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F.M.REIS
Fatima Gomes Furtado – Appellant
Versus
Indirabai Vinayak Lotlikar – Respondent
Certainly. Based on the provided legal document, here are the key points:
The main legal issue concerns the necessity of appointing a Court Commissioner under Order 26 Rule 9 of the Civil Procedure Code to examine claims based on documents of title in property disputes (!) (!) .
The case involves a dispute over ownership and encroachment of a property purchased through a Sale Deed dated 17/01/1916. The appellants claim ownership based on this deed, while the lower court initially rejected their claim [Fact of the Case].
The appellate court found that the appellants' pleadings sufficiently established a claim of encroachment and that the lower court erred in rejecting it without proper examination. It emphasized the importance of appointing a Commissioner to investigate the claim based on the documents of title [Finding of the Court] (!) .
The appellate court identified that the pleadings clearly stated that the property purchased was 100 square meters, but the survey records showed only 50 square meters in the appellants' name, indicating possible encroachment on the eastern and northern sides (!) .
The Court noted that the evidence on record, including expert reports and survey plans, supported the claim of encroachment, and that the failure to appoint a Commissioner hindered proper examination of the dispute (!) (!) .
The Court highlighted that in cases of encroachment, it is always appropriate to appoint a Commissioner to inspect the site and examine the claims based on documents of title. The absence of such an investigation was deemed a procedural error warranting remand (!) (!) .
The appellate court's judgment was quashed, and the matter was remanded to the lower appellate court with directions to appoint a Commissioner, conduct a local inspection, and decide the case afresh (!) (!) .
The order included that the costs of the Commissioner would be borne by the appellants, and the parties were instructed to appear before the lower court on a specified date for further proceedings (!) .
The appeal was partly allowed, with the original judgment and decree set aside, and the case remitted for a fresh decision after proper investigation (!) (!) (!) .
All contentions on the merits of the case were left open, and the parties' rights to contest the issues in the new proceedings were preserved (!) (!) .
These points encapsulate the core legal principles, procedural directions, and the court's reasoning in the case.
Heard Mr. P. Rao, learned Counsel appearing for the appellants and Mr. J. Godinho, learned Counsel appearing for respondents no.1, 4 to 12.
2. The above appeal came to be admitted by an order dated 13/11/2009 on the following substantial questions of law:
a) Whether the Lower Appellate Court could have reversed the Decree passed by the learned Trial Court after holding that the Appellants' predecessor in title vide Deed of Sale dated 17.01.1916 purchased the suit property in as much as pursuant to such Deed of Sale, the Appellants proved the title to the suit property and it was incumbent upon the Lower Appellate Court to decree the suit in terms of prayer clause (b) for declaration and further direct demarcation of the suit property in terms of prayer clause (aa),
b) Whether in view of the clear Title Deed viz. Deed of Sale dated 17.01.1916 and the plan of the Communidade showing the purchase made by the Appellants, could the Lower Appellate Court deny Decree of demarcation of the suit property?
d) Whether the findings of the Lower Appellate Court that the Appellants admit ownership of the Respondents in respect of Survey Nos.39/14 and 39/15 are perverse and contrary to
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