2013 Supreme(Bom) 1685

IN THE HIGH COURT OF JUDICATURE BOMBAY (PANAJI BENCH)
F. M. REIS, J.
Mr. Jose Antonio Pedro Menino Fernandes & Anr.
Vs.
Mr. Inacio Fernandes & Am.
Second Appeal No.48 of 2011
Decided On : 27th August, 2013

Headnote:Civil Procedure Code, 1908 - Section 100 - Second appeal. - Concurrent findings of fact recorded by Courts below calls for no interference in second appeal. - It is also to be noted that there were acquisition proceedings for the Konkan Railway which were initiated by the Government. It is the contention of counsel appearing for the appellants that the appellants were also shown as interested parties in such acquisition proceedings. Court is afraid that on bare perusal of the documents produced by the appellants at Exhibit 40/C along with the croqui-attached thereto it clearly depicts the railway lines passing through the said property which was now the subject-matter of the said acquisition proceedings which is much beyond the road and the property surveyed under No. 2/4. Hence, merely because the appellants have been shown as interested parties by itself it cannot be said that they had any claim to such compensation on the basis of the document of title and other material on record which are referred to herein above.

       Civil Procedure Code, 1908 - Section 100 - Second appeal. - In absence of any misconstruction of land registration document by Courts below, concurrent findings that appellants have no claim over property, warrants no interference in second appeal. - The whole dispute between the parties boils down to interpret the document pursuant to which the appellants have become the owners of the suit property. On perusal of the document produced by the appellants, it is found in the records of the execution proceedings, an expert was appointed by the Judge to ascertain the extent of the property which was the subject-matter therein from the defendants in the said proceedings. On going through the report submitted by the expert, the property which was the subject-matter of the said execution proceedings has been depicted in the croqui which is attached to the said report. The croqui clearly depicts the extent of the property which was the subject-matter of the said proceedings. On perusal of the said croqui, the property shown therein in fact substantially corresponds to the property surveyed under No. 2/5 in the record of rights.

       The Courts below have also noted that the construction licence further corroborates the case of the respondents that the property of the appellants is restricted to the property surveyed under No. 2/5. In such circumstances, there was no misconstruction of the documents by the Courts below while passing the impugned judgments. The source of title of the appellants is the auction proceedings in the said execution proceedings. The source of title itself clearly suggest that the property which has been auctioned in favour of the mother of the appellants is the property surveyed in the record of rights under survey No. 2/5 of Village.

       Civil Procedure Code, 1908 - Section 100 - Second appeal. - Since Courts below, while dismissing suit, not misconstrued land registration document hence concurrent findings of Courts below that appellants failed to establish their claim over property, upheld. - It cannot be said that there is any misconstruction of the land registration document by the Courts below while dismissing the suit as well as the appeal preferred by the appellants. Both the Courts below on the basis of appreciating the evidence on record and considering the document of title produced by the appellants have concurrently come to the conclusion that the appellants have failed to establish their claim that any portion of the property surveyed under No. 2/4 forms part of the property of the appellants surveyed under No. 2/5. Apart from that, both the Courts below on the basis of appreciating the evidence on record have concurrently found that the property surveyed under No. 2/4 is in possession of the respondents herein.

       It is well settled that question of possession is a finding of fact. Both the Courts below have concurrently come to the conclusion that the appellants are in possession of the property surveyed under No. 2/5. No perversity has been shown by the appellants in the findings of the Courts below to that effect. Hence, the possession thereof established by the respondents read with the documents of title of the respondents clearly shows that the appellants have no claim over the property surveyed under No. 2/4.

       EVIDENCE ACT, 1872 - Section 52 - Tampering of evidence by parties. - In absence of cogent evidence regarding tampering of documents of execution proceeding by party, no inference can be drawn by Court on that count. - Section 52 of the Evidence Act clearly provides that in civil cases the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is irrelevant, except in so far as such character appears from facts otherwise relevant Hence, unless and until there is material on record to suggest that PW 1 was in fact responsible for the alleged tampering, the said character of PW 1 is irrelevant. In the present case, the documents which have been exhibited are certified copies from the relevant records. Unless there is conclusive evidence to show the alleged tampering, it is not open to the Lower Appellate Court to draw an inference on that count on the basis of the material on record.

       Merely because some pages of the relevant file are missing, unless there is conclusive evidence to show that the person who is responsible for such act, it was not open to the Courts below to draw an inference in the Civil proceedings in the manner sought to be done by the Appellate Court while disposing of the appeal preferred by the appellants. The findings of the Courts below to the effect that merely because the appellant No. 1 was convicted in a criminal case in connection with some fabrication of documents would be material for the purpose of coming to the conclusion that he cannot be believed in the present suit is totally misplaced. Even assuming that one of the appellant has been convicted for fabrication of documents by no stretch of imagination it can be said that their evidence cannot be considered by the Court in the suit filed by them for a substantive relief of declaration of title.

       This inference may be relevant in criminal case and by no stretch of imagination it has any relevance in a civil suit. Unless and until there is cogent evidence to establish that any fabrication of documents has been done by the party in the suit, it was not open to the Courts below to draw an inference on that count to disbelieve the appellants with regard to their claim in the suit.