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2018 Supreme(Bom) 2276
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
C.V. Bhadang, J.
Goa Jain Mandal - Appellant
Versus
Yeshwant Lakhiman Pai Raikar, R/o Bandora, Ponda, Goa - Respondent
Second Appeal No. 67 of 2006
Decided On : 08-06-2018
Sudin Usgaonkar, Adv., Tanvi Kamat Ghanekar, Adv., J.P. Mulgaonkar, Adv., Siya Dhargalkar, Adv.
Headnote:
Evidence Act - Section 57 – Civil Procedure Code - Order XLI, Rule 31(a) - Rules, 1980 - present Second Appeal was admitted on the following substantial questions of law: Whether, the judgment of the Appellate Court does not conform to the mandatory requirement of Order XLI, Rule 31(a) of CPC, in as much as, it fails to frame the points for determination ? - Whether, there is a failure on the part of the Appellate Court to take cognizance of the notification under Goa Ancient Monuments and Archeological Sites and Remains Act, 1978 and Rules, 1980 framed there under, on the ground that notification is subsequent to the filing of the suit ? - Whether, even notification issued under the Act, is a law being under delegated legislation, it was obligatory on Court to consider it in the light of Section 57 of Evidence Act? – Held, Appellant-Society with temple or the suit property - Appellant-Society was formed in the year 1971. A specific query was made to the learned Senior Counsel for the appellant as to whether, the property in dispute is shown as property belonging to appellant-Society in its record, to which answer was in negative - Courts below, to my mind, have rightly come to the conclusion that the appellant has not established any nexus with temple or the property in dispute. Although, it was contended on behalf of appellant that the suit was not for declaration of title, the prayer clause 33(a) belies said contention - Prayer clause would clearly show that the appellant is claiming "demarcation and ownership of the respondent no. 1" to textent of 1, 301 square metres and of the remaining land in the name of the appellant – In Court considered view, appellant has failed to establish the claim for demarcation, as claimed in the suit as also on the basis of Article 2342 of the Code - Appeal is dismissed
JUDGMENT
C.V. Bhadang, J -On 22.03.2007, the present Second Appeal was admitted on the following substantial questions of law:
1. Whether, the judgment of the Appellate Court does not conform to the mandatory requirement of Order XLI, Rule 31(a) of CPC, in as much as, it fails to frame the points for determination ?
2. Whether, there is a failure on the part of the Appellate Court to take cognizance of the notification dated 04.03.1983, under the Goa Ancient Monuments and Archeological Sites and Remains Act, 1978 and Rules, 1980 framed thereunder, on the ground that the notification is subsequent to the filing of the suit ?
3. Whether, even the notification dated 04.03.1983, issued under the Act, is a law being under delegated legislation, it was obligatory on the Court to consider it in the light of Section 57 of the Evidence Act ?
2. During the course of hearing, the following two substantial questions of law came to be framed:
4. Whether, the Courts below erred in refusing to consider the case of demarcation in accordance with Article 2342 of the Portuguese Civil Code ?
5. Whether, in the absence of any title to establish the limits or the area belonging to each owner and in the absence of the contraversy being decided, based on possession or by any other means, the Court ought to have directed demarcation of the property equally ?
3. I have heard the learned Counsel for the parties on the aforesaid questions of law and the appeal is being disposed of finally.
4. The brief facts necessary for the disposal of the appeal may be stated thus:
The appellant (original plaintiff) is a Society, registered (somewhere in the year 1971) under the Societies Registration Act. The appellant filed Special Civil Suit No. 8/1981, against the respondents (defendants) for demarcation, declaration and injunction.
The subject matter of dispute happens to be a land survey no. 5/4, admeasuring 6, 925 square metres, better known as ''Piramol'' situated within the jurisdiction of Village Panchayat Bandora, Tehsil, Ponda, Goa. There is a sketch annexed to the plaint (Exhibit-A). The specific case made out by the appellant is that the portion shown by letters A, B, C, D, O, P, Q, R, S, T, U, V, W, X, Y and Z, from out of land survey no. 5/4 (hereinafter referred to as the suit property), belongs to the plaintiff, while the remaining portion shown by letters D, E, F, G, H, I, J, K, L, M, N and O, admeasuring 1, 301 square metres belongs to the defendant no. 1. It was contended that the plaintiff is entitled to get the suit property demarcated, so as to form a separate portion from out of survey no. 5/4.
5. According to the appellant, the plaintiff is having a temple namely, "Neminath" temple in land survey no. 5/3 shown by letter "T" in the sketch, annexed to the plaint. The said temple is very old, existing for more than 700 years. It is submitted that there is one tank, which is part of survey no. 5/4.
The temple maintains pujari for performing the duties and rituals in the temple. It was contended that there are fruit bearing trees in the suit property, which are being plucked by the plaintiff and their representatives for more than 30 years and the suit property is utilised by the appellant and it''s representatives for different religious ceremonies and other purposes. It was also contended that survey no. 5/3 (where the temple is situated), is away from the road, while the suit property is adjoining to the public road and in order to reach the temple, one has to necessarily pass, through the suit property.
6. It was contended that the suit property is shown as agricultural land, wherein construction or development is not permissible. It was contended that defendant no. 3, without any permission, started digging foundation in the suit property and on enquiry, it was learnt that defendant nos. 1 and 2, have sold a part of the suit property, admeasuring 2, 000 square metres, in the south-east corner, to the defendant no. 3/respondent no. 3. It was c
