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IN THE HIGH COURT OF BOMBAY AT GOA
F.M. REIS, J.
Mrs. Fatima Gomes Furtado – Appellant
Versus
Smt. Indirabai Vinayak Lotlikar - Respondents
SA No.81 of 2006
Decided on : 4.9.2015
Title Dispute - Property Dispute - Order XXVI Rule 9 of CPC - Sale Deed 1916 - Encroachment - Commissioner Appointment
Fact of the Case:
The appellants claimed ownership of a disputed property based on a Sale Deed dated 17/01/1916, alleging encroachment by the respondents. The Lower Appellate Court rejected the claim, leading to the appeal.
Finding of the Court:
The Court found that the appellants' claim had sufficient foundation in the pleadings to contend that there was an encroachment, and the Lower Appellate Court erred in rejecting the claim. It was held that the appointment of a Commissioner under Order 26 Rule 9 of the Civil Procedure Code was necessary to examine the alleged claim of the parties based on the documents of title.
Issues: The issues revolved around the ownership dispute, alleged encroachment, and the Lower Appellate Court's rejection of the appellants' claim.
Ratio Decidendi: The Court emphasized the need for a Commissioner appointment to examine the documents of title and determine the existence of encroachment, as well as the Lower Appellate Court's error in rejecting the claim without proper examination.
Final Decision: The impugned judgment and decree of the Lower Appellate Court were quashed and set aside, and the matter was remanded for a fresh decision after appointing a Commissioner. The appeal was partly allowed, and the costs of the Commissioner were to be borne by the appellants.
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 the pleadings and evidence on record?
e) Whether the Lower Appellate Court has committed jurisdictional error by not following the ratio laid down by the Honourable Supreme Court in the case of Santosh Hazare V/s Purshottam Tiwari, reported in (2001) 3 SCC 179, which enjoins the Appellant Court to come in close quarters with the findings given by the Trial Court while reversing the same?
3. On the last date of hearing, when the matter was argued, the parties were also put to notice that an additional substantial question of law would be framed if the matter was heard on merits. Accordingly, the following additional substantial question of law was framed:
“Whether, in terms of the provisions of Order XXVI, Rule 9 of CPC, 1908 and the law laid down by the Hon'ble Apex Court as well as by this Court in respect thereof, the Courts below were duty bound to appoint a Commissioner to conduct inspection at loco, the suit being filed by the appellant on account of encroachment by the respondents in the property of the appellant and having failed to do so, the Judgments and Decrees are liable to be quashed and set aside?
4. When the matter was heard on the last date of hearing, considering that ultimately the alleged claim of the appellants was around 50 square metres, opportunities were given to the parties to explore the possibility of settlement and consider whether the dispute could be resolved on payment of compensation to the appellants. But however, despite of opportunities given by this Court, the learned Counsel appearing for the respective parties have pointed out that no settlement could be arrived at and, as such, the matter was heard on merits.
5. Mr. P. Rao, learned Counsel appearing for the appellants pointed out that the source of title of the appellants is based on the Sale Deed dated 17/01/1916 whereby the predecessor in title of the appellants had purchased the disputed property from the original owner of the property. The learned Counsel further points out that the appellants is the grandson of the original purchaser and, as such, he is entitled for an area of 100 square metres as disclosed in such Sale Deed. The learned Counsel further points out that it is not disputed that the said Sale Deed is pertaining to the disputed property claimed by the appellants, but however, according to the learned Counsel a portion of the property belonging to the appellants is wrongly surveyed in the record of rights under Survey No.39/14 and 39/15. The learned Counsel further points out that though the appellants have purchased an area of 100 square metres only an area of 50 square metres is recorded in the name of the appellants in survey record in respect of the property surveyed under no.39/19. The learned Counsel further pointed out that once the titl
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