Shri Chandreshwar Bhuthanath Devastan of Paroda v. Shri Suburaj Prabhakar Naik & Ors.

10th September, 2008. 19th September, 2008. Date of Pronouncing the Judgment : J U D G M E N T : (Per DHARMADHIKARI, J.) 2

This letters patent appeal is directed against a Judgment and Decree delivered by a learned Single Judge of this Court in First Appeal No.42/1985 and First Appeal No.114/1985. By the Judgment and Decree dated 20.6.1995, the learned Single Judge directed as under :

For the foregoing reasons First Appeal No.42 of 1985 partly succeeds. Accordingly Special Civil Suit No.2 of 1983 is partly allowed and decreed as under : The property Oiterio Porvot as described in the plaint consists of Survey Nos. 86, 161, 161, 128, 127, 126, 116, 115, 114, 87, 88, 81, 82, 83, 84, 85 in Mullem Village; Survey Nos. 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 91, 70, 69, 68, 67, 66, 62 in Paroda Village and Survey No. 54 in village Talvorda as stands demarcated in the plan annexed by the Commissioner, to his report dated 13th February 1992 (Ex. C. Collectively). The property Carea dunna @ Carea galli comprises of Survey Nos. 167, 152 (P) of village Mullem and shown in the same plan (Ex.C collectively) Possession of that part of the property bearing survey No.86 is restored to the original plaintiff-appellant.- Deity. Permanent injunction in terms of prayer (b) of the plaint, restraining Naiks-original defendants- Respondents in appeal from interfering with the property Oiterio Porvot or any part of the property 3 bearing survey No.86. No order for mesne profits and the Appellant- Deity is at liberty to seek enquiry under Rule 12, O.XX of the Civil Procedure Code. Demarcation of the property Oiterio Porvot be got done in terms of Commissioner's report on Loco in execution. To the extent indicated, judgment and decree dated 15th February 1985 of the trial Court is quashed and set aside. Civil Appeal No.114 of 1985 is dismissed and impugned judgment and decree dated 15th February, 1985 of the trial Court is confirmed, dismissing Regular Civil Suit No.66 of 1977.

First Appeal No.42/85 was filed by the appellants which are original plaintiffs in Special Civil Suit No.2/1983. That suit was dismissed by the learned trial Judge by his Judgment and Order delivered on 15/2/85 and the learned Single Judge by the impugned Judgment partly decreed the suit.

First Appeal No.114/85 was at the instance of the defendants in Special Civil Suit No.2/1983 who are respondents before us. They assailed the Judgment and Decree of the trial Court dismissing their regular civil suit being Regular Civil Suit No.66/1977.

The respondents to this appeal have not challenged the Judgment 4 and Decree of the learned Single Judge, in so far as dismissal of their suit is concerned. All that they have done is filing cross objections in the letters patent appeal.

The letters patent appeal was admitted by this Court and it appears that upon Section 100A of the Code of Civil Procedure prohibiting letters patent appeals, being brought into effect on 1.7.2002, a preliminary objection was raised to the maintainability of this letters patent appeal by the respondents. That objection was raised when the appeal reached the stage of hearing and final disposal sometime in September, 2002. By an order dated

18.9.2002, a Division Bench of this Court held that the present letters patent appeal was not maintainable and dismissed the same. Aggrieved thereby, the appellants carried the matter to the Supreme Court and the Supreme Court accepting the correctness of the view expressed by a Full Bench of this Court in Sharad Awasthi vs. Ratnakar Trimbak Pandit, (2004) 3 Mah. L.J. 706, reversed the order of the Division Bench and held that the letters patent appeal is not barred by virtue of Section 100A of the Code of Civil Procedure which is brought into effect from 1.7.2002.

It is, thereafter, that the letters patent appeal has reached hearing and final disposal before us. At the hearing and final disposal, Shri S. G. 5 Dessai, learned Senior Counsel appearing for the respondents once again contended that the present letters patent appeal is not maintainable. He argued that a letters patent appeal is maintainable under Clause 15 of the Letters Patent of Bombay High Court. That clause providing for a letters patent appeal against a Judgment and Decree rendered in a first appeal itself has been repealed by an enactment which is known as “Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986. That enactment was notified on 27.5.1987 and said Notification was published in the Maharashtra Government Gazette dated

4.6.1987. In such circumstances, when Maharashtra Legislature had abolished a letters patent appeal, that abolition Act would, with all force, apply in Goa State, assuming that such an Act has force and operation outside the State of Maharashtra.

Apart from this, Shri Dessai contended that Goa is a separate State. It may be that a Goa Bench of the Bombay High Court was set up in 1982, however, Goa State came into being from 30/05/1987. The Goa State Reorganization Act contemplates a common High Court for the State of Maharashtra and Goa. However, merely because the Act contemplates a common High Court, does not mean that the Letters Patent of Bombay High Court would automatically apply and will be in force in the State of Goa. It is 6 contended that a letters patent appeal will not automatically lie at Goa, before a Division Bench as the Letters Patent of Bombay High Court is in force and applicable only in the areas coming within the State of Maharashtra. Therefore, the High Court, being a common High Court for both the States, does not automatically mean that a Letters Patent Appeal provided by Clause 15 of the Letters Patent of Bombay High Court is capable of being filed and maintainable at Goa. Mr. Dessai has traced the history right from the time when Goa was a Portuguese Colony. He has traced the history right from Indian High Courts Act, 1861, the Letters Patent of Bombay High Court which is applicable Letters Patent, namely 28/12/1862. He has taken us through the Amendment to Clause 15 of the said Letters Patent. Thereafter, he has taken us through the Letters Patent (Amendment) Act, 1948 after India became independent. He has also taken us through the developments after Goa became a territory of India with effect from 20.12.1961. He has taken us through the Goa, Daman and Diu (Administration) Ordinance, 1962 providing for continuance of Portuguese Laws applicable in Goa prior to liberation. He has invited our attention to the Goa, Daman and Diu (Administration) Ordinance, 1962 and more particularly Section 7 thereof. He has also invited our attention to the fact that Section 6 of this Act was repealed with effect from 7.12.1964. 7

Shri Dessai has emphasized the fact that the Judicial Commissioner's Court was set up for the Union Territory of Goa, Daman and Diu, replacing the Tribunal de Relacao and he has invited our attention to the Goa, Daman and Diu Judicial Commissioner's Court (Declaration of High Court) Act, 1964. He submits that with effect from 16.12.1963, Section 7 of the Administration Act, 1962 providing for extension of Bombay High Court is repealed. Shri Dessai has taken us through the High Court at Bombay (extension of Jurisdiction to Goa, Daman and Diu) Act, 1981 and contended that a Permanent Bench of Bombay High Court was established at Panaji, Goa on 30.10.1982, transferring the pending proceedings in the Court of Judicial Commissioner and abolishing Court of Judicial Commissioner. It is in this manner that First Appeal No.114/1985, preferred by the respondent challenging the Judgment and Decree of disposal of Regular Civil Suit No. 66/77, rendered by the Trial Court came to be transferred to this Court. Lastly, he has invited our attention to the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 referred to above.

In such circumstances, Shri Dessai contends that the Goa, Daman and Diu Re-Organisation Act, 1987, forming the State of Goa and stating that there shall be a common High Court for the States of Maharashtra 8 and Goa, and entitled as “High Court of Bombay”, by itself, does not mean that the letters patent appeal would be maintainable. That is his precise submission.

On the other hand, Mr. Usgaonkar, learned Senior Counsel appearing for the appellant, controverting these submissions, has contended that the plea of maintainability of this letters patent appeal cannot now be raised once again after the preliminary objection raised by the respondent is overruled earlier by the Honourable Supreme Court. All preliminary objections and particularly those with regard to the maintainability of the letters patent appeal stand concluded. He submits that the principles of res judicata/constructive res judicata or analogous thereto would apply and the respondents are deemed to have waived the present preliminary objection.

That apart, Mr. Usgaonkar was at pains to point out that this preliminary objection is also without any substance. He submits that if the statutory enactments in the field are properly construed, it would be clear that in view of the 1981 Act, Letters Patent of the High Court, particularly Clause 15 became applicable to the territories of Goa, Daman and Diu. In the light of the 1981 Act, Section 7 of the Administration Act, 1962 was repealed. He submits that, therefore, the Letters Patent Appeal was maintainable. Further, 9 he submits that the Abolition Act, 1987 enacted by the Maharashtra Legislature, was subject-mater of challenge before the Supreme Court. That challenge was raised by one Jaimini B. Chinai and the Hon'ble Supreme Court rendered the Judgment and Order upholding the same in the year 2004- 05 and from 1987 to 2005, the enactment, abolishing the Letters Patent, was not brought into effect in the State of Maharashtra itself. Therefore, the present letters patent appeal filed during the period when the Act was not in force, is perfectly maintainable and must be decided on merits. At this belated stage, the argument on maintainability should not be allowed to be raised. He submits that the letters patent appeal is maintainable because the jurisdiction, authority and the power of the Bombay High Court in the States of Maharashtra and Goa is intact although the Re-Organisation Act terms this Court as a common High Court.

Both sides elaborated the submissions by referring to voluminous material, including Notifications and Enactments. They buttressed their submissions by referring to several decisions of the Hon'rable Supreme Court and this Court. However, during the Course of arguments, we indicated to both sides that in the peculiar facts of this case and that the view that we are taking on merits, it may not be necessary to decide the issue of maintainability of the present letters patent appeal. 10

Mr. Desai, in all fairness, submitted that if this Court is not inclined to interfere with the impugned Judgment and Decree on merits, then, he may not press his objections to the maintainability and may prefer to raise them in an appropriate case. Equally, Mr. Usgaonkar submitted that his reply to the objections raised, may, also not be dealt with in the light of the concession by Shri Dessai. He submits that his arguments on the point of maintainability may also be kept open.

By following the above course of action and with the consent of parties, we propose to dispose off this appeal on merits, rather than deciding the preliminary objection raised to its maintainability. We accept the above statements and clarify that we have not decided the issue of maintainability and the said issue is kept open for decision in an appropriate case.

Now, on to the merits, Shri Usgaonkar appearing for the appellants submits that the appellants, for the convenience sake, can be referred to as “the Temple/Deity” and the respondent as “Naiks”. He submits that a civil suit being Special Civil Suit No. 2/83 was filed by the appellants were aggrieved by the Judgment and Decree of the trial Court, dismissing the suit on the ground that the claim therein is barred by limitation. On all other issues, findings were rendered in favour of the appellant-the Temple and 11 against Naiks, but the Trial Court dismissed the suit on the ground of limitation. He submits that the learned Single Judge has erred in partly decreeing the suit. He submits that when the learned Single Judge has reversed the findings of the trial Court on limitation, then, consistent with the trial Court's findings on other issues, the suit should have been decreed as a whole. He submits that the learned Single Judge has partly decreed the suit by relying upon the report of a Commissioner, appointed during the course of hearing of the first appeal, before him.

Mr. Usgaonkar, submitted that the grievance of the appellant is limited to Survey No.167 and Survey No.152(part). He submits that with regard to Survey Nos.168, 169 and 170, no claim was laid by Naiks. They are not claiming these properties. However, the Commissioner's Report excludes 5 properties in all. Apart from survey Nos. 167 and 152 (part), survey Nos. 168 and 170 also stand excluded. This exclusion is wrongful. The learned Single Judge failed to apply his mind to a very vital document/grant dated 13

10.6.1823. This document and contents thereof are proved. Both sides admit that the said document is exhibited on record of the trial Court. That document and its contents could not have been brushed aside by the learned Single Judge, more so, when the Commissioner admits that he has ignored the contents of these documents. That admission of the Commissioner could not have been omitted from consideration by the learned Single Judge. In such circumstances, that nothing vital has been brought on record, is a conclusion reached by the learned Single Judge, erroneously and without any application of mind. Therefore, it is wholly vitiated.

Shri Usgaonkar was at pains to point out that the Map at page 373 of the record must be seen in its entirety. All boundaries are identified and denoted. He has also invited our attention to the pleadings in Regular Civil Suit No. 66/77 filed by Naiks against the Temple. He has also invited our attention to the evidence led in that suit. He submits that all evidence therein is contrary to the pleadings. That suit was dismissed after trial. A First Appeal therefrom is also dismissed by the learned Single Judge. Principles of finality of orders would come into play inasmuch as no letters patent appeal is preferred by Naiks against that part of the Judgment and Decree of the learned Single Judge. That apart, he has invited our attention to the deposition of one Janabai who entered the witness box on behalf of Naiks. 14 The complaint of Shri Usgaonkar is that the Commissioner could not have reopened the issues which are concluded by the trial Court's Decree in the suit of Naiks. This is an omission which was very vital in his report. Shri Usgaonkar has laid great emphasis on the contents of the Commissioner's Report and has invited our attention to pages 9 and 13 thereof. He submits that once there is no identification of Survey No.86(part) (the property claimed by Naiks), then, it is not permissible to exclude Survey Nos. 167 and

Shri Usgaonkar was at pains to point out that Ground (A) and Ground (C) of the Appeal Memo would show that the learned Single Judge was right to the extent of reversing the findings of the trial Court on the issue of limitation and that part of the Judgment may not be interfered with. However, the conclusion reached thereafter and, more particularly on merits, is vitiated and, therefore, the Judgment and Decree of the learned Single Judge be quashed and set aside.

On the other hand, Shri Dessai, learned Senior Counsel appearing for the respondent-Naiks invited our attention to the cross objections. He submits that by raising cross objections, it is open for Naiks to argue that the finding of the learned Single Judge on the issue of limitation is 15 vitiated and contrary to law. He submits that the learned Single Judge has ignored the fact that substantive and only relief claimed by the Temple in its suit, is of Declaration. That relief was, admittedly, time-barred. That relief became available to the Temple after the proceedings before the Mamlatdar ended in 1971. By virtue of Article 58 of the Limitation Act, 1963, a suit for declaration could have been filed within 3 years, as the right to sue accrued from the date the Mamlatdar's Order was received. However, the Temple chose to remain silent and filed a suit for declaration in the year 1983. Therefore, ex facie, the claim was time-barred.

Alternatively, it is urged by Shri Dessai that the learned Single Judge has rightly held that the Commissioner's Report is the only substantive piece of evidence. He appointed the Commissioner by exercising his power under Order 41, Rule 27(b) of the Code of Civil Procedure, 1908 and by consent of parties. Once he has exercised such a power and appointed a Commissioner, it cannot be said that the appointment of Commissioner is traceable to Order XXVI, Rule 9 of the Code of Civil Procedure alone. Assuming that the learned Single Judge was right and the Commissioner's appointment could be traced to Order 26, Rule 9 of the Code of Civil 17 Procedure, then, the report of the Commissioner will have to be seen with other evidence. There being no other evidence on record, the Judgment is vitiated because it solely relies upon the Commissioner's Report. The suit could not have been decreed by taking into consideration the Commissioner's Report. Mr. Dessai contended that respondents also objected to the Commissioner's Report, but he fairly concedes that there is no cross examination of the Commissioner. Despite this, as the appeal preferred by the respondents-Naiks has been dismissed, the same conclusion should have been reached as far as appellant's suit is concerned. That finding could have been reached despite the Court Commissioner's Report. Today, the learned Single Judge has decreed the suit by undertaking a course which is not permissible in law. The Decree passed by the learned Single Judge is much beyond the prayers and what he has done is granted a declaration in favour of the appellant, although that relief was time-barred. Apart from this, by considering prayer clause (c) of the plaint in isolation, the learned Single Judge has granted altogether a new relief and converted the suit for declaration and permanent injunction into a suit for possession on the basis of title. For all these reasons, the Judgment of the learned Single Judge must be quashed and set aside. Resultantly, both suits deserve to be dismissed.

On the argument of limitation, Mr. Usgaonkar rejoined and 18 urged that this is an instance where the issue of title is framed, as that alone would be the basis on which the relief of possession can be granted. The plaint must be seen as a whole and merely because prayer clause (c) is granted, does not mean that the declaration is granted indirectly. He submits that it is well settled that prayer for declaration is unnecessary if possession is sought on the basis of title. In any event, inquiry into the title will still be necessary. Further, prayer clause (c) is a substantive relief and use of the word “alternatively” is indecisive. For these reasons, the letters patent appeal be allowed.

Mr. Usgaonkar, has relied upon the following decisions in support of his contentions : 1) Satyadhyan Ghosal and others V/s Smt. Deorajin Debi and another (AIR 1960 Supreme Court 941), 2) Bento de Souza Egipsy (dead) by Lrs. vs. Yvette Alvares Colaco and ors. (2004) 13 SCC 428; 3) Sanjay Z. Rane and ors. vs. Saibai S. Dubaxi (Dead) through Lrs. (2004)13 SCC 439; 4) Ramkhelawan Sahu V/s Bir Surendra Sahi and others (AIR 1938 Patna 22), 19 5) Uchhab Gouda and others v/s Ganesh Panda (AIR 1963 Orissa 71)(V.50 C 29), 6) Smt. Indumatiben Chimanlal Desai V/s Union of India and another, (AIR 1969 Bombay 423) (V 56 C 70), 7) M/s Supreme General Films Exchange Ltd. (In appeal and Spl. Leave Petns.) V/s 1. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and others (in Civil Appeal No.1041 of 1968): 2. Her Highness Tej Suryawanshji and another (in both the Spl. Leave Petns.) (AIR 1975 Supreme Court 1810), 8) The State of Maharashtra and others V/s Glaxo Laboratories (India) Pvt. Ltd. and another (1979 Bom. C.R. 321), 9) Corporation of the City of Bangalore V/s M. Papaiah and another (AIR 1989 Supreme Court 1809), 10)Tanaji Mosso Shetkar, alias Tanaji Babaji Shetkar, & Ors V/s Rukmini Pandu Shetkar (1991(2) Goa L.T. 153).

Mr. Dessai has relied upon the following decisions to support his case : 1) Jamshed N. Guzdar V/s State of Maharashtra and others, (With Civil Appeal No.2529 of 1992) Bombay Civil and Sessions Court Bar Association V/s Jamshed N. Guzdar and others, and others. (With 20 Civil Appeal No.2530 of 1992) State of Maharashtra V/s Jamshed N. Guzdar and others, (With Transfer Cases (C)Nos.8-11 of 1989) Jaimini B. Chinai and others V/s State of Maharashtra and others, (With Civil Appeals Nos.1222-24 of 1985) State of M.P. V/s Perfect Pottery Co. Ltd. and others (2005) 2 Supreme Court Cases 591, 2) State of Maharashtra V/s Kusum Charudutt Bharma Upadhye (O.C.J. Appeal Nos.308 of 1979 and 479, 480 and 499 of 1980)

We are relieved from the task of deciding the correctness of the learned Single Judge's findings in so far as First Appeal No.114/1985 is concerned. That First Appeal is by the respondents in the present letters patent appeal and they challenged dismissal of their suit being Regular Civil Suit No.66/77. Consequent upon the dismissal of their first appeal they have not filed any letters patent appeal. We have no hesitation in concluding that the Judgment and Decree of the learned Single Judge, dismissing this suit, is final. In fact, there is no serious dispute on this aspect between the Counsel appearing for the parties.

All that we have to see is whether the learned Single Judge is right in his conclusion on the point of limitation and merits. For the purposes of deciding the present letters patent appeal, it would be necessary to refer to the pleadings in the Civil Suit No. 2/83. 21

The suit was filed by the Devasthan and a plea raised was that the Devasthan/Temple is owner in possession of the property “Oiterio Porvot” or “Oiteiro Chandranath” more particularly described in paragraphs (1) and (2) of the plaint. After setting out that the Temple is situated in the property, it has been contended that the property was described in the Bye-Laws of the Temple which had been published in the Government Gazette on 13.3.1916. This property is described in the Book of Inventory of the Temple. It was urged that the property was allotted to the Devasthan by the Government on

6.8.1923. That the possession of the property is with the Devasthan since times immemorial. That the northern boundary of the hill has been described in the document of perpetual lease by giving the names of different fields at the foot of the hill. The hill is at the same place towards the north-east and separated by a path way which was existing in the olden times and is known as “PONNI PAZ”. This is also shown on the plan annexed to the plaint. This way was leading to Village Curtorim. The way is still identified. After pointing out that different places on the hill have 108 Tirthas, plot Nos. 86 and 167 were found described as “Tirtha” in Sree Skand Puran.

It is contended that there is an auction held every year of dried 22 trees (Zolcatti) on the hill which is given to different persons. After referring to the portion for which the auctions were held and the details thereof, it is alleged that on some portion of Survey No.86, the Temple allowed one Satish G. Dessai to extract metallic stones since 1971. It is urged that by Agreements dated 12.9.1977, the plaintiff allowed Damodar Bhatikar to extract metallic stones from the portion under No.86. It is urged that Naiks are laying a claim over the entire portion of the property surveyed under No.167 and on a part of survey No.86 on the ground that it is part of the property “Careaduna” or “Careagally” under Matriz No.313. It is urged that the property purchased by the defendants and other properties lie towards west of the property “PONNI PAZ” and there cannot be any claim or right over survey nos.86 and 167 and on the part of Survey No.152 beyond the property “PONNI PAZ” i.e. towards the west and north of the same. After giving measurements, it is set out that the Naiks filed a suit being Regular Civil Suit No.6/1977 for injunction against the Temple and two others and it is urged that one Babu Sitaram Naik, who was the grandfather of the defendants approached the Committee of the Temple and requested to lease him some land in survey No. 167 for extraction of metallic stones. The Temple committee did not accept the request. It is in such circumstances that a complaint before the Mamlatdar was made when Babu Naik trespassed on the property bearing Survey No. 167 in September, 1971 and started extracting 23 the stones in one place identified as Quarry No.1 in the plan annexed to the plaint. The complaint was filed on 3.9.1971 and after inquiry, the Mamlatdar passed an order on 23.12.1971, advising the Temple to file a suit in the Civil Court. That is why, despite the proceedings before the Mamlatdar and as Babu Naik was extracting stones, although the plaintiffs claimed to be in possession and enjoyment of the entire property, that the plaintiffs urged that the Naiks had no claim over survey Nos. 86 and 167 and the portion of the property survey No.152.

It is urged that since the death of said Babu Naik, the defendants are now extracting the stones at five places in Survey No.167 within the plaintiff's property. All these five places are marked in red colour and numbered as Quarry No.1, Quarry No.2, Quarry No.3, Quarry No.4 and Quarry No.5 on the plan annexed to the the plaint in yellow colour. The area of these five quarries is 17,850 sq. metres.

It is the contention of the plaintiff that the encroached area is part and parcel of the plaintiff's property and it is absolutely necessary for the enjoyment of the Temple. According to the plaintiff, the defendants have no right, title and interest over the encroached area and they are rank trespassers. The cause of action to file the suit, according to the plaintiff, arose on

23.12.1971. 24

It is in such circumstances that the prayers in the plaint are, firstly, for a declaration that the lands under Survey No.167 and 152 of Mullem Village and the land towards west of “PONNI PAZ” as shown in the map belongs to the plaintiff/Temple; second, for permanent injunction restraining the Naiks from interfering in the portion of the property surveyed as Survey Nos. 167 and 152 and extracting the stones from the encroached area and alternatively, the plaintiff be restored back the possession of the encroached area by said Babu Naik. There is a small amendment made to the plaint, but we are really not concerned with it. This is the suit which was filed on 17.1.1983.

Apart from the usual pleas raised in the written statement, Naiks contended that the suit is barred by Law of Limitation, as far as prayer (a) is concerned.

The learned Trial Judge on the rival pleadings, framed issues and for the purposes of the present letters patent appeal, we are not concerned with all the issues, save and except, issues No.10 and 12. Whereas issue No.10 pertains to the entire claim of the the plaintiff being barred by Law of 25 limitation as urged by Naiks and the burden was on them to prove the same, Issue No.12 is restricted to the claim in prayer clause (a) being time-barred and even that was to be proved by Naiks.

The Trial Court held, in an elaborate Judgment, that the claim is proved on merits, but is time barred inasmuch as the relevant Article of the Limitation Act is Article 58. The learned trial Judge, in paragraphs 28, 29 and 30 of the Judgment held that it is not possible to accept the contention of the Advocate appearing for the Temple that prayer clause (c) is an independent or a substantive relief. The plaint, as a whole, has to be examined to determine whether the suit is really one for possession and declaration or other relief claimed is unnecessary and mere surplusage. In the instant case, the suit by the Temple has been filed after 12 years from the date of the Mamlatdar's Order. It ought to have been filed within 3 years from the same as per Article 58 of the Limitation Act. Declaration is the main relief sought by the Temple and since the relief of declaration, according to the said Article, could have been claimed when the right to sue accrued i.e. within 3 years from 1971, the claim is time-barred. The learned Judge has rejected the argument that there are alternate reliefs and as far as prayer clause (c) is concerned, it could be granted independently of the claim for declaration. Of course, for grant of that, some inquiry into the status of the Temple may be necessary. 26 The relief being within the period of limitation prescribed for such a suit, the same could have been granted. In other words, the argument that prayer clause (c) is substantive relief and the relevant Article as far as that relief is concerned is Article 65 of the limitation Act, 1963, has been rejected.

The learned Single Judge heard both sides, at length. Even on the issue of limitation, his Judgment is also very elaborate. The relevant paragraphs as far as pleas on limitation are concerned, are paragraphs 14 and 16 of the impugned Judgment. The learned Single Judge has held that the plaint averments would go to show that the plaintiff had instituted the suit in the year 1983 and, therefore, it could never obtain a declaration in respect of their right which was infringed by Babu Naik, grandfather of the Naiks sometime in 1971. The learned Single Judge was of the opinion that merely because the Deity is not entitled to a declaration as the suit is instituted beyond three years, but it is entitled to restoration of possession. The learned Single Judge referred to Order 7, Rule 7 of the Code of Civil Procedure and held that it is permissible for a party to seek an alternate relief. He held that the relief in the suit being such different set of Articles under the Limitation Act, 1963 providing for distinct periods would apply. He held that one of the claims may be time-barred; whereas the other could be within limitation and this can happen in one single suit. In such circumstances, the 27 Court must find out whether alternate relief sought for is within limitation or not. That was not done by the trial Court and, therefore, there is apparent error in its Judgment. The trial Court did not bother to find out that whether the Temple was entitled to alternate relief of possession. That suit is instituted by the Temple claiming this relief on the basis of its title. Therefore, if it is within the period of limitation, then, even if the Temple fails in seeking the declaration in its favour, yet, it can seek the alternate relief of possession.

The learned Judge, in paragraph 17, held thus :

17. Coming back to the facts, it is clear that the deity reacted against the act of trespass and encroachment sometime in September, 1971, the suit has been undoubtedly instituted in January 1983. It is, therefore, clearly within a period of 12 years and falls within Article 65 of the schedule of the Limitation Act, and, therefore, the suit could not have been rejected for recovery of possession except on merits. The sum total therefore, of Issue Nos. 10 and 12 is that the deity's suit though must fail in relation to prayer for declaration, it could not have been dismissed on the alternate prayer for restoration of possession as the same is within time.

Shri Dessai submits that this conclusion of the learned Single 28 Judge is vitiated because the prayer for possession (prayer clause (c) ) is an ancillary prayer to the relief of declaration and permanent injunction and not a substantive relief by itself.

We are unable to accept his contention for more than one reason. It is well settled that applicability of a particular Article of the Limitation Act and the period prescribed thereunder for filing a suit, must be considered in the backdrop of the pleadings. Ultimately, the pleadings have to be seen as a whole and if they are so seen and considered, then, a conclusion can be reached with regard to the applicability of an Article. In the present case, the learned Single Judge has perused the pleadings and which we have also done with the assistance of the learned Senior Counsel appearing for the parties. We do not find that the findings of the learned Single Judge are vitiated. We have reproduced the relevant paragraphs of the plaint. The Temple projected, in specific terms, a case of encroachment by Naiks and asserted that it had a title on the portion which is allegedly encroached. It desired that the encroachment should be removed. While asserting its title, it prayed that if the Court finds that the encroached portion is in possession of Naiks, then, the possession thereof be restored to them.

From a perusal of the pleadings, we find that the issue of 29 encroachment is projected independently and the relief is claimed on that basis. Therefore, the encroached land specifically being put in issue and the relief of restoration of possession being claimed so also evidence led by the parties on that base, it will not be possible to hold that the claim of the Temple in its entirety is time-barred. It is not possible to enter into any larger controversy inasmuch as there is ample case law in the field. In a decision in the case reported in Munshi Manzoor Ali Khan (Noor Khan) and ors. vs. Sukha Bansilal and ors. , 1971 Mah. L.J. 571, the Hon'ble Supreme Court has held that it is possible that out of several claims in a suit, some may be within limitation and some may be time-barred. The claims which are within the period of limitation, can always be considered and granted. So also, the decisions which are relied upon by Shri Usgaonkar before the learned Single Judge and also before us, amply demonstrate that the substance of the claim must be considered. It may not be necessary in a given case to hold that the relief of declaration of title having not been claimed, that the suit must be dismissed on that ground alone. The Supreme Court has considered this aspect in the decision reported in Corporation of the City of Bangalore V/s M. Papaiah and another (supra). Further, the same learned Single Judge has, in another case, considered the pleadings and held that the relief cannot be denied on the ground that the claim is barred by Law of Limitation. If the suit of the plaintiff is based on title, then, there is no need for the Court to insist 30 that the plaintiff must seek a declaration of title and only then his claim for possession can be considered and granted. The very decisions which have been relied upon before the learned Single Judge by Shri Usgaonkar, have been relied upon in that decision as well.

In our view, it is not possible to uphold the plea of Shri Dessai that in the peculiar facts of this case, prayer clause (c) claiming possession is merely ancillary or incidental to prayer clauses (a) and (b) and, therefore, the same also is time-barred. In our view, on a plain reading of the plaint and the paragraphs, more particularly reproduced above, the claim although made worded as “Alternate” is a substantive relief and it was not necessary to seek any declaration of title while claiming the same. Assuming that the same is so required, yet, before the relief of restoration of possession of could be granted in this case, it was necessary to initiate an inquiry into its title and that having been done, it cannot be said that the claim for restoration of possession vide prayer clause (c) was time-barred. We agree with the learned Single Judge that this claim could have been granted.

The findings and the conclusions of the learned Single Judge on the issue of limitation are based upon consideration of the pleadings and the material placed on record. They cannot be said to be perverse or vitiated by 31 errors apparent on the face of the record in any manner. In such circumstances, there is no reason to disturb this finding of fact in our jurisdiction under Clause 15 of the Letters Patent and we have no hesitation in confirming the same.

As far as claim of the Temple that the learned Single Judge erred in relying upon the Commissioner's Report is concerned, we are of the view that the appointment of the Commissioner was made by an order dated

2.8.1991. That order has been perused by us. Very elaborate reasons have been assigned by the learned Single Judge while appointing the Court Commissioner. Although the order refers to the provisions of Order 41, Rule 27 of the Code of Civil Procedure, yet, what the learned Single Judge has done is with the consent of parties, decided to take additional evidence in the matter by appointing an Expert. The Expert was chosen with the consent of the parties. The Expert chosen is a Senior Inspector of Survey, attached to the Directorate of Land Survey. Further the Director of Land Survey was requested to give all assistance, including appointing a team for the purposes of survey. While appointing the Commissioner, the Court has observed that the state of the oral and the documentary evidence on record is such that it is not possible to reach a definite conclusion. To avoid any injustice and to find out as to which of the properties belong to the Temple and to Naiks, that the 32 Court passed an order on 2.8.1991.

This is because the property consists of several hills and plane lands. There are some documents which suggest that the descriptive boundaries show discrepancies and, therefore, survey of the land would be necessary, so that the properties are identified correctly. The appointment of the Commissioner is made after the learned Single Judge has scrutinized the oral and documentary evidence on record, in detail. While it is true as contended by Shri Usgaonkar that the learned Single Judge has referred to the documents, including Exhibits P-5, P-7, P-8, P-10 and P-11, so also he has held that, the documents produced by Naiks (Exhibits D-9A and D-10) make it difficult for them to deny that the property had not been with the Temple since 1823, that Naiks in their pleadings in their own suit, as well as in the written statement filed in Special Civil Suit No.2/83, never disputed the title of the Deity, yet, after holding so in paragraphs 41 and 42, the difficulty that was faced by the learned Single Judge, has been enumerated by him in paragraph 44 of the impugned Judgment. The learned Single Judge came to a conclusion that the evidence led is unsafe to determine boundaries and more particularly because the properties were hilly in nature. He held that the documents do not assist the Court. It is in such circumstances that the Court Commissioner has been appointed.

Once there is no dispute between the parties that the Court 33 Commissioner has been appointed in the peculiar facts by the Appellate Court, after detailed order was passed, then, we are of the view that the findings and the conclusions in his report deserve to be accepted. More so, when enough opportunity was given to the Temple/Deity to raise objections and cross examine the Commissioner.

The Report of the Court Commissioner who is a Senior Inspector has also been perused by us. The Commissioner says that his assignment was to locate the property “Careaduna” or “Careagally” of the plaintiff in Civil Suit No.66/1977, so also to locate the property “Oiteiro Parvot” or “Oiteiro Chandranath” of the Temple- Deity. That assignment he has carried out after going through the documents supplied by the Temple/Deity, as also by Naiks. He has not rested his conclusions only on the analysis of the documents, but has specifically relied upon the site visit and inspection of entire suit area on different dates in presence of both the parties and a team of Head Surveyor and four Surveyors who were deputed for verification and survey of the area claimed by both the parties. Documents are fairly old. The documents and the position at site was at variance. The learned Single Judge found that the documentary and oral evidence recorded before the Trial Court contains no clear indication about identification and location of the properties. While there are assertions of both sides which are based upon certain events and 34 contents of documents, yet, in their cross examination before the trial Court there are certain admissions or vague statements which are not of the nature that their version cannot be relied upon. It was not safe to render conclusive findings on the basis of the oral and documentary evidence before the Trial Court. The position at site had to be ascertained considering the nature of the properties. Therefore, after site visits a detailed report has been submitted by the Court Commissioner, we find that there is no error committed by the learned Single Judge in relying upon it as substantive piece of evidence.

It is not possible to agree with Shri Dessai that the Commissioner's evidence is not substantive or capable of being relied upon by itself. It is not as if the learned Single Judge has gone completely by the Commissioner's Report. The learned Single Judge's findings and conclusions are based upon his earlier observations with regard to the contents of the documents. He has considered the evidence before the trial Court and thereafter, appointed a Court Commissioner. The Court Commissioner is undisputedly an expert in the field of survey. He was assisted by a team of Surveyors. He has visited and inspected the site on several occasions and verified the position from the documents produced, including maps and survey earlier carried out and prepared. Therefore, there was nothing wrong in relying upon his report and conclusions. More so, when Naiks having not 35 cross examined him despite filing objections. Further, Naiks' cross objections in this letters patent appeal cannot be considered on this aspect because their own suit has been dismissed by the Trial Court and the Order of dismissal is confirmed in the first appeal by the learned Single Judge. They have not assailed the findings and conclusions of the learned Single Judge, dismissing their suit being Reg. Civil Suit No.66/1977. Therefore, it now not open to them to urge that the Commissioner's Report is not a substantive piece of evidence.

Equally, it is not open for the appellant-Temple to urge that the Commissioner's Report alone has been considered, ignoring other material. That is not a correct and proper reading of the Judgment of the learned Single Judge. The learned Single Judge has elaborately discussed on the oral and documentary evidence on record and, thereafter, concluded that it is insufficient and inadequate for identifying and locating suit properties which are hilly in nature, we do not find that the findings and conclusions of the learned Single Judge in this behalf are vititated by the total non-application of mind or perverse. The Commissioner has been appointed with the consent of even the Deity/Temple. It cannot then urge that his evidence is not substantive or cannot be relied upon exclusively. That apart, it has been relied upon by the learned Single Judge, in addition to the documentary and oral evidence placed on record. 36

The learned Single Judge was right in his conclusion that despite opportunity to raise objections to the Commissioner's Report and cross examining him extensively, nothing vital has been pointed out, so as to contradict or disbelieve the report. The contradictions, if any, are minor, is the conclusion. We have perused the objections to the Report of the Commissioner. We have also perused his cross examination by the Temple/Deity. While it is true that the Commissioner admits that in the description of the property expression “pornem par” is omitted in his report although it is found in the documents (Exhibit P-5), mere omission to refer the contents of the document in the report, is not fatal. Shri Usgaonkar, learned Senior Counsel also relied upon the answer given by the Court Commissioner to a question and admission that the location of “pornem par” is omitted. We agree with the learned Single Judge that this omission does not have any bearing on location of the property of the Temple. The Commissioner admits that line A-B shown by him tallies with the so called passage “pornem par”, yet, the location and demarcation of the properties “Oiteiro Porvot” or “Oiteiro Chandranath” of the Temple and “Carea Dunna” or “Carea Galli” of Naiks has been correctly made by him in the plan. It is not possible for us to agree with Shri Usgaonkar only on the basis of some stray statements and 37 admissions by the Court Commissioner that the location and identification done by the Commissioner at site is erroneous or vitiated only because of the omission. The Commissioner was supplied with all documents concerning and relating to the properties in question, as also the adjoining properties, by the parties. We agree with the learned Single Judge's conclusion in paras 49 and 50 of the impugned Judgment that the Report of the Commissioner cannot be brushed aside merely because some omissions have been pointed out therein. The exercise carried out by the Commissioner of identifying and locating the properties at site, in the presence of parties, so also demonstrating them on a plan (record page 373), cannot be questioned, leave alone set aside or ignored by relying on some minor omissions. The same is in consonance with the contents of other material as well.

Therefore, we are of the view that the identification of the properties by the Court Commissioner is proper. The ultimate findings and the conclusions in para 51 of the learned Single Judge's Judgment are in consonance with the findings of the Court Commissioner. The Commissioner has rightly concluded that the “Carea Dunna” or “Carea Galli” comprises of survey Nos. 167 and 152(part) of Village Mullem; whereas the property “Oiteiro Porvot” or “Oiteiro Chandranath” comprises of the survey numbers at page 12 of his report (page 115 of paper book). He has given reasons for 38 the conclusions with regard to “Oiteiro Porvot” or “Oiteiro Chandranath”. Thus, substantial part of the property as described in the plaint is held to be “Oiteiro Porvot” or “Oiteiro Chandranath”; whereas claim of Naiks over survey No.86, has been completely disbelieved and all that is concluded is “Carea Dunna” or “Carea Galli” comprises of Survey No.167 and 152 (part). All documents, including matriz and sale deed have been considered by the Court Commissioner. The learned Single Judge was, therefore, right in partly decreeing the suit of the Temple/appellant and restoring to it, a part of Survey No.86, as is claimed by it in prayer clause (c) and granting a permanent injunction in terms of prayer clause (b). The clarifications given by the learned Single Judge are also in tune with the contents of the Commissioner's Report.

For all these reasons, we are of the view that there is no substance in the contention of Shri Usgaonkar that survey Nos. 167 and 152(part) of Village Mullem should have been held to be part of “Pornem Par” and, therefore, belongs to the Temple/Deity.

In result, the letters patent appeal is dismissed, subject to the clarifications issued above. In the circumstances, there will be no order as to costs. We repeat that we have decided this appeal on merits and the issue of its maintainability as raised before us is kept open. S.C . DHARMADHIKARI, J. ssm. R.C. CHAVAN, J. .