is neither material nor relevant for the direct adjudication of the real issue. The relief is only a consequence. Therefore, the second suit is to be deemed as barred by res judicata.
Section 100-Second appeal-Question of subsistence of tenancy rights Mixed question of law and fact-Finding with regards to-Recorded without proper appreciation of evidence and by wrong application of law-Interference by High Court-Held, warranted.
This Court is justified in exercising its appellate jurisdiction to adjucicate on the same findings in the special circumstances of the case arising out of the fact that the findings recorded by the courts below are mixed findings of fact and law and also because both the trial Court and the first Appellate Court have rendered these findings without a proper appreciation of evidence in reasonable manner and arrived at the same by application of wrong tests and indulging on mere conjectures so as to render them vitiated and bound to be interfered with in this second appeal.
Dr. E.S. DA SILVA, J.:---These two appeals directed against the same judgement and decree of the first Appellate Court of the District and Sessions Judge, Panaji, can be conveniently disposed of by a common judgment since both involve fundamentally similar substantial questions of law.
2. The respondent No. 1 in both the Appeals, the late Inacio Martins (hereinafter called the late plaintiff), had instituted a Special Civil Suit No. 114/74/A in the Court of the Civil Judge, Senior Division, Panaji, against the two appellants, namely, one Narayan Hari Naik, the appellant in Second Civil Appeal No. 27 of 1988 (hereinafter called the defendant No. 1) and one Nayantara Agrawal, the appellant in Second Civil Appeal No. 31 of 1988 (hereinafter called the defendant No. 2), seeking for eviction of the defendant No. 1 from the suit property known as "Palmar Oiteiral do Predio Aivao" situated at Caranzalem, belonging to the defendant No. 2 as well as for restoration of its possession to him.
3. The relevant facts of the case are that this property which is a coconut grove was consisting of 7 lotes. In October, 1968, the late plaintiff filed a suit against the two defendants, being Suit No. 157/1968, in the Court of the Civil Judge, Senior Division, at Panaji, for declaration and permanent injunction, praying for a declaration that an agreement dated 1-1-1968 allegedly entered into between the defendant No. 1 and the defendant No. 2 in respect of the suit property was shame, bogus and inoperative in law and consequently that both the defendants be restrained by a permanent injunction from causing him any kind of interference in the suit property. It was his case in the said suit that he was a lessee of 2 out of the 7 lotes of the suit property upto 1963 and that thereafter, the remaining 5 lotes were also given on lease to him by the defendant No. 2 on an yearly rent of Rs. 3,600/- payable in 3 instalments, being all instalments payable in advance. The plaintiff paid all the money regularly upto December, 1967. A criminal case bearing No. 106 of 1968 was filed against him by the defendant No. 2 based on the agreement entered into by her with the defendant No. 1,, namely, the agreement dated 1-1-1968 by virtue of which it was alleged that the defendant No. 1 became lessee of the said defendant No. 2. It was further stated by the late plaintiff in his plaint that he was not removed from the suit property by any legal process by the defendant No. 2 and that relying in the said agreement dated 1-1-1968 the defendant No. 1 entered into the entire suit property on or about the end of second week of June, 1968 to the greatest prejudice of the plaintiff. It was also stated that the cause of action arose on or about 15-6-1968 when to the greatest prejudice and contrary to law for the time being in force, the defendant No. 1 entered the suit property, forcibly attempted to evict the plaintiff and got seized the coconuts plucked by him. On the aforesaid averments the plaintiff sought a relief of declaration and injunction against the defendant No. 1. The defendant No. 1 contested the suit and it was his case that the plaintiff was the lessee of only 2 out of the 7 lotes of the suit property till the year 1964 by virtue of the auction held in 1956 for a specific period of 9 years; that on the expiry of the lease period, leases of the lessees including that of the plaintiff were duly terminated and the defendant No. 1 was put in possession of the entire suit property consisting of 7 lotes in 1965 under the lease agreement which was initially for a period of 1 year, subsequently extended for a further period of 2 years, namely, 1966 and 1967, and again further renewed for the years 1968 and 1969. It was further his case that the amount of stipulated rent was sometimes paid by him directly to the employee of the defendant No. 2 Datta B.S. Quencro and sometimes through the late plaintiff who was then his watchman. It was also his case that the l
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