Smt. Maria Apolonia Dulcina Floripes Saldanha e Rebello and Others vs Mrs. Rodolfina Barreto e Rebello and Others

A. P. Lavande, J.—Heard Mr. Rao, learned Counsel for the appellants and Mr.Ferreira, learned Counsel for the respondent Nos.1,2, 4 to 9. This appeal is directed against the judgment and decree dated 02.07.2007 dismissing the appeal filed against the judgment and decree dated 05.12.2000 passed by the Civil Judge, Junior Division, Margao in Regular Civil Suit No.169/1992/E.

The appellants are the original plaintiffs, who filed above suit against the respondents / defendants seeking declaration and permanent injunction. The case of the plaintiffs was that Survey Nos.41/2, 49/4 of Village Colva from part and parcel of the property known as ''Cabeceira Segundagleba'', which is surveyed under numbers 41/2, 49/4, 55/3 and 54/5 of village Co lava. The suit was contested. The Trial Court, upon appreciation of the evidence led by the parties, held that the plaintiffs had failed to prove that the said property was surveyed under numbers 41/2, 49/4, 55/3 and 54/5. The Trial Court held that the plaintiffs have proved that the said property bears lot No.113 and was a grant of Communidade. Against the decree passed by the Trial Court, the appellants preferred the above appeal. During pendency of the appeal, the appellants filed an application purporting to be under Order XLI, Rule 27 of CPC seeking to produce certificate dated 19.1.2005 issued by Superintendent of Survey and Land Record, Panaji which discloses that the lot No.113 part was surveyed under Nos. 54/5 (part), 55/3(part), 49/4(part) and 41/2(part). The Appellate Court rejected the said application on the ground that no case was made out for permitting the appellants to produce the said documents in terms of Order XLI, Rule 27 of Civil Procedure Code.

The Lower Appellate Court, by the impugned decree, dismissed the suit after recording concurrent findings with the findings given by the Trial Court.

Mr. Rao, learned Counsel appearing for the appellants submitted that the impugned decree passed by the Lower Appellate Court, is liable to be set aside on the following grounds :

i) The Lower Appellate Court committed error and acted illegally in not permitting the appellants to produce certificate dated 19.01.2005 which was necessary to decide the real controversy involved in the suit.

ii) The Lower Appellate Court did not formulate points for determination and thereby the decree passed by the Lower Appellate Court, is vitiated.

iii) The Lower Appellate Court, after holding that the plaintiffs had proved title to the Lot No.113 and the respondents having failed to prove the exact portion purchased by them from the said property, wrongly cast burden to prove that Survey Nos.41/2 and 49/4 were the part of Lot No.113.

Per contra, Mr. Ferreira, learned Counsel for the respondent Nos. 1,2,4 to 9 submitted that the findings recorded by both the Courts below that the plaintiffs had failed to prove that Survey Nos.41/2, 49/4 were the part of Lot No.113 (part), is a pure finding of fact, which cannot be upset in second appeal. He further submitted that merely because the Lower Appellate Court has not formulated the points for determination, the same would not vitiate the decree in as much as the Lower Appellate Court has addressed itself to the real questions involved in the appeal. The learned Counsel further submitted that the Lower Appellate Court has rightly rejected the application for production of certificate dated 19.01.2005 since the said document is not a public document and the appellants had not made out a case under Order XLI, Rule 27 of Civil Procedure Code. The learned Counsel further submitted that no substantial question of law, is involved in the present appeal and, hence, the appeal deserves to be summarily dismissed.

Having considered the submissions made by the learned Counsel for the parties and having perused the record, I find no merit in the present appeal.

Perusal of the judgments passed by both the Courts below discloses that the appellants/ plaintiffs have not been able to prove that the Survey Nos.41/2, 49/4 were the part of the property ''Cabeceira Segundagleba'' bearing Lot No.113, which was a grant of Communidade. Therefore, the finding given by the both the Courts below that the appellants / plaintiffs have not been able to establish title to Survey Nos. 41/2, 49/4, cannot be faulted. In so far as non-framing of points for determination is concerned, I find that although specifically points for determination have not been formulated, the Lower Appellate Court has addressed itself to the real questions involved in the appeal and, therefore, on this sole ground, the decree passed by the Lower Appellate Court, is not liable to be set aside. In so far as the submission made by Mr. Rao that the Lower Appellate Court ought to have allowed production of certificate dated 19.01.2005 which would have proved the case of the appellants is concerned, I find myself unable to accept the same. Perusal of the certificate discloses that the same cannot be termed as a public document and in any case, the same does not conclusively prove the case of the appellants. In so far as the arguments advanced by Mr.Rao that burden of proof was wrongly cast upon the appellants is concerned, I also find no merit therein. The appellants being the plaintiffs in the suit, had to prove by leading cogent evidence that Survey Nos. 41/2 and 49/4 were the part of their property. The appellants having failed to prove the same, in my opinion, both the Courts below, were legally justified in dismissing the suit filed by the appellants. I also find merit in the submission of Mr.Ferreira that no substantial question of law is involved in the present appeal. On this ground alone, the appeal is liable to be dismissed. In view of the above, I find no merit in the appeal and the same is summarily rejected.