“... It is true that the prayer made in plaint is not
properly worded.
Instead of seeking a declaration of
his title, the responde n t No.1 has prayed for deletion
of the name s of the appellant and other responde n t s
from the record of rights in respect of the suit lands
and to enter his name therein.
function
nor the jurisdiction
It is
neither the
of civil court to issue
direction for making or deleting entries in the record
of rights.
revenue
That is the function of
authorities
Revenue Code.
under
assigned
to the
the Mahar a s h t r a
Land
The proper relief which respondent
No.1 could have prayed for was declaration of his
title to the suit lands
on the basis
of the Will
executed by deceased Mugu Balu Teli.
obtains
such
a declaration
from
the
Once he
court,
the
revenue aut hority will have to make or correct the
of
the
entries accordingly in the record of rights in respect
of the suit lands.
Although, therefore, the appeal is
being dismissed, the order and decree passe d by the
courts below will have to be suitably modified."
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEALS NO. 147 / 2 0 0 5
& 162 / 2 0 0 5
SECOND APPEAL NO.147 / 2 0 0 5
Smt. Anandi Bhicaro Veluska r,
V/s.
Shri Kusta n a n d Vithu Veluskar,
CORAM : A.P. LAVANDE, J.
Date of prono u n ci ng the Judg me n t :
th
13 April, 2006.
Citation;2006 (6) Bom. C.R. 384
Heard Mr. Menezes, learned Counsel for the appellant
and Mr. Kansar, learned Counsel for the respondents in Second
Appeal No.147/2005 and
Mr. Kansar, learned Counsel for the
appellants and Mr. Menezes, learned Counsel for the respondent in
Second Appeal No.162/2005.
Both these appeals can be disposed of
by common judgment since both these appeal are preferred against
the Judgment and Decree dated 29th June, 2005 passed by the Ist Ad
hoc Additional District Judge, Panaji
in Regular Civil Appeal
No.140/2004.
2.
The appellant
in Second Appeal No.147/05
is the
defendant in Regular Civil Suit No.41/2001 before the Civil Judge, Jr.
Division, Sattari at Valpoi and the respondents are the plaintiffs in the
said suit. The plaintiffs filed the said suit for declaration, permanent
injunction and for correction of survey records. The plaintiffs claimed
3
title to the property known as “Santonio Vaddo” situated
in the
Village of Velus of Sattari Taluka, Goa surveyed under No.85, sub-
division 2 of Village Velus.
The above suit was contested by the
defendant and after appreciating the evidence led by the parties, the
trial Court dismissed the suit holding that the plaintiffs had not proved
their title or possession in respect of the suit property and, on the
contrary, the defendant had proved her possession in respect of the
suit property. The appeal preferred against the judgment and order of
the trial Court
being Regular Civil Appeal No.140/2004 has been
partly allowed by the appellate Court and the appellate Court has
directed insertion of the
names of the plaintiffs
in Form I & XIV, in
other rights column as occupants of one room of
dwelling house
situated in the suit property.
3.
Having heard the learned Counsel for the parties, I do not
find any merit in Second Appeal No. 162/2005 filed by the plaintiffs.
However, Second Appeal No.147/2005 filed by the defendant
admitted on the following substantial question of law :
1. After having held that the defenda n t / a p p ella n t
is owner in posses sion
of the suit property and
the suit house existing therein, whether the
appellate
vested
Court
has
exceeded
jurisdiction
in it by ordering that the name s of the
responde nt s /
plaintiffs
should be inserted in
is
4
other rights colum n
in the survey records as
occupa n t s ?
3.
With the consent of the learned Counsel appearing for the
parties, both these appeals are disposed of at the admission stage itself.
4.
Mr. Menezes, learned Counsel appearing for the appellant in
Second Appeal No.147 / 0 5
given the
finding
sub mitted that the appellate Court having
that the appellant is owner in posses sion of the suit
property, had no jurisdiction to direct that the name s of the responde n t /
plaintiffs
shall be inserted
in Form I & XIV
in other other rights
colum n , as occupa n t s in respect of one room of the dwelling house
situa ted in the suit property.
According to the learned Counsel,
the
appellate Court ought not to have directed insertion of the name s of the
respon de nt s / p l a i n tiffs
patently
illegal.
in the survey records
and such an
exercise is
In suppor t of his submis sion, the learned Counsel
relied upon the judgmen t in the case of Narayan Mugu Teli (since
decea s e d) vs. Ramc han dra Mugu Teli and ors.,
2004(3) ALL MR 880.
The learned Couns el further submitted that the reliefs of declaration and
inju nction having been refused to the plaintiffs, the appellate Court had
no jurisdiction to
order
survey records and unless
title,
the Civil Court
insertion
of the names of the plaintiffs in
a declaration is given by the Court regarding
has no jurisdiction
to direct the Revenue
Authorities to insert the name of a person in revenue records.
5
5.
Per contr a, Mr. Kansar, learned Counsel appeari ng for the
respon de nt s sub mitted that
both the Courts having found that the
plaintiffs were in occupa tion of
one room, the appellate Court was
justified in ordering insertion of the name s of the plaintiffs in the survey
records.
He further submitte d that
in giving findings against
and posses sion
concer ned.
Court
both the Courts below have erred
the responde n t s / plaintiffs in so far as title
of the suit property as well as
the suit house is
The learned Counsel further sub mitted that the appellate
ought to have at least granted injunc tion against the defenda n t
from distur bing
room
posses sion of the plaintiffs in respect of the said one
except by following due process of law.
In suppor t of his
sub mis sion, the learned Counsel relied upon the Ju dgme n t of this Court
in
State of Goa and ors vs. Maruthi Sinai alias Ananda Nilconta
Sinai Narcorni Surlekar and others, 2001(2) Goa L.T. 310.
6.
Coun sel
I have considered the sub mis sion s
for the parties.
made by the learned
I have also peruse d the
Courts below have rendere d concur r e nt finding
records.
Both the
that the defenda nt is
owner in posses sion of the suit property and the suit house existing
therein, except one room in the suit house which is in permissive
posses sion of the plaintiffs. This finding
appreciation of evidence
recorded
is based on proper
produced by both sides and, therefore, cannot
6
be said to be perverse.
However, I find considera ble merit
that
the appellate Court
in the
sub mis sion of Mr. Menezes
jurisdiction illegally in partly allowing the appeal filed by the plaintiffs
by directing insertion of the name s of the plaintiffs
exercised
the
in Form I & XIV in
other rights colum n as occupa n t s of one room of the dwelling house
situa ted in the suit property.
Mr. Menezes is justified in placing reliance
on the judgme nt in the case of Narayan Mugu Teli (since deceas e d) vs.
Ramchandra Mugu Teli and ors., (supra).
judgmen t,
this
Court
while
Mahar a s h t r a Land Revenue Code
dealing
In paragra p h 10 of the said
with
the
provisions
observed thus :
“... It is true that the prayer made in plaint is not
properly worded.
Instead of seeking a declaration of
his title, the responde n t No.1 has prayed for deletion
of the name s of the appellant and other responde n t s
from the record of rights in respect of the suit lands
and to enter his name therein.
function
nor the jurisdiction
It is
neither the
of civil court to issue
direction for making or deleting entries in the record
of rights.
revenue
That is the function
aut horities
Revenue Code.
under
assigned
to the
the Mahar a s h t r a
Land
The proper relief which responde n t
No.1 could have prayed for was declaration of his
title to the suit lands
on the basis
of the Will
executed by deceased Mugu Balu Teli.
obtains
such
a declaration
from
the
Once he
court,
the
revenue aut hority will have to make or correct the
of
the
7
entries accordingly in the record of rights in respect
of the suit lands.
Although, therefore, the appeal is
being dismissed, the order and decree passe d by the
courts below will have to be suitably modified."
In view of the ratio laid down by the learned Single Judge of this Court in
Narayan Mugu Teli's case (supra),
directed
the appellate Court could not have
insertion of the name s of the plaintiffs in the survey records.
To that extent, the appellate Court has
Secon d Appeal No. 147 / 2 0 0 5
allowed.
erred in law.
Therefore, the
filed by the defenda n t deserves to be
The subs t a n ti al question of law framed is answered
in favour
of the appellant.
7.
In so far as
Second Appeal No.162 / 2 0 0 5
preferred by the
plaintiffs is concer ned, I do not find any illegality in the findings
by both the Courts below. recorded
The findings
given
by both the Courts
below, in so far as title and posses sion of the suit property except to the
extent of one room in the suit house which is held to be in posses sion of
the plaintiffs are concer ned, are borne out from the evidence on record.
In so far as the reliance placed by Mr. Kans ar upon the judgmen t of the
High Court in the case of State of Goa and ors vs. Maruthi Sinai alias
Ananda
Nilcon ta
Sinai
Narcorni
Surlekar
and
others
(supr a) is
concer ne d, the same does not advance the case of the plaintiffs. A
peru s al of the plaint discloses that it is not the case of the plaintiffs that
8
the defenda n t is out to disposses s the plaintiffs from the suit room and,
therefore, it cannot be said that there is any cause of action in favour of
the plaintiffs against the defenda n t to seek relief agains t disposse s sion
otherwise tha n in accorda nce with law. The subs t a n ti al questions of law
formulated by the plaintiffs do not arise for consider ation in the prese n t
appeal preferred by the plaintiffs.
7.
In the res ult, therefore,
by the defenda n t is allowed.
Court
Second Appeal No.147 / 0 5 preferred
The Decree passed by the lower appellate
to the extent it directs insertion of the name s of the plaintiffs in
form I and XIV in other rights colum n as occupa n t s
of one room of
dwelling house in the suit property, is quas he d and set aside. Second
Appeal No.162 / 2 0 0 5 preferred by the plaintiffs is dismissed. Having
regard to the facts and circum s t a n c e s of the case,
the parties to bear
their own costs.
A.P. LAVANDE, J.
ssm.
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