Wednesday, 1 June 2016

Party has to plead facts only,not evidence

I have considered the submissions of the learned Counsel as also
gone through the records. On perusal of the impugned Judge, the contention of
Shri J. E. Coelho Pereira, learned Senior Counsel that there is an admission by
non-traversal in the pleadings has not been examined by the learned Judge whilst
passing the impugned Judgment. This would have to be examined by the learned
Judge in conjunction with the other evidence adduced by the parties. Having failed
to do so, I find that the learned Judge has misconstrued the pleadings of the parties
to hold that the Appellant has failed to establish his right to the suit property. It is
well settled that a party has to only plead facts and not evidence. In the present
case, there is a specific averment by both the parties in the pleadings claiming that
they are in possession of the suit property. The evidence adduced by the
respective parties on that count cannot be brushed aside on a spacious ground that
these averments were not found in the pleadings of the parties. This aspect would
have to be examined in the context of the evidence and the pleadings of the
parties. In such circumstances, I find that the learned Judge was not justified to
discard the evidence of Pw. 2, Pw.3, Dw.2, Dw.3 and Dw. 4 whilst coming to the
conclusion that the Appellant has failed to establish his right to the suit property.
Having regard to the facts and circumstances of the case and consideraring that

the learned Judge has not examined the matter in accordance with law, I find it
appropriate, in the interest of justice, to quash and set aside the impugned
Judgment passed by the Lower Appellate Court and direct the learned Judge to
decide the Appeal afresh after hearing the parties in accordance with law.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 82 OF 2007
Pedro do Rosario Fernandes
alias Pedro Antonio Miguel
V e r s u s
 Mr. Wilfredo Xavier Jose Monteiro,
 Coram :- F. M. REIS, J
Date : 17thJanuary, 2014.
Citation: 2016(2) ALLMR844


Heard Shri J. E. Coelho Pereira, learned Senior Counsel appearing
for the Appellant and Shri Coutinho, learned Counsel appearing for the Respondent
no. 1.
2. The above Appeal came to be admitted by an Order dated 16.07.2010
on the following substantial questions of law :
1. Whether the Lower Appellate Court has misconstrued
the provisions of the Limitation Act of Article 58 to the
effect that the suit for declaration of title is barred by
the law of limitation when there was no claim of
adverse possession raised by the Respondents
herein ?
2. Whether the findings of the Lower Appellate Court to
the effect that the Appellants have failed to identify
the suit property are perverse in view of the fact that
the contents of Para 1 and 2 of the plaint have not
been denied by the Respondents in their written
statement ?
3. Whilst dealing with the first substantial question of law, Shri J. E.
Coelho Pereira, learned Senior Counsel appearing for the Appellant, has taken me
through the plaint filed by the Appellant wherein it has been clearly stated that the
Appellant obtained a certified copy of the survey records in August, 1996 and had

filed the suit in May, 1999. Learned Senior Counsel further pointed out that these
averments in the plaint have not been disputed by the Respondents in the written
statement and, as such, the learned Judge was not justified to pass the impugned
Judgment on the ground that the suit filed by the Appellant for declaration of title
was barred by limitation. Learned Senior Counsel further pointed out that merely
because the survey records were kept for objection, by itself does not mean that
the Appellant/owners of the properties have to file a suit for declaration of title within
a period of three years therefrom. Learned Senior Counsel has taken me through
the impugned Judgment and pointed out that the learned Judge has misconstrued
the limitation Act and has erroneously come to the conclusion that the suit was
barred by limitation.
4. Shri C. A. Coutinho, learned Counsel appearing for the Respondent
no. 1, with that regard has supported the Judgment of the Lower Appellate Court.
The learned Counsel has pointed out that once the survey records are admittedly in
the name of the Respondents, it was incumbent upon the Appellant to file such suit
within a period of three years from the date the survey records came to be
promulgated. Learned Counsel further pointed out that the learned Judge has
rightly appreciated the evidence on record and has come to the conclusion that the
suit was barred by limitation.
5. I have carefully considered the submissions of the learned Counsel. I
have also gone through the records. Shri J. E. Coelho Pereira, learned Senior
Counsel appearing for the Appellant, is justified to contend that the averments in
the plaint that the Appellant obtained the certified copy of the survey records only in
August, 1996 have not been disputed by the Respondents in the written statement.
Be that as it may, the suit filed by the Appellant is for declaration of title. Under the
provisions of the Limitation Act, specially Section 27 of the Limitation Act of 1963,
the right to immoveable properties stands prescribed as per the period provided in
the schedule of the said Act. Article 65 and 66 of the Limitation Act, 1963, provides
that title to the property is lost only by adverse possession for the specified period.
In the present case, the finding of the learned Judge that the suit for declaration of
title is barred by limitation, cannot be accepted. The cause of action to file a suit for
declaration of title is continuous and, as such, a suit can be filed as long as the title
to the property subsists. In the present case, unless and until the Respondents
establish that they have become owners by adverse possession, the findings of the
learned Judge that the suit is barred by limitation is unsustainable and deserves to
be quashed and set aside. The Apex Court in the Judgment reported in (2010) 2
S.C.C. 194 in the case of Daya Singh & anr. vs. Gurudev Singh (Dead) by LRs
& Ors., has observed at Para 18 has stated thus :
“18. In this view of the matter, we do not find
any ground to agree with the findings of the high
Court that the suit was barred by time because of its
filing after 18 years of entering into the compromise.
The question of filing the suit before the right accrued
to them by compromise could not arise until and
unless infringement of that right was noticed by one of
the parties. The High Court in the impugned
Judgment, in our view, had fallen in grave error in
holding that the suit was barred by time and had
ignored to appreciate that the rights of the appellants
to have the revenue record accrued first arose in
1990 when the appellants came to know about the
wrong entry and the respondents failed to join the
appellants in getting it corrected. In our view, the
High Court was not justified in holding that mere
existence of a wrong entry in the revenue records
does not, in law, give rise to a cause of action within
the meaning of Article 58 of the Act. No other point
was urged before us by the learned counsel for the
parties.”
Considering the ratio laid down by the Apex Court, merely entering
the name in the Survey Records by itself would not give a cause of action to the
Appellant/Plaintiff to file a suit for declaration unless his right to enjoy the property
has been infringed or at least there is a clear and unequivocal threat to infringe the
right of the Appellant/Plaintiff in the suit property. As such, the Lower Appellate
Court, was not justified to come to the conclusion that the suit for declaration was
barred by limitation taking note of the cause of action as pleaded in the plaint. The
first substantial question of law is answered accordingly.
6. With regard to the second substantial question of law, Shri J. E.
Coelho Pereira, learned Senior Counsel appearing for the Appellant, has pointed
out that on reading of para 1 of the plaint, there are specific averments to the effect
that the Appellant is the owner in possession of a specific property having a specific
matriz number and a survey number. Learned Senior Counsel has thereafter taken
me through the written statements and pointed out that the Respondents have
merely denied the said contention and other averments made therein only suggests
that the contention of the Respondents was that the Appellant was never in
possession of the suit property. Learned Senior Counsel further pointed out that
the identity as well as the location of the property has not been disputed by the
Respondents and, as such, according to him, the learned Judge was not justified to
lose sight of the said aspect whilst coming to the conclusion that the Appellant has
not established his right to the suit property. Learned Senior Counsel has taken me
through the impugned Judgment and pointed out that though it was specifically
averred in the plaint that the Appellant was in possession of the property, the
evidence adduced by the Appellant to establish such aspect has been discarded by
the learned Judge. Learned Counsel further pointed out that the learned Judge has
erroneously discarded the evidence of Pw. 2 and Pw.3 on such count. Learned
Counsel further pointed out that non-consideration of the said admission in the
plaint as well as the evidence of the said witnesses has resulted in a perverse
findings of fact by the learned Judge to hold that the Appellant has failed to
establish his right to the suit property.
7. On the other hand, Shri C. A. Coutinho, learned Counsel appearing
for the Respondent no. 1, has disputed that there is any admission as sought to be
contended by Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the
Appellant. Learned Counsel has taken me through the pleadings in the written
statements and pointed out that it is now well settled that the pleadings have to be
read as a whole and, according to him, there is a serious dispute raised by the
Respondents with that regard to the claim of the Appellant over to the suit property.
Learned Counsel further pointed out that there are specific pleadings that the
Respondents are disputing the right of the Appellant to the suit property. Learned
Counsel further pointed out that the learned Judge has also discarded the evidence
of Dw.2, Dw.3 and Dw.4, on the ground that such evidence was beyond the
pleadings of the Appellant. The learned Counsel as such submits that the said
substantial question of law is to be answered against the Appellant.
8. I have considered the submissions of the learned Counsel as also
gone through the records. On perusal of the impugned Judge, the contention of
Shri J. E. Coelho Pereira, learned Senior Counsel that there is an admission by
non-traversal in the pleadings has not been examined by the learned Judge whilst
passing the impugned Judgment. This would have to be examined by the learned
Judge in conjunction with the other evidence adduced by the parties. Having failed
to do so, I find that the learned Judge has misconstrued the pleadings of the parties
to hold that the Appellant has failed to establish his right to the suit property. It is
well settled that a party has to only plead facts and not evidence. In the present
case, there is a specific averment by both the parties in the pleadings claiming that
they are in possession of the suit property. The evidence adduced by the
respective parties on that count cannot be brushed aside on a spacious ground that
these averments were not found in the pleadings of the parties. This aspect would
have to be examined in the context of the evidence and the pleadings of the
parties. In such circumstances, I find that the learned Judge was not justified to
discard the evidence of Pw. 2, Pw.3, Dw.2, Dw.3 and Dw. 4 whilst coming to the
conclusion that the Appellant has failed to establish his right to the suit property.
Having regard to the facts and circumstances of the case and consideraring that
the learned Judge has not examined the matter in accordance with law, I find it
appropriate, in the interest of justice, to quash and set aside the impugned
Judgment passed by the Lower Appellate Court and direct the learned Judge to
decide the Appeal afresh after hearing the parties in accordance with law.
9. Shri C. A. Coutinho, learned Counsel, pointed out that instead of
remanding the matter to the lower Appellate Court, the same may be remanded to
the learned Trial Court. Learned Counsel further pointed out that the learned Trial
Judge has not examined the written statement filed by the Respondents whilst
decreeing the suit. Learned Counsel further pointed out that the learned Judge has
only relied upon an allotment in the Inventory Proceedings produced by the
Appellant without giving any valid reasons nor considering the allotment in favour of
the Respondents in the Inventory Proceedings initiated upon the ancestors of the
Respondents.
10. Considering the view taken by me herein above, I find that these
aspects can be examined by the Lower Appellate Court upon hearing the parties on
its own merits. No doubt, the learned Trial Judge ought to have scrutinised all the
material on record whilst coming to the conclusion that the Appellant has
established their case. But, however, these aspects can also be gone into by the
Lower Appellate Court as it is now well settled that the whole dispute is open before
the Lower Appellate Court in a first appeal as it can also re-appreciate the evidence
on record. In such circumstances, I find it appropriate to remand the matter to the
Lower Appellate Court to decide the Appeal preferred by the Respondents on its
own merits in accordance with law.
11. In view of the above, I pass the following :
O R D E R
(I) The Appeal is partly allowed.
(II) The impugned Judgment passed by the Lower
Appellate Court dated 05.02.2007 is quashed and set
aside. Regular Civil Appeal no. 51/2006 is restored to
the file of the learned Appellate Court.
(III) The Lower Appellate Court is directed to decide the
said Appeal afresh in the light of the observations
made herein above in accordance with law.
(IV)All the contentions of both the parties are left open.
(V) Parties are directed to appear before the Lower
Appellate Court on 11.04.2014 at 10.00 a.m.
(VI) Appeal stands disposed of.
F .M. REIS, J.
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