Smt. Mirabai Madhav Kossambe and Others vs Smt. Laxmi Narayan Naik and Others

R.M. Savant, J.—This Appeal challenges the Judgment and Decree dated 31.7.2008 passed by the learned District Judge-3, Margao Goa, by which the Regular Civil Appeal No.60/07 came to be allowed and the Decree passed in Special Civil Suit No. 134/78/A came to be set aside. The Appellants are the original Plaintiffs who had filed Special Civil Suit No. 134/1978/A inter-alia for the relief of a declaration that the order dated 3.2.1972 passed by the Mamlatdar in MAG/CP No.2 of 1971 is null and void and not binding on the Plaintiffs. The Plaintiffs had also sought a relief that the Defendants be jointly and severally decreed and ordered to deliver the possession of the cashew grove in the land Xindolem, Situated at Sancoale, Cortalim, Goa, and surveyed under survey No.46/1 (part) and 64/4( part ) of Sancoale Village. The declaration was sought on the ground that the proceedings filed by the Respondents herein before the Mamlatdar were filed behind back of the Plaintiffs and the order passed by the Mamlatdar was therefore passed behind the back of the Plaintiffs. The Plaintiffs had sought the delivery of the possession inter-alia on the ground that the Defendant No.1 could not have created a lease in favour of the Defendant No.2 without the leave of the Court, as the Defendant No.1 was a receiver, that the Defendant No.2 started enjoying the cashew crop only after 3.2.1968 under the cover of the ex-parte ad-interim order dated 3.2.1968 passed in Suit No.10/68 to which the Plaintiffs were not parties, that the Defendants have obtained the deed of tenancy by exercising fraud and therefore the Defendant No.2 does not have any right to enjoy or interfere with the said property. The Plaintiffs had also prayed for mesne profits on account of the wrongful occupation of the suit premises by the Defendant No.2 in the present suit. A written statement was filed on behalf of the Defendant No.2. It was contended that lease was granted to the Defendant No.2 by Defendant No.1 on annual rent of Rs.5000/-and 6 gallons of liquor. That the Defendant No.1 at the time of creating lease was the head of the family and was managing all the properties of the family. That the Plaintiffs were aware of the proceedings before the Mamlatdar but did not get themselves impleaded. That the Defendant No.2 is in possession and enjoyment of the cashew grove since 1968.

The parties went to Trial, the Trial Court on the basis of the material that was before it thereby decreed the suit and the prayer for mesne profits was also allowed and the heirs of the Defendant No.2 were directed to pay a sum of Rs.5000/-per annum, as mesne profits from the date of filing of the suit till recovery.

Aggrieved by the Decree passed by the Trial Court dated 24.8.2007, the Defendant No.2 filed an Appeal as also Appeal was also filed by some of the other Defendants. The Appeal filed by the Defendant No.2 came to be numbered as Regular Civil Appeal No.60/07. The said Appeal came to be allowed by the learned District Judge and the Decree passed by the Trial Court came to be set aside. The learned District Judge inter-alia held against the Appellants on the ground of the jurisdiction of the Civil Court to try the suit in the context of the substantive relief sought by way of prayer clause (a) which was a declaration for declaring the order of the Mamlatdar dated 3.1.1972 as null and void. The First Appellate Court also held against the Appellants on the ground of limitation by holding that the suit filed in the year 1978 was beyond limitation as the Plaintiffs were required to file the said suit by 1977 as the First Appellate Court recorded a finding that since the Plaintiff No.2 was aware of the order passed by the Mamlatdar in June, 1974, the period of limitation would start from the said order and therefore the suit had to be filed by the year 1977. The issue of limitation which goes to the very root of the maintainability of this suit has been considered by the First Appellate Court threadbare and the First Appellate Court has held that the case of the Plaintiffs that they became aware of the proceedings before the Mamlatdar only on 24.2.1977 could not be accepted. The First Appellate Court held that in the proceedings which were filed before the Awal Karkun by the Plaintiffs for deletion of the name of the Defendant No.2, the Defendant No.2 had produced the order of the Mamlatdar dated 3.1.1972 and on the basis of the said document the survey authority had passed an order on 17.6.1974. The First Appellate Court has also relied upon the fact that in the evidence of PW1 one Shri Sagar has also stated that on 7.8.1976 the Plaintiffs were aware that the Defendant No.2 was in possession of the cashew portions of the suit property. The First Appellate Court also took into consideration the order dated 3.8.1978 passed by the J.M.F.C., Vasco, before whom the proceedings had arisen on account of the complaint filed by the Plaintiffs, that the Defendants had cut some trees in the suit property and had also committed theft of some trees. In the said order of the J.M.F.C., it is recorded that the Plaintiff No.2 Madhav Kossambe had admitted that the name of the Defendant No.2 is recorded as tenant of the cashew grove and that he had raised objection and had prayed for deletion of the name of the Defendant No.2 as tenant from the records and that the said dispute was disposed of by the Awal Karkun by order dated 29.10.1974. The First Appellate Court therefore taking into consideration the facts as stated above held that since the Plaintiffs had come to know about the order passed by the Mamlatdar on or about 17.06.1974 the suit ought to have been filed within three years of the said date as per Article 59 of the Limitation Act, and, therefore, the suit filed on 26.8.1978 was barred by limitation in so far as issue of jurisdiction is concerned the First Appellate Court has relied upon the judgment of the Apex Court reported in Sau. Saraswatibai Trimbak Gaikwad Vs. Damodhar D. Motiwale and Others, .

Though the learned Counsel for the Appellants sought to distinguish the facts in the said judgment from the facts of the instant case, in my view, assuming that the suit is maintainable, in the light of the findings recorded by the First Appellate Court that the knowledge of the order passed by the Mamlatdar is to be attributed to the Plaintiffs from 17.6.2004 and, therefore, the suit filed in the year 1978 was beyond limitation, the distinction sought to be made by the learned Counsel for the Appellants would have no relevance. The First Appellate Court as indicated herein above on the basis of the material that was before it and in exercise of the Appellate powers has recorded a finding of fact on the issue of limitation against the Plaintiffs. This Court is sitting in Second Appeal u/s 100 of C.P.C., cannot re-appreciate the evidence once again and come to a different finding than the one of the Appellate Court. Having heard the learned Counsel for the parties, and perused the grounds of Appeal, in my view, no substantial question of law arises for consideration. The Second Appeal is accordingly dismissed.