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B.P. Dharmadhikari, J.—These appeals challenge the common Judgment & Decree dated 19.3.1994 delivered by Civil Judge, Senior Division, Mapusa in Special Civil Suits No. 416/86/A, 420/86/A, 16/87/A and 499/87/A. Special Civil Suit No. 416/86/A was filed by the deceased Raghunathrao Vassudev Prabhu Dessai Deshprabhu alias Raghuraj Deshprabhu and is being prosecuted by his legal heirs, who are appellants in the four appeals before this Court. Other Special Civil Suits were filed by respondent Rajendra in these appeals. Rajendra had also filed First Appeal No. 73/1994 aggrieved by part of adjudication in Special Civil Suit No. 499/87/A. All the civil suits were consolidated vide Order dated 15.3.1991. Raghunath died during the pendency of the special civil suit filed by him on 10.11.1987.
The relationship between the parties is not in dispute. Atmaram Vassudev Porobo Dessai Deshprabhu, Viscount of Pernem happened to be the grand father of Raghuraj, as also Rajendra. Vassudev son of Atmaram was their father. Vassudev was only son of Atmaram and during the life time of Atmaram, Raghuraj was only male child of Vassudev, i.e. only grand son of Atmaram. Atmaram executed Deeds of Gift dated 29.1.1925, 17.1.1927 and 20.6.1929, gifting several properties to his son Vassudev, but then granted him only limited right, that is life interest and obliging him to transmit those properties in favour of Raghuraj after his death. Atmaram also made a Will dated 22.5.1933, bequeathing certain properties to Raghuraj and again appointing Vassudev as Trustee. As per the said Will, the palace and interlinked old house was given to Raghuraj. On death of Atmaram Deshprabhu, inventory proceedings bearing No. 194/1933 were initiated in the Court of Civil Judge, Sr. Division, Mapusa and Raghuraj was declared as interested party in those proceedings. As Raghuraj was then minor, he was represented by his father Vassudev. The defendant in the suit filed by Raghuraj and plaintiff in other suit, Rajendra is the second son of Vassudev and he was born after death of Atmaram. On 06.12.1956, Vassudev renounced all his right in favour of Raghuraj by executing a Deed of Renunciation and Exchange. Certain properties were exchanged between Raghuraj and Rajendra vide that Deed. Raghuraj, his parents and Rajendra lived in the residential house (palace) till death of Vassudev in 1962. It was the case of Raghuraj that after death of Vassudev, by virtue of Will he became the absolute owner of palace, guest house, other structures along with appurtenances of this property and he was in possession of the suit property along with the household articles and antique items kept in Devghar and Museum. He stated that he was looking after all these properties exclusively and he also constructed a road by spending Rs. 50,000/-. Rajendra was staying with him with his consent and due to cordial relations he was also permitted to have one set of keys of family worship room. Taking undue advantage of this permission, Rajendra surreptitiously inserted his name as occupant in revenue records i.e. in Form No. I & XIV of the residential house. He also described various gold and silver articles used for pooja and decorations and stated that the same were kept in a small room annexed to worship room. Raghuraj complained that he could not have access to that small room where gold and silver articles were kept till said worship room was opened. He also stated that there was museum on first floor which displayed various valuable articles and antiques. On 21.5.1986, he noticed that a number of those articles were missing and he then requested Shri Vishwanath Thakur alias Dada Thakur to find out from Rajendra whether he had removed those articles. On 29.5.1986 Rajendra refused to hand over keys to Raghuraj and did not open the doors of worship room. Plaintiff Raghuraj then forwarded registered letter dated 31.5.1986 and enclosed with it list of articles missing from the museum. Ultimately, the defendant claimed that articles kept in museum were gifted to him and many articles were kept by defendant Rajendra himself in that museum for display. The plaintiff, therefore, claimed declaration for possession of articles and for injunction to restore all articles removed by Rajendra. He also sought permanent injunction restraining Rajendra from closing door which gave access to Raghuraj to a room known as "Makharachi Kudd" and to restore all museum articles.
In his written statement, Rajendra stated that residential house was not belonging to Raghuraj, but belonged to him. He further stated that Raghuraj himself gave better particulars in civil revision application filed before the High Court at Panaji Bench stating that the suit property was described under Item No. 259 in the inventory proceedings and was located in the third plot of "Gorbatulem Nague Porobo Miraxy" (hereinafter, referred to as "Miraxi") described in the Land Registration Office under No. 25340. He stated that by a Deed of Exchange dated 6.12.1956, the same property came to him. By way of counter-claim, Rajendra sought to restrain Raghuraj, his family members etc., from interfering with House No. 844 or causing any obstruction in entering the house from the main door.
Rajendra Deshprabhu filed Special Civil Suit No. 420/86/A in relation to the palace, claiming its ownership exclusive, enjoyment and possession. He stated that halls and rooms, i.e. some part of palace was in possession of Raghuraj. He stated that room known as "Devghar" was being enjoyed by the plaintiff and the defendants in common. In April, 1986, Raghuraj obstructed Rajendra from going to Devghar to perform pooja and also closed doors of the portion occupied by them, including of the room known as "Agochi Kudd", adjacent to Devghar between 10.8.1986 to 29.8.1986. The said Raghuraj and his family members forcibly entered in the room Agochi Kudd and trespassed into other rooms on first floor and closed the main gate which provided access to the suit property and kept one watchman at the gate. Rajendra, therefore, sought mandatory injunction directing Raghuraj and his family members to remove the latch and lock obstructing the access to Devghar and to hand over possession of Agochi Kudd. He also sought permanent injunction restraining them, in any way, from interfering with his free access. In this suit, Jitendra, son of Raghuraj took a plea that the palace situated in the property known as "Tillachem Bhatulem and Mouli Somnath" gifted to him by his grand father on 20.6.1929. The residential house was registered in the Land Registration Office under No. 1310 and the house itself had No. 67 of house records. The property belonged exclusively to Raghuraj. After death of Vassudev in 1962, Rajendra started staying separately and occupied its portion for his residence. The remaining portion of the house and appurtenances were enjoyed and possessed by Raghuraj till his death. Jitendra denied plea of exclusive possession of Rajendra and stated that first floor was always in possession of Raghuraj. He also stated that Raghuraj allowed Rajendra to occupy some portion on ground floor. He denied the allegation of trespass.
The third Special Civil Suit No. 16/1987/A was filed by Rajendra against Raghuraj and his family members to restore the movable items and hand over possession thereof. This pertains to various articles in museum located on the first floor of palace and in the month of June, 1986 and July, 1986, in the absence of Rajendra, Raghuraj trespassed into the museum and removed padlock on 17.7.1986, Rajendra replaced the lock removed by Raghuraj. But again in the absence of Rajendra in the month of August, Raghuraj forcibly broke open the door located between Shastra Pooja room and took possession of that room. After taking this possession, Raghuraj filed Special Civil Suit No. 416/86/A contending that he was in possession of museum. Raghuraj denied all these allegations in the written statement and reiterated his earlier stand that Rajendra removed the antiques and valuables.
The fourth suit bearing Special Civil Suit No. 499/1987/A came to the filed by Rajendra for declaration of his exclusive ownership and possession of the property known as "Miraxy", property known as "Gorbhatulem Nague Porobo Miraxy" described in the Land Registration Office under No. 2197 (old), 33930 and 33931 and the property known as "Ghorbhatulem Nanerkar" (Nanerkar-hereafter) described in the Land Registration Office under No. 3408, 339960, 34099 and 34090. He also sought declaration that the property under Survey No. 474, sub-divisions No. 1 to 22 did not belong to Raghuraj and sought vacant possession of the guest house and other structures, with articles therein. He also sought injunction to restrain the defendants from interfering with his possession and enjoyment. In the written statement, Jitendra son of Raghuraj challenged this claim and stated that the entire area comprised in sub-division Nos. 5 to 22 of Survey No. 474 was surrounded by big masonry wall which had two gates. He gave description of the property and stated that the residential house and the appurtenances surveyed under No. 474/11 to 13 and 15 to 21 were designatories of Tillachem Bhatulem and Mouli Somnath. He further contended that same stood on the lands which formed parts of the property Tillachem Bhatulem and Mouli Somnath. He referred to the Deed dated 20.6.1929 and inventory proceedings. He alleged that in the inventory proceedings because of some mistake or confusion, Vassudev erroneously clubbed the said house with undivided 1/3rd part of the property Miraxy described under Item No. 259 though the said house had got nothing to do with Miraxy. Vassudev then corrected the mistake by getting the said house enrolled in Matriz Predial under No. 1310 and house No. 67 of house records.
Jitendra explained this in his written statement with contention that Raghuraj himself narrated this correction in his application dated 9.4.1987 while supplying better particulars in Civil Revision Application No. 26/87 before this High Court. He, however, added that due to original confusion Matriz No. 1310 was taken as referring to Miraxy. He further stated that appurtenances of this residential house were in its front as mentioned in the record of rights under sub-division Nos. 11 to 13 and 15 to 21 of Survey No. 474 with designation "Tillachem Bhatulem" and "Gharbhatulem Nague Parab". He, however, added that all of them stand in Tillachem Bhatulem. The structure shown in sub-division 12 was constructed in the third part of Tillachem Bhatulem, gifted to the Raghuraj by Viscount Atmaram. This third plot is registered in Matriz under Nos. 252 and 260 which expressly refers to guest house i.e. Casa Para Hospedes. Other appurtenances in sub-division Nos. 15, 16, 17 and 20 are located in third property "Tillachem Bhatulem" also belonged to Raghuraj. Subdivisions 1 to 9 of Survey No. 474, according to Jitendra have been shown in Form I & XIV under the name "Gharbatulem Nague Parab" and sub-divisions 10 to 21 under the name "Tillachem Bhatulem and Gharbhat Nague Parab". He clarified that third plot "Miraxy" is in no way concerned with the suit property and the suit property has got no bearing on any sub-division as stated in para 3(a) of the plaint. He has then stated about the three gifts, limited right of life, given to Vassudev by Atmaram, inventory proceedings and clubbing of palace and guest house in Item No. 259 as an obvious mistake. Thereafter, he has pointed Exchange Deed dated 6.12.1956 and also stated that only third part of "Miraxy" described under No. 25340 with Land Registration Office was exchanged. In other words, he stated that neither palace, nor guest house formed subject matter of this exchange deed. He further pointed out that Vassudev had right to live in the palace during his life time and he resided there accordingly till 1962. Jitendra and other legal heirs of Raghuraj, therefore, claimed that they are exclusive owners of the palace, its appurtenances and also guest house and sought direction to Rajendra to give vacant possession to them.
In the face of these pleadings, the trial Court framed issues separately in these suits and those issues as framed in Special Civil Suit No. 416/86/A are as under:
Whether the plaintiff proves that the defendant has no right to the Museum?
Whether the plaintiff proves that the plaintiff is entitled to recover the articles of Annexure B?
Whether the plaintiff proves that the defendant is bound to open the worship room whenever required by the plaintiff?
Whether the defendant proves that the suit property where residential house exists belongs to the defendant alone?
What relief? What Order?
The issues framed in Special Civil Suit No. 426/86/A are as under:
Whether the plaintiff proves that the plaintiff is entitled for the removal of the Latch and Lock to the DEVGHAR?
Whether the plaintiff proves that the plaintiff is entitled to recover the possession of Ago-Chi-Kudd and the adjoining hall?
Whether the defendants prove that the suit property where residential house is located belongs exclusively to the said Raghuraj?
What relief? What Order?
The issues framed in Special Civil Suit No. 16/87/A are as under:
Whether the plaintiff proves that they are the owners of the Museum along with Museum objects?
Whether the plaintiff proves that the plaintiff has been wrongfully dispossessed?
Whether the defendants prove that the suit is liable to be stayed?
What relief? What Order?
The issues framed in Special Civil Suit No. 499/87/A are as under:
Whether the plaintiffs prove that the properties mentioned in paras 3(a) to 3(d) correspond to the respective sub-divisions of the suit property?
Whether the plaintiffs prove that they are exclusive owners of the suit property surveyed under No. 474 sub-divisions 1 to 12 and 14 to 22 and the defendants occupation of portion of the residential house under survey No. 474/10 is permissive?
Whether the plaintiffs prove that sub-divisions No. 13 of Survey No. 474 which is the family guest house is located in the properties of the plaintiff No. 1 described under Nos. 34099 and 34090 and the plaintiffs are the exclusive owners of the properties and the guest house constructed thereon?
Whether the plaintiffs prove that the defendants are trying to obstruct the plaintiffs from enjoying the ancestral residential house including the part under the occupation of the plaintiffs?
Whether the plaintiffs prove that Raghuraj took forcible possession of the guest house in June, 1986?
Whether the plaintiffs prove that Raghuraj removed items, furniture and fixtures existing in the said guest house and that the same items belong exclusively to the plaintiffs?
Whether the defendants prove that the residential house now surveyed under subdivision 10 of survey No. 474 stands on lands belonging to two adjoining properties viz. TILLACHEM BATULEM and MOLLI SOMNATH and that the same has nothing to do with the property described under No. 25340?
Whether the defendants prove that the appurtenances to the residential house lying in front of the same and shown under subdivision Nos. 11 to 13 and 15 to 21 of Survey No. 474 stand on lands which are parts of TILLACHEM BHATLEM?
Whether the defendants prove that they are the exclusive owners of the residential house and all the appurtenances thereto and the plaintiffs'' occupation of a part of the residential house is permissive?
To what relief, if any are the plaintiffs entitled?
In its Judgment, the learned Civil Judge, Sr. Division, Mapusa has recorded that common issue in all 4 suits was "Whether Raghuraj and his legal representatives prove that they are exclusive owners in possession of the residential house, museum, guest house and other structures along with appurtenances or whether Rajendra Deshprabhu is exclusive owner in possession of the said structures?" It also stated that the second issue was "Whether the said Raghuraj is entitled to get vacant possession of the residential house along with other items from Rajendra Deshprabhu or whether Rajendra Deshprabhu is entitled to evict Raghuraj and his family from the residential house, Museum, guest house and other structures along with items?"
In Special Civil Suit No. 416/1986, seven witnesses were examined on behalf of Raghuraj, plaintiff therein. Prezeres Gonsalves PW.6 examined therein is the Surveyor. Defendant Rajendra examined himself and 11 witnesses. DW.12 Purushottam Dalvi is his surveyor. After recording of this evidence, by Order dated 15.3.1991, all the four suits were ordered to be consolidated and common evidence was led therein. Rajendra examined himself as PW.1 and 10 other witnesses after consolidation. While the defendants in other 4 suits i.e. legal heirs of Raghuraj chose to examine Jitendra as DW.1 and Commissioner Advocate V.B. Thali as DW.2 in their defence. After appreciating the said evidence and hearing arguments, the trial Court decreed partly Special Civil Suits No. 420/86/A, 16/1987/A and 499/1987/A, holding Rajendra to be the exclusive owner in possession of the palace, guest house and other structures situated inside the compound as described in the Deed of Renunciation and Exchange dated 6.12.1956. It further held that the items kept in museum, Devghar, Macharachi Kudd and Agochi Kudd, the palace and the guest house jointly belonged to families of Raghuraj and Rajendra along with other legal heirs. It directed to restore those items in possession of Rajendra''s and Raghuraj''s family in the residential house and the guest house. It directed Raghuraj and his family to vacate the residential house, guest house and other structures within six months from the date of its Judgment. It, therefore, dismissed Special Civil Suit No. 416/1986/A filed by Raghuraj and counter claims of legal heirs of Raghuraj in other suits. However, it did not grant costs of litigation to anybody.
In this background, we have heard learned Senior Advocate Mr. M.B. D''Costa with Mr. J.A. Lobo for the legal heirs of Raghuraj Deshprabhu and Senior Advocate Mr. V.B. Nadkarni, with Mr. M.S. Sonak, for the legal heirs of Rajendra Deshprabhu.
Learned Counsel for the appellant has mentioned that Atmaram was not pleased with Vassudev and, therefore, he made over title of Viscont to his grand son Raghuraj and also valuable immovable properties like palace and guest house with all moveables/contents thereof were also gifted to Raghuraj. Vassudev was only given life interest with obligation to pass on title to Raghuraj on his death. Vassudev, therefore, had reason to play some mischief and to deprive Raghuraj of suit properties. He invites attention to evidence on record to show that all guests visiting the family and museum were entertained by Raghuraj only. He argues that Raghuraj being Viscont was known to receive guests and, therefore, it was but natural to make over the palace and guest house to him. Because of his illwill or then out of sheer confusion Vassudev added suit properties to Miraxi in the inventory proceedings while describing item No. 259 and then in 1956 while renouncing his rights and at the time of execution of Deed of Renunciation and exchange he gave item No. 259 to Rajendra by including it as Item No. 87 in that document. He argues that the palace and the guest house, in fact, do not form part of the said document dated 6.12.1956. He has further invited attention to the pleadings of parties and evidence on record to contend that validity of 3 gifts, and the Will is not in dispute. Only question is whether palace and guest house are located in Miraxi so as to justify their clubbing with it in item No. 259. He invites attention to the fact that in the Deed of Exchange item No. 87 is valued at Rs. 10/-only, while in the inventory proceedings, item No. 259 is valued at Rs. 15,000/-because it included the suit properties. In this background, he contends that the issue could not have been resolved by looking into the evidence of either Jitendra, son of Raghuraj or Rajendra or other witnesses. According to him, technical evidence of surveyors was important and he has invited attention to evidence of Shri Dalvi examined by Rajendra as his surveyor to show how Shri Dalvi has misconducted the proceedings and ignored boundaries mentioned in the document to enable him to reach his predetermined findings about location of said properties. He invites attention to document Exhibit P-22 to show that Tillachem Bhatulem has been recorded as urban property and it contained palace as also the guest house. He, in order to demonstrate bias of Shri Dalvi, invites attention to certain other aspects to which we find it convenient to make reference while considering the evidence of Shri Dalvi.
He has, in this connection, invited attention to the plan drawn by Prezeres Gonsalves, Surveyor engaged by Raghuraj. He has also shown how the said expert has considered the documents on record and arrived at conclusion that the palace and the guest house are situated in Tillachem Bhatulem and Mouli Somnath. According to him, the learned trial Court has erroneously ignored the evidence of said witness merely because he was not knowing Portuguese and by placing reliance upon old adjudication in relation to a private road, though Raghuraj was not a party to that private litigation. In support of his contention, he has taken the Court through various documents on record. He has contended that there is no admission of any fact by Jitendra and the portion read as admission by the learned Trial is, in fact, a mere acceptance of the fact that the documents contained particular statement. According to him, this explanation does not mean that truth of what those documents disclosed was accepted by Jitendra. He states that it was specific case of Rajendra that guest house and palace could not have been in Tillachem Bhatulem and Mouli Somnath, because both these properties were purchased by family in 1905 or 1902. He invites attention to evidence in this respect to show that what was purchased was only part of these properties and remaining part of these properties was always belonging to and in possession of family of Raghuraj.
The trial Court has misdirected its entire inquiry by placing burden of proof upon Raghuraj and learned Senior Advocate states that burden was in fact upon Rajendra as Rajendra had filed the suit for declaration and possession. He contends that the suit filed by Raghuraj vide Special Civil Suit No. 416/1986 was for limited purpose and as per issues framed in various suits, burden was upon Rajendra to show that suit properties were located in Miraxi or Nanerkar and not in Tillachem Bhatulem and Mouli Somnath. In order to show that there were no admissions, but only qualified acceptance of contents of the documents, he has invited our attention to the Judgment of the Hon''ble Apex Court in Razia Begum Vs. Sahebzadi Anwar Begum and Others, and further argues that inspite of admission Court can insist for formal proof. He places reliance upon the Judgment of the Hon''ble Apex Court in Divisional Manager, United India Insurance Co. Ltd. and Another Vs. Samir Chandra Chaudhary, for said purpose. He contends that when both parties are found to be entitled to movables by the trial Court, giving the suit properties only to Rajendra is an inconsistent finding which cannot be sustained. He further states that Raghuraj being Viscont was always staying at Goa and, therefore, was in possession of the guest house and palace, while Rajendra was always away from Goa, and was staying at Bombay. He, therefore, prays that the appeals filed by the legal heirs of Raghuraj need to be allowed and the appeal filed by Rajendra needs to be dismissed.
Advocate De Costa has further argued that the direction given by the trial Court to restore the movables and other articles to suit properties and to distribute the same between families of Raghuraj and Rajendra cannot be sustained and appeal filed by Rajendra against that part needs to be dismissed. He contends that the trial Court has found that the parties were in joint possession of the suit properties and hence, movables of Raghuraj also existed in the suit property. There is no finding recorded on movables and other articles not covered by inventory proceedings and hence, for determination of that aspect matter needs to be remanded back to trial Court.
Learned Senior Advocate Nadkarni for heirs of Rajendra has contended that the movables have to go to the persons found entitled to palace and guest house. He invited attention to para 14 of the plaint filed by Raghuraj himself in Special Civil Suit No. 416/86 and points out that the said properties have always been understood to comprehend within themselves the movables and other articles lying inside it. He further points out that some movable properties have been dealt with in the inventory proceedings and those not dealt with have to go with immovable properties. It is, therefore, prayed that First Appeal No. 73/94 filed by deceased Rajendra needs to be allowed.
He has invited attention to previous history i.e. filing of first suit by Raghuraj and how immovable property has not been described therein though warranted by provisions of Order 7, Rule 3 C.P.C. He further invited attention to application for better particulars moved therein by Rajendra and family and how better particulars were furnished before this High Court on 9.4.1987 in Civil Revision Application filed by Rajendra. He invites attention to written statement filed on behalf of the legal heirs of Raghuraj on 12.4.1988 in Special Civil Suit No. 499/87 to show how they later on had come up with a case of correction of error by Vassudev. He points out that as per better particulars furnished the suit properties have been traced to Miraxi only and invited attention to matriz document for that purpose. He contends that this position on record shows admission on behalf of the deceased Raghuraj and the said pleadings are binding on his legal heirs also. He relies upon Judgment of the Hon''ble Apex Court in Basant Singh Vs. Janki Singh and Others, in support thereof.
Thereafter, learned Senior Advocate has invited attention to deposition of Rajendra recorded in Special Civil Suit No. 416/1986 and particularly his cross examination dated 15.4.1989 to urge that the inventory proceedings and the Deed of Renunciation and Exchange dated 4.12.1956 have been accepted by Jitendra. He states that the trial Court has recorded these admissions of Jitendra. According to him, said admissions given in one suit can be used in another suit also and he places reliance upon judgment of the Hon''ble Apex Court in Thiru John Vs. The Returning Officer and Others, particularly para 15. He further points out that in 1975 there was partition amongst heirs of Raghuraj and Tillachem Bhatulem fell to share of Jitendra, while Mouli Somnath failed to share of wife of Raghuraj and hence in 1986 Raghuraj was not owner of these properties. He also points out that all these properties formed subject- matter of the inventory proceedings and hence, the alleged theory of erroneous addition of the said property to Miraxi is unsustainable and also irrelevant in the present facts. He points out that in Item No. 259 Miraxi has been valued at Rs. 15000/-while all 3 parts of Tillachem Bhatulem have been valued at Rs. 300/-and Mouli Somnath has been valued at Rs. 300/-. Property Miraxi contained palace and, therefore, its valuation has been Rs. 15,000/-. He further points out that the guest house was constructed in 1896 itself and as such, it could not have been constructed in the properties purchased by family either in 1902 or in 1905.
He further points out that in Special Civil Suit No. 499/1987 which came to be filed after filing of better particulars, Jitendra and other heirs of Raghuraj filed counter-claim and sought declaration of location of suit properties in Tillachem Bhatulem and Mouli Somnath and also sought declaration of their title and possession thereof. According to him, ultimately, all the four suits have been tried together. The issue of burden was not that relevant as parties have brought on record all necessary material. In any case, as it was pleaded that there was mistake by Vassudev, the burden was upon Raghuraj to prove such mistake. He further states that pleadings in this respect are not sufficient to even infer any mischief, fraud or misrepresentation by Vassudev and ultimately parties are governed by Deed of Renunciation and Exchange dated 4.12.1956. As validity of the said document has not been challenged on any ground, the reliefs as sought for by Raghuraj or the legal heirs cannot be granted. 19. He has invited attention to the evidence of Surveyor Shri Dalvi to show how his evidence is more convincing than the evidence of Surveyor Shri Gonsalves examined by Raghuraj. He points out that Rajendra also examined 3 persons residing, admittedly, in the field known as "Nanekar". Those witnesses have spoken of a private road which divided property Nanerkar into two parts. He has invited attention to various documents to show how while describing boundaries in the description of Land Registration Office there was an error and the properties situated on east and west sides were exchanged. He states that the guest house mentioned in Exhibit P-22 filed by Jitendra does not refer to the guest house is involved in the suit and the said guest house is, admittedly, in Tillachem Bhatulem. According to him, story of mistake made by Vassudev as alleged is clearly by way of afterthought. He points out that Viscont Atmaram was never against Vassudev and invites attention to Will made by Vassudev for the said purpose. He further states that Rajendra was not even born when inventory proceedings, after death of Atmaram, were completed and, therefore, Vassudev at that time had no reason to play any mischief, as alleged.
Our attention has been invite to evidence of Surveyor Gonsalves to show that how plan drawn by him ignores old documents and also 1938 Court litigation. Learned Senior Advocate states that Surveyor Shri Dalvi has shown the palace in Miraxi by accepting description in inventory proceedings to be correct and Surveyor Shri Gonsalves has not considered said old records or even the condition prevailing on spot while actually drawing the map. He points out how boundaries have not been properly shown by Shri Gonsalves. He states that the documents in Portuguese were provided to Shri Gonsalves and as Gonsalves did not understand Portuguese, English translation thereof was given to him by Raghuraj. That translation is not on record and its correctness has not been verified. He, therefore, states that evidence of Shri Gonsalves cannot be looked into at all. He further points out that evidence of Rajendra, in so far as material aspects are concerned, is gone unchallenged and the Court orders dated 28.1.1970 or then earlier orders recording compromise in relation to the private road in field Nanerkar need to be given their due importance, as at that time there was no dispute between the parties. Evidence of Gonsalves is attacked by pointing out that he had considered two old documents of period prior to 1938 and still road constructed by Vassudeo in 1938 finds place in his plan. It is stated that Rajendra had not to show that Vassudeo did not commit any mistake, but he examined three witnesses residing at neighbourhood to explain the situation long prevailing and Jitendra, on whom the burden rested, did not examine anybody. Evidence of Parshuram, Jayant and Sharadchandra examined by Rajendra is being heavily relied upon to urge that it has remained unshaken. It is further stated that Jitendra has not brought on record any evidence to show when Tillachem Bhatulem came to family and his evidence on completion of construction of guest house in 1896 shows falsehood in his stand. Some arguments about presence of public road on southern side of Tillachem Bhatulem or then on its western side are also advanced to criticize the plan of Gonsalves. Rajgopal (Dead) by Lrs. Vs. Kishan Gopal and Another, is pressed into service to show how evidence without pleadings is to be treated and attention is also invited to Sanjay Chandrakant Mehta Vs. Malaben Sanjay Mehta, Coming to 1956 exchange, learned Senior Advocate urges that there is no challenge to it and, in any case, no direct pleadings or prayer for its cancellation or rectification.
Following issues therefore do arise for our consideration in these connected Appeals:
(i) Whether heirs of Raghunath prove that there was any error in item No. 259 in inventory proceedings at the hands of Vassudeo by clubbing Palace & Guest House as part of landed property Gharbhatule Nague Porob Miraxi?
(ii) Whether they prove that suit properties i.e. Palace & Guest House are situated in Tillachem Bhatulem or Mouli Somnath and not in Miraxi?
(iii) Whether the said error has got any bearing on exchange of properties as undertaken in 4/12/1956 document of deed of renunciation & exchange?
(iv) Whether judgment & decree of trial court to apportion movables or articles in suit properties between parties is sustainable?
Parties accept that survey No. 474/10 is Palace, while survey No. 474/13 is Guest house. According to Jitendra or Raghuraj both these properties are located in Tillachem Bhatulem and Mouli Somnath while according to Rajendra the same are in Miraxi i.e. Ghorbatulem Nage Porab Miraxi. Most of the arguments of the parties are to demonstrate this aspect one way or the other. Only in F.A. 73 of 1994 Rajendra has questioned the propriety of dividing the movable properties equally between himself and legal heirs of Raghuraj contending that same must go as part of either the Palace or the Guest house to the party found entitled to the same. And as he is found entitled to both, all movables therein must come to him.
Description of the Palace and the Guest house finds mention in the plaint filed on 5/12/1987 by Rajendra vide Special Civil Suit No. 499/1986/A. In paragraph 2 Rajendra has stated that residential ancestral house and guest house are situated in survey No. 474 with sub-divisions 1 to 22. 3rd adicao or plot in Miraxi described in Land Registration Office with No. 25340 is corresponding to sub-division No. 1 to 10(part) & 14. The ancestral residential house is in sub-division No. 10 described under said No. 25340. Property described in Land Registration Office under No. 33931 is stated to include part of subdivision 10, subdivision No. 11�being an outhouse, sub-division No. 12 �being a garage and part of sub-division No. 13, Guest house is stated to be in part of subdivision No. 13. Raghuraj had expired on 10/11/1987 i.e. prior to institution of this suit and written statement filed by legal heirs of Raghuraj on 12/4/1988 therein also contains a counterclaim. They state that residential house stood surveyed under 474/10 designated as Tillachem Bhatulem & Miraxi. However, as a fact, according to them it stood on lands of adjacent properties known as Tillachem Bhatulem & Mouli Somnath gifted to Raghuraj by his grandfather Viscount Atmaram on 20/6/1929 itself. In inventory proceedings conducted by Vassudeo after death of Atmaram, by some mistake or confusion said house was erroneously clubbed with undivided 1/3rd portion of Miraxi in item No. 259. They have also pleaded that Vassudeo himself corrected this mistake and got this house entered in matriz predial records with Taluka Revenue Office under No. 1310 and house itself under No. 67.
But then due to same confusion Raghuraj also took matriz No. 1310 as referring to Miraxi. It is also pleaded by them that Vassudeo himself had by correcting the error snapped erroneous connection made in item No. 259 between residential house and 1/3rd share in Miraxi. Appurtenances in front of residential house lying in its front are shown in record of rights under sub-division Nos. 11 to 13 and 15 to 21 of survey No. 474 with same wrong designation when in fact they are parts of Tillachem Bhatulem. They state that structure shown in subdivision 12 was constructed by Raghuraj in 1961 as garage. House in sub-division No. 13 of survey No. 474 was constructed in 3rd part of Tillachem Bhatulem gifted by Atmaram to Raghuraj on 20/6/1929. Said 3rd plot is registered in matriz No. 252 & 260 with express reference to guest house i.e. Cesa Para Hospedes. Other appurtenances shown in sub-division No. 15,16,17 & 20 of survey No. 474 are located in Tillachem Bhatulem. They have also pleaded that sub-divisions 1 to 9 of survey No. 474 are shown in form No. I & XIV of land records under name Gharbatule Nage Parab while sub-division Nos. 10 to 22 are shown in said forms under name Tillachem Bhatulem & Gharbatule Nage Parab.
This written statement also contains a counterclaim for declaration that said residential house surveyed under sub-division 10 of survey No. 474 stands on lands which are part of Tillachem Bhatulem and for vacant possession of its part in permissive possession of Rajendra. Similar relief of declaration is also claimed in relation to Guest house. In his reply to this counterclaim, Rajendra has stated that first part of Tillachem Bhatulem is paddy field described under No. 29627 surveyed under No. 475, subdivisions 12, 13 and 15. Said property No. 34793 surveyed under said No. 475 subdivisions 8, 9 & 10 is inscribed in the name of Rajendra and is acquired by him in public auction. Similar defence is there in relation to property No. 29628 & 29647. About Mouli Somnath, Rajendra has stated that it is described under No. 5239 in land registration office and is surveyed under various subdivisions of survey No. 473. He maintained that all these properties are separate and distinct from suit property.
Appellants in 4 Appeals have heavily relied on evidence of their surveyor Gonsalves to show that suit property is not situated within Miraxi but in Tillachem Bhatulem while Rajendra relies upon evidence of his surveyor Dalvi to substantiate his plea that suit property is in Miraxi and also on alleged admissions of Raghunath in this respect. It is the stand of heirs of deceased Raghuraj that there are no admissions and in any case, the admissions cannot be determinative as the ascertainment of exact location depends upon evaluation of technical evidence of experts. However in present facts the old understanding thereabout as revealed in contemporaneous documents cannot be ignored or brushed aside easily. But then, we find it proper to consider the evidence of two experts first.
27 We first consider the evidence of expert Shri Dalvi examined by Rajendra. He is DW.12 in Special Civil Suit No. 416/86/A and plan drawn by him is at Exh. DW.12/A . Main objection to his deposition is on the ground that he mentions Palace i.e. residential house in Miraxi only because it is so recorded in inventory proceedings. He upon comparison of boundaries of described in inventory proceedings and of boundaries described under No. 25340 found that boundaries on north, west & south tally with each other. On location he found that road and Tillachem Bhatulem are on eastern side, while property Hari Vinay Porob was on western side. As per description of property No. 25340, property Hari Vinay Porob itself was shown on both these sides. He further stated that survey No. 474/10 fell in 3rd adicao of Miraxi. He stated that as per inscription certificate given by Taluka Revenue Office suit house was in Miraxi, 3rd adicao. He also claimed to have identified the property Tillachem Batulem located at some distance from suit house and stated that between the two there was a road. He stated that Tillachem Bhatulem was at lower level and was surveyed under Survey No. 475 & 476. In cross examination he accepted that in inventory proceedings exh.P12 item No. 259 there was no reference to Tillachem Bhatulem or Mouli Somnath. He accepted that property Hari Vinay Porob & Bhatulem Raule Porob were shown as western boundary of item No. 259 in exh.P12. He accepted that item No. 259 did not mention 3rd adicao of Miraxi. He also stated that as per item 259, Miraxi was bounded on east by Fondochem & Bhatule Raule Porobo, on east by first part of same property, on south by Dulapem and on north by Nallah. Said witness also accepted that property shown as eastern boundary in item No. 259 is shown as western boundary in description 25340 and vice versa. North, west and south boundaries on spot matched with boundaries in registration office under No. 25340 at exh. P21 and hence boundaries given in exh. P21 were correct. He stated that property known as Ghorbhatule Nage Porob Nanerkar shown in his plan on southern side was also locally known as Dulapem and it was revealed in local inquiries made by him during inspection. We have referred to this property as Nanerkar for short. However, he could not disclose the names of persons with whom he made that enquiry. He also accepted that he did not make inquiry whether any other property was described under name Dulapem in land registration office. He denied that property Dulapem on southern boundary of 25340 was described in land registration office under Nos. 34052 & 25337.When document exh. Dw.12/P1 was shown to him he accepted that these properties were paddy field by name Dulapem. He accepted that property 25340 is bounded on south by Dulapem which is also a paddy field. He denied that it was necessary to locate properties surrounding the subject property to locate the subject property. He stated that he had located Dulapem. He denied that Dulapem was surveyed under No. 442/14. He accepted that he did not show Nallah as northern boundary of survey No. 474/10. He stated that property Bhatule Raule Porobo & Fondochem were same and he showed them in plan with name Hari Vinay Porobo. But in next breath he accepted that he did not show Fondochem in plan and he was not aware of its survey number. When document Exh. P29-D was shown to him he accepted that it was matriz certificate of Fondochem and did not pertain to Miraxi. He stated that said Exh.P29-D gave description of 3rd division of Miraxi under No. 1283 and on southern boundary paddy field Dhulapem was shown. He could not say anything to suggestion that property Fondochem under matriz No. 278 in Exh. P29-D was shown as western boundary of survey No. 25340. He accepted that as per description in land registration office of No. 29566, Ghorbhatule Nanekar did not touch property Pradhanachi Falli or any of its boundaries. He stated that he located property 29566 as touching Tillachem Bhatulem in his plan. He accepted that in description of 29566 there is no road mentioned as passing in between it as shown by him in his plan.
Surveyor Dalvi also stated that there was guest house in 3rd division of Tillachem Bhatulem. However he denied that it was survey No. 474/13. Land registration certificate No. 29628 was in relation to 3rd division of Tillachem Bhatulem and he accepted that its boundaries tallied with boundaries of survey No. 474/13 and matriz urban inscription No. 260. He denied that all 4 subdivisions of Tillachem Bhatulem included survey Nos. 474/10 to 22. He accepted that in form No. I & XIV the name of this property was given as Tillachem Bhatulem but added that it is also given as Ghorbhatulem Nagesh Porobo.
Thus, so far as Palace is concerned Dalvi has not shown Dhulapem on south and his claim that Ghorbhatule Nage Porob Nanerkar shown in his plan on southern side was also locally known as Dulapem is proved to be incorrect. He has not shown any drain or Nalla on north. He did not show Fondochem on east. Instead of showing first part of Miraxi on west shows property Hari Vinay Porobo. He shows a road & then Tillachem Bhatulem on eastern side. His evidence also shows that one guest house is in survey No. 474/13 which is 3rd division of Tillachem Bhatulem. Dulapem is a paddy field on southern side of palace and guest house is not in it. Evidence of this witness, therefore, cannot be accepted.
This brings us to the consideration of evidence of Gonsalves, the other surveyor. He also states that house property bears survey No. 474/10. He claims to have inspected said survey No. 474/10 with all its sub-divisions as also survey Nos. 475, 476, 446, 429, 485, 478, 479 & 484. Matriz records and land registration records in Portuguese language were given to him and as he did not understand that language, its translations were also supplied to him by Raghuraj. He checked boundaries from title documents. Miraxi had 4 additions. He found residential house i.e. Palace in 4th addition of Tillachem Bhatulem and Mouli Somnath. This 4th addition consisted of survey Nos. 474/10(part), 474/11, 474/5(part), 476/12, 475/1 to 3. (It was never the case of Jitendra that any part of Palace was in Mouli Somnath.) Mouli Somnath covered by residential house bears survey No. 474/10(part), 474/6 to 9. He placed the Guest house in 3rd addition of Tillachem Bhatulem which consisted of survey Nos. 474/13, 12 & 22, 476/2, 3 & 10, 475/4 to 8. He found 3rd addition of Miraxi i.e. land registration No. 25340 consisting of survey Nos. 446/1, 4 to 8. He declared that said 3rd addition had no connection with residential house. In cross examination he stated that old documents considered by him in respect of Tillachem Bhatulem 4th addition were matriz No. 1446 & land registration No. 29647. He accepted that only western boundary of said 4th addition was Mouli Somnath. He stated that at the time of inspection there were two roads - one on north and one on south. He did not know when road on south was constructed and whether it was in 1934. He accepted that as per old documents seen by him Mouli Somnath was on west and not the houses as shown by him in his plan. He also accepted that old documents did not mention property Hari Vene Porobo as western boundary as shown in his plan on southwest side. He stated that he had not gone through partition documents filed at the time of inventory proceedings after death of Atmaram. He accepted Mouli Somnath has land registration No. 5239.
Mouli Somnath with land registration No. 5239 is item No. 250 in inventory proceedings. Item No. 250 mentions that it consisted of 3 additions and was bounded on east by Tillachem Bhatulem. Gonsalves has shown Mouli Somnath on north of Tillachem Bhatulem and has shown Hari Vene Porobo as also Raulo Porobo on western side. He has shown two roads, but one is on eastern side and other is on western side. This witness worked as surveyor & head surveyor for almost 21 years with Government and his answers clearly show that he did not explain the factual position correctly. It appears that he conducted the survey for his client with predetermined mind. Perusal of order passed on 28/1/1970 by Judicial Commissioner in Apealcao 301/1966 & 264/1967 i.e. in regular appeals against the judgment shows that the same arise out of suit No. 2 of 1960 filed by Rajendra against Municipality. In 1960 there was no dispute between Raghuraj & Rajendra and also Vassudeo was alive. Suit was for restraining municipality from interfering with his possession over road and not to damage it. The road is stated to be in Gharbhatule Nanercar. During its pendency, Rajendra was dispossessed of the road and hence he filed suit No. 3/1960 for recovery of its possession. It was found that a similar suit was instituted in 1936 by the plaintiff against municipality and in it a consent decree in favour of plaintiff was passed. Trial court held that said consent decree operated as res-judicata and decreed one of the suits. The Judicial Commissioner decreed both the suits. We are not concerned with niceties of the matter, but it shows that road in Gharbhatulem Nanerkar was very old road. The attempt of heirs of Raghuraj to get over this adjudication by contending that Raghuraj was not party to 1960 suits is not relevant at all as we are only concerned with fact that said road was in Gharbhatule Nanerkar. This witness Gonsalves has not shown any road in Gharbhatule Nanerkar. For all these reasons, we are not in position to accept his plan also.
Thus having found that both the surveyors cannot be relied upon, evidence led by parties in this respect needs to be perused. Before that certain admitted facts need mention. Gifts dated 29/01/1925 at Exh. P-24, dated 17/01/1927 at Exh. P-24 and dated 20/06/1929 at Exh. P-13 executed by deceased Atmaram in favour of Vassudeo giving him life estate and with obligation upon him that after him title would pass on to Raghuraj. These gifts dispose of portion of property which could have been legally dealt with by Atmaram and said portion is called as "disposable portion". The arrangement recognized as "fideicommissum" is supported by Article 1866 of the Portuguese Civil Procedure Code. These gifts or their legality is not in dispute between parties. Will dated 22/05/1933 at Exh.11 by Atmaram is also not in dispute. The fact as such of initiation of inventory proceedings upon death of Atmaram and fact of final order dated 12/11/1935 therein ratifying partition is also not in dispute. Item No. 259 in it and particularly correctness of inclusion of residential house in that item is the bone of contention. Deed of Renunciation & Exchange dated 06/12/1956 at exh. P-14, in so far as its execution is concerned, is again not in dispute. Item 87 therein is the relevant item which corresponds to inventory item 259. Transfer of residential house & guest house thereby to Rajendra is under challenge with stance that what goes to Rajendra in exchange is item No. 259 and not the residential house (palace) & guest house as adding these properties to item No. 259 was an error. In other words Raghuraj or his heirs contend that there was no intention to give in exchange the palace or the guest house to Rajendra. Raghuraj claimed that Rajendra was his licensee, while Rajendra claimed that he permitted Raghuraj to stay in part of Palace. During arguments in Appeals 67 to 70 of 1994 parties have only pointed out to us the depositions of parties themselves, two surveyors and 3 residents of Gharbhatule Nanerkar to substantiate their case while in Appeal No. 73/1994 only legal submissions have been made.
Rajendra in his deposition recorded in SCS 420/86 stated that suit was in respect of two properties i.e. Miraxi and Nanerkar. He states that Miraxi is bounded on east & north by public road and thereafter a drain, and on western & southern side by private road. He stated that said public road passes between Tillachem Bhatulem & Nanerkar. Private road constructed by Vassudeo in 1938 passes through Nanerkar. He also deposed about 1938 adjudication about it. He pointed out that properties Tillachem Bhatulem & Mouli Somnath were purchased by his grandfather in the year 1905 & 1902 while ancestral house was constructed in the years 1820 to 1822. In front of this ancestral house i.e. Palace exists another house called as "Bhailem Ghar" or Guest house. Guest house is in second property known as Nanerkar and it was constructed in year 1896. It is surveyed under No. 474/13. In cross examination he accepted that in inventory proceedings item No. 259 was valued at Rs. 15,000/. He also could not say whether land registration No. 25340 shows existence of any house therein and accepted that the document disclosed value of property to be Rs. 5/only. He also accepted that as per exchange deed the 1/3rd portion of property described under No. 25340 was given to him and it revealed price to be Rs. 10/-only. He denied that house was not in existence in said part. However, he accepted that 1/2 of the first part of property Mirashi is valued at Rs. 70/-in said document. But then, we find that further suggestion given to this witness washes off the effect of all this and only shows the confusion in mind of Raghuraj. Rajendra has answered that "It is not true to suggest that in the inventory proceeding item No. 259 its value Rs. 15000/-because the property described under No. 25340 was wrongly clubbed together with said residential house". This suggestion shows the case of Raghunath that a residential house already existed in item No. 259 and the Palace existed in registration No. 25340. He accepted that because of execution of deed of renunciation and exchange, user/occupation of suit house by parties was not affected in any way. He appears to have denied that properties Tillachem Bhatulem & Mouli Somnath were purchased by his grandfather in the year 1905 & 1902. He admitted that Tillachem Bhatulem was gifted to Raghuraj by gift deed dated 20/06/1929. He accepted that property Tillachem Bhatulem was recorded under matriz Nos. 252 & 260. Thus his version that ancestral house i.e. Palace was constructed in the year 1820 to 1822 and that Guest house was constructed in the year 1896 has not been challenged in cross examination at all. Thus his evidence shows that item 259 in inventory proceedings or item 87 in exchange deed covers the suit property and is insufficient to conclude that suit property is not situated in Miraxi or Nanerkar. It does not show that said properties are located in Tillachem Bhatulem or Mouli Somnath.
Evidence of Jitendra s/o Raghuraj needs to be perused now. He deposed that in SCS 420/1986, Rajendra took stand that suit property was Miraxi and belonged equally to him and Raghuraj. He did not give any land registration number or its adicaoes i.e. subdivisions. He further stated that Rajendra''s stand was similar in SCS 416/1986 & 16/1987. He spoke about better particulars given by Raghuraj in High Court proceedings and offered clarification that house was not registered in land registration office and it was enrolled under No. 67 of house record of matriz No. 1310 of Taluka Revenue Office. He stated that movables were not separately enlisted in inventory proceedings because as disclosed to him by Raghuraj, Vassudeva had advised its non-listing. As deposed by him, Vassudeo told Raghuraj that house property included movables as per Portuguese law. He deposed that Vassudeo realized that mentioning of residential house i.e. the Palace in item No. 259 was an error and hence Vassudeo corrected it by describing it under No. 67 of house records of matriz predial No. 1310. He mentioned that the said ancestral house was in Tillachem Bhatulem or Ghar Bhatule Nage Porob and in recent survey Nos. 474 subdivision No. 1 to 22 the said property was recorded in same name. He also stated that there is no express mention to said ancestral house in gift deeds of 1925 or 1927 or 1929. There is no matriz number of 1/3rd of Miraxi in 1956 exchange deed. He deposed that in 1933 Will, Viscount Atmaram mentioned that he gifted that said ancestral house was already gifted by him to Raghuraj by fidecommissium deed. He also pointed out that in will Atmaram pointed out new distinguishable construction made by Vassudeo. He stated that old Palace stood in Tillachem Bhatulem while construction by Vassudeo fell partly in Tillachem Bhatulem & Mouli Somnath. Little later he added that suit property stands in the name Tillachem Bhatulem & Gharbhatule Nague Porobo in form No. I & XIV. He deposed that Tillachem Bhatulem is commonly known as Ghar Bhatulem and both names appeared on form I & XIV. According to him ancestral house is not situated on 1/3rd undivided part of Ghar Bhatule Nague Porob. Thus a new story of Tillachem Bhatulem being commonly known as Ghar Bhatulem is brought on record here. He also deposed that in plan initially filed by Rajendra in SCS 499/1987 location of suit property was shown. Strip described under No. 3268 was part of Gharbhatule Raulu Porob & Hari Vene Porob exclusively owned and possessed by Raghuraj. After amendment in new plan Guest house is shown in Nanerkar. He stated that Guest house was in Tillachem Bhatulem surveyed under 474/13. He, in cross examination, accepted that in his deposition recorded in in SCS 416/1986 he deposed that residential house was constructed beginning in the year 1790 and its major part was completed in the year 1830. He denied that then properties Tillachem Bhatulem or Mouli Somnath did not belong to family. He volunteered that Tillachem Bhatulem was very old and in possession of family since prior to property described under item No. 25340. He accepted that property Mouli Somnath was acquired in 1902. He denied that 2nd addition of Tillachem Bhatulem was purchased in 1941 but when the document was shown, stated that 12th part thereof was purchased. Little later he also accepted that properties Tillachem Bhatulem & Mouli Somnath were described under different items in inventory proceedings. Mouli Somnath was under item No. 250. He also, in part of cross examination recorded in question answer form, deposed that movables belonged to them as they owned the houses. He denied that before deed of renunciation & exchange, his father had no right to suit property because of rights of Wasudeo.
Further cross of Jitendra s/o Raghuraj shows that inventory item No. 250 i.e. Mouli Somnath was allotted to Raghuraj due to gift in his favour. He accepted that Mouli Somnath was surveyed under Nos. 473 subdivisions 2, 4 & 5 as per survey documents shown to him. He stated that 473/2 was a paddy field, while 473/4 was a coconut band recorded as dry crop land. He stated that name of Gajanan Vithal Satardekar was recorded as tenant in survey No. 473/3 and 473/4. He stated that in plan DW.12/A said survey Nos. were shown as 474 whole. Though he denied that 2nd addition of Tillachem Bhatulem belonged to Rajendra, he maintained that its remaining 3 parts belonged to his father Raghuraj. However after seeing survey records shown to him that 2nd part of Tilachem Bhatulem surveyed under item No. 475/8,item No. 9,10 & 11and survey Nos. 476/8, 476/9, he accepted that 2nd part stood recorded in the name of Rajendra. He volunteered that Rajendra surreptitiously got his name entered. He denied that 4th addition of Tillachem Bhatulem was recorded under matriz No. 1439 but then accepted that 1/3rd of said fraction was recorded in the name of his father. He admitted boundaries of 4th addition mentioned in matriz record 1439. He could not say whether in inventory proceedings, item No. 232, 233, 234 & 1312 dealt with various adicaoes i.e. parts of Tillachem Bhatulem. His further cross examination shows that various mundkarial houses i.e. hoses of protected servants in these properties as recorded in revenue have come on record. He admitted that all structures existing in survey No. 474 and its subdivisions were appurtenances of the residential house.
Description of the Palace and Guest house on record shows that Guest house had a big hall, two kitchens and 14 rooms on ground floor and a dancing hall, two dining halls on first floor and also 4 rooms on second floor. Deposition of PW.2 Shaikh Hassan in SCS 420/1986 gives all details and it shows that Guest house was itself huge and in any case, more than 200 sq. meters in area. PW9 Lau Mayenkar has stated that in residential house there are 4 halls and several rooms. In cross he has stated that there are about 100 rooms. In short area of Palace is also definitely more than 200 sq. mtrs. Jitendra by documents at Exh. "P.N." produced by Rajendra, attempted to show that Palace or Guest house are in Tillachem Bhatulem. The relevant documents are forms I & XIV i.e. land records for the years 1981-82, 1982-83 & 1990-91 of land survey No. 475/5 and 475/7. They pertain to uncultivable land i.e. potkharab land. 475/5 is shown to be house/s with area 200 sq. metres. while 475/7 is shown as occupied by the trees with area of 450 sq. metres. It is obvious that both either separately or even together are insufficient to hold the Guest house or the Palace in question. Jitendra has produced matriz document at Exh. P-22 which is issued on 11/3/1988. It pertains to urban property under matriz Nos. 252 & 260. Both these urban properties are obviously in 3rd adicao of Tillachem Bhatulem. Matriz records were prepared during Portuguese regime to note tax paying non-agricultural properties. In Fabrica da Igreja de N.S. de Milagres Vs. Union of India (UOI) and Others, learned Single Judge of this Court in para 15 it is stated to be settled position that a matriz document is neither an instrument of title nor a source of possession. Organization "matriz predial" was mere administrative exercise aimed at collecting tax revenues from land. Learned Single Judge has stated that as such no legal evidentiary value can be attributed to said registration. This reliance and argument of Advocate Nadkarni could not be refuted by the other side.
Thus even if only part of Tillachem Bhatulem is purchased in 1905, still the evidence of Jitendra is insufficient to conclude that survey No. 474/10 holding Palace or survey No. 474/13 holding the Guest house were part of Tillachem Bhatulem or of Mouli Somnath. He could not establish that Tillachem Bhatulem was also known as Ghar Bhatulem. On the contrary it shows that Tillachem Bhatulem & Mouli Somnath have been dealt with separately under item Nos. 250, 232, 233, 234 & 1312 in inventory proceedings.
Other witnesses of Rajendra are mostly on the point of movables in the suit properties or then about possession and user by him. His witness Parshuram-PW5 in SCS 420/86 is resident of Nanerkar and he approaches his house by road in Nanerkar only. He has stated that Tillachem Bhatulem is on north of Nanerkar. Said road in Nanerkar divides it into northern and southern part and his house is in southern part. Both parts belong to Rajendra. He stated that in northern part there are two worship places by name Thadekar and Rashtroli as also garages, trees, nagarkhana, guest house and one chawl. In cross, he denied that Nanerkar extended only upto road. He further stated that said road was constructed when he was 15 years old. Evidence of PW8 Jayant is also on same lines and he stated that there is a road between Nanerkar and Tillachem Bhatulem and also between Tillachem Bhatulem and Mouli Somnath. He also stated above properties to be in Nanerkar only. He claimed to be from Nanerkar family and worshiping Piple tree by name Thadekar. Pw 11 Sharadchandra has also stated that road was made in 1938 by Vassudeo i.e. Kakasaheb and there was a gate to enter suit property. His worship places namely Rashtroli and Brahman were beyond gate. His family offered food there and in the month of Kartik, they lighted lamps. In cross he stated that road was constructed when he was about 8 years old. According to him, suit property was also known as Nanerkar Wado and belonged to Kakasaheb and to Rajendra. Jitendra has examined himself in SCS 420/86 and Advocate Thali as DW2. But said advocate was appointed by the Court as Commissioner to prepare inventory of articles in museum and therefore his evidence is not relevant here.
The arguments of both learned Senior Advocates on the point of pleadings and burden of proof can be considered here. First Suit vide SCS 416/86 was filed by deceased Raghuraj on 2/9/1986 and it was not for possession. It did not disclose any boundaries and hence Rajendra sought better particulars as per Order 6 Rule 5 then in force by application dated 23/9/1986. That application was rejected on 7/2/1987. In High Court in Civil Revision Application No. 26/1987, Rajendra expressed that he would be satisfied if he was given number of item of its description in inventory proceedings. Accordingly on 9/4/1987 Raghuraj filed his written submission and disclosed that number to be 259. Raghuraj further stated that due to obvious mistake said house of Atmaram was clubbed with 1/3rd share in property Miraxi. He further declared that said house was not registered in Land Registration Office, but was enrolled under house number 67 of matriz predial No. 1310. He also stated that it was surveyed under 474/10. That matriz document dated 11/6/1986 at Exh. P21 expressly refers to Miraxi i.e. Gharbhatule Nague Porobo Miraxi. Legal heirs of Raghuraj filed their written statement in this background on 12/4/1988 in SCS 499/87. They mention that residential house is surveyed under No. 474/10 where it is designated as Tillachem Bhatulem and Gharbhatule Nage Parab. It stood on lands belonging to two adjacent properties known as Tillachem Bhatulem & Mouli Somnath gifted to Raghuraj by his grandfather Atmaram on 20/6/1929. By some mistake Vassudeo clubbed said house with undivided 1/3rd part of property Gharbhatule Nague Parab Miraxi described as item No. 259 though house had nothing to do with it. Legal heirs pleaded that Vassudeo himself corrected the mistake by getting said house enrolled in matriz predial under No. 1310 and house itself with No. 67. They however added that due to original confusion, matriz No. 1310 was taken as referring to Gharbhatule Nague Parab Miraxi. They also pleaded that in any case by this act Vassudeo snapped erroneous connection made in item No. 259 between residential house and 1/3rd share of Gharbhatule Nague Parab Miraxi. It is more than apparent that as per Jitendra representing Raghuraj''s branch Vassudeo became aware of alleged erroneous connection and therefore corrected it by enrolling the property in matriz record. If this was true, the alleged mistake was of clubbing suit property i.e. Guest house and Palace with Miraxi and it would not have been repeated by Vassudeo in matriz predial. Having realized the so called error, he would not have committed it while executing and registering deed of renunciation and exchange in 1956. If he realized the mistake after 1956, he was alive till 1962 and because of his alleged intention to rectify, he would have definitely secured correction in registered deed of renunciation and exchange. But for such plea of Raghuraj while giving better particulars where he mentions it as "obvious mistake" and elaboration of that mistake by Jitendra and his plea of its correction by Vassudeo himself, there is absolutely nothing on record to support it. Had Raghuraj been aware of this correction he would have supplied or atleast pleaded that enrolling said property in matriz predial under No. 1310 and house itself with No. 67 was by way of rectification and snapped its erroneous clubbing with Miraxi. We fail to understand how mere enrollment in matriz predial under No. 1310 and house itself with No. 67 has the effect of snapping the connection. It is to be noticed that as per stand of Jitendra survey No. 474/10 is designated as Tillachem Bhatulem and Gharbhatule Nage Parab and residential house i.e. Palace stands on it. It also stands on lands belonging to two adjacent properties known as Tillachem Bhatulem and Mouli Somnath. Thus the plea itself is mutually inconsistent. In deposition he came with the theory that Tillachem Bhatulem and Gharbhatule Nage Parab are names of same property. In any case, there is no effort made to prove any of this by leading any independent evidence or through the surveyors.
Deposition of Jitendra in SCS 416/86 needs to be scrutinized now. He only mentions that as boundaries in inventory item 259 are wrong, the residential house could not have been clubbed with it. He further states that Guest house is in 3rd addition of Tillachem Bhatulem and did not form part of exchange deed in 1956. In support he relied upon exh.P-22 i.e. matriz certificate already considered above by us. In cross examination he accepted that item No. 259 covered residential house. He accepted that description of said item was under No. 25340 namely 1/3rd of Miraxi. He accepted that property 1/3rd of Miraxi described under 25340 was subject matter of 1956 exchange vide its item No. 87. He stated that Palace was constructed from year 1790 and its major portion in 1830. He also stated that its last portion was constructed in 1933. He accepted that it is surveyed under No. 474/10. He accepted that Mouli Somnath was acquired on 23/1/1902, but then denied that it was after construction of the residential house. In his deposition recorded in question answer form, again show similar admissions which disprove his contention of alleged mistake and its correction. He there accepted that residential house is enrolled under No. 67 of matriz predial No. 1310 which was of 4th addition of Gharbhatule Nague Porob Miraxi. Though in his further cross examination conducted on next date, he tried to make amends and it is obviously by way of afterthought. He however accepted that in 1975 partition, Tillachem Bhatulem fell to his share while Mouli Somnath went to his mother. Learned Senior Advocate D''Costa has urged that Jitendra has not given any admissions but only accepted what documents stated and his evidence does not show that he accepted the facts emerging from documents to be correct. However, we are not in position to draw any such inference from his deposition. This logic in any case cannot extend to deposition recorded in question answer form and that is sufficient to discredit him. Similarly, in view of plea of joint possession by both the parties fact that Rajendra was all the while at Bombay or Raghuraj only stayed at Goa, even it presumed to be true, is hardly of any consequence here. Fact remains that effect of 1956 exchange clothing Rajendra with title to suit properties is not in dispute and only contention is that it is an inadvertent error.
Advocate D''Costa has tried to show that in exchange deed value of item No. 87 is only Rs. 10/-, while it was Rs. 15,000/-in item No. 259. According to him, this less valuation at item 87 did not include Palace or Guest house which were earlier clubbed erroneously with item No. 259 in inventory proceedings. Advocate Nadkarni has invited attention to other items therein to show that Tillachem Bhatulem and Mouli Somnath are valued at Rs. 300/-only, as Palace or Guest house are not located in it. He also invites attention to plaint in SCS 416/1986 filed by Raghuraj, particularly paragraphs 7 and 14 to show that Raghuraj mentioned Palace & Guest house in item No. 259 and contended that because of valuable movables in it, said property was valued at Rs. 15000/-as movables were supposed to pass with Palace & Guest house. In view of our discussion above, we find that said aspect is not determinative here at all. Rajendra was not even born when these inventory proceedings were conducted. There is no pleading of any malice or bias entertained by Vassudeo against Raghuraj. The plea is of simple mistake and its rectification by Vassudeo himself which has not been substantiated. On the contrary, Will of Atmaram shows that Vassudeo had constructed separate house for himself in vicinity and it was connected by arched varandah with the Palace. Will also mentions that on adjacent plot Vassudeo had, at his cost, built a house for poor as per directions of Atmaram and Atmaram hoped that his son would complete its construction and it would be used as hospital at maintenance cost of Vassudeo and has praised and approved this act of his son. No evidence of any subsequent deviation from this wish by Vassudev is on record. We, therefore, do not find any substance in the contention of Jitendra that Vassudeo had any grudge against Raghuraj. When properties Tilachem Bhatulem & Mouli Somnath have been dealt with separately in inventory proceedings and suit properties are stated to be in item No. 259 in the said proceedings, we find it difficult to accept any error, even inadvertent, in said description. When on 6/12/1956 deed of renunciation & exchange was entered into and this property went to Rajendra, it was not the plea of Raghunanth that he signed the document without understanding its effect or then he was cheated in any way. Large number of properties are exchanged by said document and all parties to it were major. It is obvious that the execution of document was preceded by some oral understanding about its form and contents. He has not brought on record any evidence to show what was the oral understanding between parties to that document and Jitendra, also has not put any questions about misrepresentation or fraud or mistake of fact to Rajendra. Even if alleged theory of error by Vassudeo in 1933 inventory proceedings is accepted, it does not mean that in exchange on 4/12/1956 the suit properties could not have been given to Rajendra. The evidence on record is therefore insufficient to point out any error in 1956 exchange deed.
In all documents inter parties the detailed description of immovable properties is not given. The lands are mentioned with understanding that house properties or structures therein stood included in them. In view of his pleadings and better particulars furnished or then alleged error of Vassudeo or then of Raghuraj, heavy burden lay upon Jitendra to substantiate his story. Even if it is presumed for the time being that there was some error by Vassudeo that by itself is not sufficient to vitiate the exchange between Raghuraj and Jitendra. There ought to have been adequate pleadings about the circumstances in which 1956 composite document came to be entered into. We are not in position to accept that alleged error in inventory proceedings has been mechanically carried into this 1956 document. We are also not able to understand how ignorance of Raghuraj in the matter can be orally sought to be raised for the first time before us. In Divisional Manager, United India Insurance Co. Ltd. and Another Vs. Samir Chandra Chaudhary, relied on by Advocate D''Costa, Hon''ble Apex Court states:
It cannot be lost sight of that nobody was examined by the complainant about the subsequent version that there was no storm. Admission is the best piece of evidence against the persons making admission. As was observed by this Court in Avadh Kishore Das Vs. Ram Gopal and Others, in the backdrop of Section 31 of Indian Evidence Act, 1872 (in short the ''Evidence Act'') it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted. As observed by Phipson in his Law of Evidence (1963 Edition, Para 678) as the weight of an admission depends on the circumstances under which it was made, these circumstances may always be proved to impeach or enhance its credibility. The effect of admission is that it shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established. An admission is the best evidence that an opposing party can rely upon, and though not conclusive is decisive of matter, unless successfully withdrawn or proved erroneous. See Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others,
However, here we find that the admissions of Jitendra mentioned above have not been explained to be wrong at all. In Razia Begum Vs. Sahebzadi Anwar Begum and Others, also cited by learned Sr. Advocate D''Costa, Hon''ble Apex Court records its conclusions as under:
As a result of these considerations, we have arrived at the following conclusions:
(1) That the question of addition of parties under Rule 10 of Order 1 of the Code of Civil Procedure, is generally not one of initial jurisdiction of the court, but of judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as to the power of the court, in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in Section 115 of the Code;
(2) That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a commercial interest, in the subject-matter of the litigation;
(3) Where the subject-matter of the litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party, it would be in a better position effectually and completely to adjudicate upon the controversy;
(4) The cases contemplated in the last proposition, have to be determined in accordance with the statutory provisions of Sections 42 and 43 of the Specific Relief Act;
(5) In cases covered by those statutory provisions, the court is not bound to grant the declaration prayed for, on a mere admission of the claim by the defendant, if the court has reasons to insist upon a clear proof apart from the admission;
(6) The result of a declaratory decree on the question of status, such as in controversy in the instant case, affects not only the parties actually before the Court, but generations to come, and in view of that consideration, the rule of ''present interest'', as evolved by case law relating to disputes about property does not apply with full force; and
(7) The rule laid down in Section 43 of the Specific Relief Act, is not exactly a rule of res judicata. It is narrower in one sense and wider in another.
Neither trial court has given nor this Court is giving relief to Rajendra only because of admissions of Jitendra. The case law as cited is therefore not relevant in present matter.
Learned Sr. Advocate Nadkarni has relied upon AIR 1967 S.C. 341 "Basant Singh v. Janki Singh" to point out significance of admission of Raghuraj in pleadings. Hon''ble Apex Court there in para 5 holds that under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true. Thiru John Vs. The Returning Officer and Others, Hon''ble Apex Court declares that it is well settled that a party''s admission as defined in Sections 17 - 20, fulfilling the requirements of Section 21, Evidence Act, is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted the fact admitted must be taken to be established". In Rajgopal (Dead) by Lrs. Vs. Kishan Gopal and Another, in para 9 Hon''ble Apex Court lays down that evidence without plea is not valid by reference to a decision of the Privy Council in the case of AIR 1930 57 (Privy Council) in which it was held that "where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward." The said case has been referred to by Apex Court with approval in the case of Bhagat Singh and Ors. v. Jaswant Singh AIR 1966 SC 1861. In that case, some evidence was led, but the High Court refused to go into the question observing that where no plea was taken, it cannot be said that there was any lis between the parties thereon. Hon. Apex Court Court upheld decision of the High Court observing that the same was supported by decision of the Judicial Committee in the case of AIR 1922 393 (Privy Council) has also been shown with argument that if two views are possible in the matter and trial court has taken one such view, Appellate Court should not interfere. All these rulings are applicable in present appeals and we also find that view reached by the learned trail Court is the only possible view in the matter. Accordingly, we answer issues No. (i), (ii) & (iii) against Jitendra and other appellants and therefore dismiss the First Appeals 67 to 70 of 1994.
As already stated above various documents executed then contain only the very general description of only lands i.e. its name only or then land registration number of property, if available and parties acted as if lands i.e. plots included structure also. Pleadings of Raghunath in SCS 416/1986 also declare this position and he claimed all movables and articles/commodities within suit property as automatically belonging to him. His this impression is not shown to be either incorrect or contrary to any legal provision in any law. The word "house" or then Palace or Guest house cannot be interpreted as referring only to roof and walls but will include all furnitures, fixtures, articles and appurtenances used as its part for beneficial enjoyment thereof. By the same logic, obviously movables including furniture and antique items go with suit properties to Rajendra. We are not in position to accept the reasoning or logic of trial Court in paragraph 72 of its judgment. Issue No. (iv) above needs to be answered in favour of Rajendra. First Appeal 73 of 1994 filed by him, therefore, needs to be allowed. Accordingly, we find Rajendra through his heirs entitled to movables and other articles in Suit Property. Thus with this modification the rest of the impugned common judgment and decree is maintained as it is.
Accordingly, we dismiss First Appeals No. 67 to 70 of 1994 and allow First Appeal 73 of 1994, but with no orders as to costs.