1994 Supreme(Bom) 517

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. E.S. Da Silva, J.
Dr. Gerson Ferreira.... Petitioner.
Versus
Dr. Inacio Cruz dos M. Paes and others.... Respondents.
Writ Petition No. 241 of 1990, decided on 19-9-1994.
Advocates appeared :
F. Rebello, for the petitioner

Headnote:Sections 113 & 115-Scope of.

       Section 115 of the Code keeps open to the Collector to exercise his powers under Section 113 in order to settle disputes regarding boundaries even in respect of promulgated record-of-rights. Otherwise and if this was not the reasonable interpretation emorgent from the legal provision, Section 113 would be inconsistent by itself and meaningless in the context of the provisions of the Code. This being the position it seems that the presumption of authenticity or the survey records referred to in Section 115 should be construed as referring only to the entries on the survey records and not in respect of its boundaries. The very warding of Section 113 does not seem to put any limitation or time restriction for any aggrieved party to approach the Collector and raise any dispute regarding the boundaries between two individual holdings even after the promulgation of survey records.

       The impugned judgment of the Tribunal insofar as it held that there cannot be said that there was a dispute to be adjudicated between the petitioner and the respondent No. 1 within the meaning of Section 113 is manifestly wrong once the concurrent findings of the two Courts below have acknowledged that the suit property was a common one to the petitioner and to both the respondents and also that it was held on co-ownership by them.

       Further the finding of the Tribunal that the Code does not contemplate a re-survey individual holding is again obviously against the express provision of Section 113 which in unmistakable terms enables the Collector to decide any dispute which arises concerning the boundary of a village or a field or a holding which has not been surveyed and even at any time after the completion of the survey a dispute which arises concerning the boundary of any village or any number of sub-division of a survey number, after holding a formal enquiry and giving to all interested person an opportunity to appear and produce evidence.

       Similarly the argument that the first appellate Court has not given reasons as to why the old survey plan should be followed is also patently misconceived because the Additional Collector while holding it reliable has expressly said that he was authenticity of the old survey plan has not been questioned by any of the co-owners and therefore the new survey plan could not deprive from the old. It is to be borne in mind that the Tribunal in refusing to support this finding of the Deputy Collector, which seems to be quite sound and permissible, failed to consider that the cadastral survey was a document prepared many decades prior to the organisation of the new survey wherein all the features and configurations of the individual holdings had been properly depicted in a competent plan which none of the parties had challenged or disputed.

       Admittedly the record shows that when the old survey was relied by the petitioner no objection was raised by the respondents, namely, by the respondent No. 1 regarding its authenticity and genuineness On the contrary the defence pleas advanced by the respondent were all round the fact that the petitioner had not disclosed its title to the suit property nor any document had been produced in respect of his contention that he owns the suit property for himself. Therefore since the petitioner did not own any property within the range of Survey No. 107.

       Section 113 of the Code had been wrongly invoked by him to give a colour of a boundary dispute. The respondent has thus challenged the jurisdiction of the Court of the Deputy Collector decide an issue which according to him was of the competence of the civil court only. In addition the respondent has also contended that the petitioner had never been in possession or enjoyment of holding No. 207/4 which was in exclusive possession and enjoyment of the respondent along with other heirs. It was also sought to be contended by the respondent that the petitioner did not possess any coconut trees in the suit property and therefore after the promulgation of the record of rights based on possession of the parties there was no question of the petitioner claiming the inclusion of 25 sq. meters shown under Survey No. 107/1 being in the holding surveyed under No. 107/4.

       LETEERS PATENT (BOMBAY)

       Clause 12-Jewist Law of Marriage and Divorce-Husbands divorce petition- Where can be allowed?

       Held, the husband has to make out one of the two grounds mentioned in the Mosaic Law and its Rabbinical Interpretation and Provisions, namely, (i) obstinate refusal of connubial rights during a whole year and (ii) insulating her father-in-law in the presence of her husband or insulating the husband himself.

       The High Court has gone through the entire evidence on the question of costinate refusal of connobial rights during a whole year. The case sought to be made out is of absence of cohabitation between February, 1984 to March, 1985. However, husbands evidence in para 6 of his examination in chief gives a complete go-by this ground.

       The cross-examination of the husband shows that he paid very little attention to his wife and children. He admitted having an affair with the widow of his friend namely, F. He admitted having provided very little to his wife and children necessitating the wife to take a teaching job and tution from which earning also he was drawing some amount. There is nothing on record to show that the wife obstinately refused to cohabit with the husband. The evidence of the mother of the husband does not suggest any obstinate refusal on the part of the wife to cohabit with the husband.

       On the contrary, the evidence of the wife S shows that there was a regular cohabitation between the spouses. Even after the petition was filed they were living in the same house and she admitted having sexual relations with the husband in 1987-88 also. She categorically says that the husband paid no attention to her or to their children and that she was forced to support the family.

       The articles of furniture, T. V. etc., in the house were admittedly purchased by the wife since the husband did not find it worth-while spending in his own house. The husband did not brother to wish the wife on her birthday on 31st December, but on the birthday of F on 8th September he had brought a cake. The wife was repeatedly humiliated in the presence of F and the parents and sisters of the husband. The wifes ornaments were taken in 1977 at the time of marriage of the husbands sister R.

       Those gold ornaments weighed as many as 9 tolas and nothing was given to her ia return. Similar demand was made to her at the time of marriage of husbands younger sister J in 1982. Naturally the wife protested and nothing wrong in her behaviour in asserting her own views is the family where she was trying to support the family by her meagre earnings because her husband was not interested in her but was interested in F.

       Thus on appreciation of the entire evidence, the husband has failed to prove the allegation that the wife and obstinately refused to cohabit with him during one year i.e., from February 1984 to March 1985. Evidence on this point is wholly unsatisfactory and we can find no fault with the wife for the manner in which she behaved.

       On the ground of the wife insulting her father-in-law in the presence of the husband or insulting husband himself, the evidence equally unsatisfactory. There are no details of this conduct in the petition. What is alleged in para 11 of the petition is general picture of the relation between the husband and wife where the husband was not sending enough on the family resulting in the wife taking tutions and trying to support the family with her meagre earnings.

       The specific instance alleged is only regarding the disagreement over the behaviour of their daughter F. Whereas the mother wanted to discipline her daughter in a particular way, the father had different views on the subject, In the peculiar facts on record where we find on record where we find that the mother was doing more for the family and the children, she was trying to impose her discipline on her daughter. There are no specific instances alleged in the petition to suggest that the wife insulted her father-in-law in the presence of her husband or insulted the husband himself. When the evidence of the husband is exercised, he refers to some disagreement between the parties on some minor incidents, which constitute the daily wear and tear of matrimonial life.

       Though the husband was earning enough from his job with Glaxo, he was not spending enough on the family. This was the reason which compelld the wife to take a teaching job and tutions, From the meagre earnings which she got, she had to give the usual cuts to the teachers who recommended the students to her for tutions. The husband did not give her liberty of spending her entire income from the tuitions. Out of her meagre income of about Rs. 400/- p. m. the husband used to withdraw a sum of Rs. 200/- p. m. and was payiag her only Res. 100/-. This is clear from his admission para 15 of his evidence.

       The evidence further shows that the wife had no respect in the house.

       The parents of the husband and his sisters used to humiliate the wife despite her sacrifice for the family. If in these circumstances, the wife to tried assert her such a conduct can be construed at insulting the father-in-law or insulting the husband himself.