D.G. Deshpande, J.
1. This first appeal is directed against the judgment and decree in Civil Suit No. 125/81 passed by the learned District Judge, South Goa, Margao, vide judgment dated 30th April, 1994.
2. The plaintiffs/respondents herein filed a suit for declaration that the plaintiffs are exclusive owners in possession of the immovable property known as 'ORNACODIL NOCODBAB' or 'ORNICODIL NOCODBAB TICAN', situated at Netorlim of Sanguem Taluka. The plaintiffs claimed ownership on the basis of two sale deed dated 11th May, 1970 and 11th July, 1970 and a deed of ratification dated 18th July, 1974, all of which were duly registered in the office of the Sub-Registrar, quepem. They also relied upon the description of the property given in the said deeds. According to them, the property consisted of forest produce, including coconut groves, cashew groves, jackfruit and other fruit-bearing trees. Further, according to the plaintiffs, the property was surveyed by the Government in 1971, but two years before the filing of the suit the Government Forest Department felled and removed all the forest produce existing on their land known as 'MATTONIDONGOR', which is adjacent to the plaintiff property. The plaintiffs further learnt that a contractor of the forest produce from the Government/appellants had entered the property and had started cutting the forest produce and timber exiting in the Northern and Western sides of the suit property. Then the plaintiffs made enquiry and came to know that the original defendant No. 3 had advertised the sale of the forest produce and this act of the Government and contractor was illegal and, therefore, the plaintiffs filed the suit for a declaration that they are exclusive owners in possession of the immovable property as stated in para 1 of the plaint and of all the timber and forest produce existing therein and the contract entered into with the defendant No. 5 by the Government for the sale of forest land is null and void and for further consequent permanent injunction.
3. The claim of the plaintiffs was opposed by the defendants in all respects. According to the Government, it is a forest land and the so-called title deeds do not clothe the plaintiffs with the right of ownership and the plaintiffs were never in possession. Thereafter, the trial Court framed issues, parties went to trial and ultimately the trial Court partly decreed the suit, i.e. the prayer for declaration about the plaintiffs ownership in respect of the suit property, was dismissed. However, the plaintiffs were held to be in possession of the suit property having a title of title to it and, therefore, their prayer for permanent injunction to restrain the defendants, their agents, servants, etc., from interfering in the suit property, was granted. It is against this judgment and decree that the present appeal is filed.
4. It is next to be clarified that in the trial, the plaintiffs had not asked for any temporary injunction and none was consequently granted to the plaintiffs.
5. I have heard learned Government Advocate Shri Bharne, for the appellants and learned Senior Counsel Shri M.S. Usgaokar, for the respondents. Learned Government Advocate for the appellants contended that the judgment of the trial Court is wrong because once the trial Court came to the conclusion that the plaintiffs were not entitled for a declaration of ownership, then there was no justification in holding that the plaintiffs have a title of title to the suit property. He also contended that the plaintiff were never in possession of the property and the fact was amply proved on record because the Government after public notice and notice in the Government Gazette, had auctioned the forest produce in the suit land which was given on contract to the sub-contractor and who had acted under the contract and this was sufficient to hold that the plaintiffs were not in possession. He also contended that since the prayer for declaration of ownership was rejected and since the original plaintiffs had not filed cross-objection, the plaintiffs were not entitled to be heard in that regard i.e. for grant of declaration of ownership and for consequent change in the decree passed by the trial Court.
6. On the other hand, Shri Usgaokar contended that the plaintiffs had proved title on the basis of two sale deeds and one ratification deed, wherein the property was correctly described and where also relying upon Exhibit 40, a document which was a survey plan prepared by the Government agency, which proved that the property was surveyed and description given in the plaint, Exhibit 40 correctly tallied with the description given of the property of the plaintiffs as given in the sale deed and, therefore, according to him, Exhibit 40 and the documents of title were sufficient to hold that the plaintiffs were the owners of the property.
7. Regarding not filing of cross-objection, challenging that part of the decree wherein the trial Court dismissed the claim of the plaintiffs for declaration of ownership, Shri Usgaokar contended that under Order 41, Rule 22 of the Code of Civil Procedure, as amended in 1976, it was not necessary for the plaintiffs to file a cross-appeal, but they could challenge the finding in an appeal filed by the State. He relied upon a judgment of the Supreme Court in Ravinder Kumar Sharma v. State of Assam & others, : AIR1999SC3571 , in support of his contention.
8. Since the point relating to not filing of cross-objection is based on the provision of law, it is necessary to deal with the same objection at this stage. Order 41, Rule 22 of the Code of Civil Procedure reads as under:---
'Upon hearing, respondent may object to decree as if he had preferred separate appeal.---
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation.---A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of the respondent.'
9. In the case before the Supreme Court referred to above, the appellant was the plaintiff, who had filed a suit for damages for malicious prosecution against the three defendants, the State of Assam and two Police Officers for recovery of various amounts shown in Schedules A, B and C. The trial Court dismissed the suit. In appeal, the High Court granted relief only in regard to pecuniary damages in Schedules B and C, but dismissed the claim for non-pecuniary damages in Schedule A. The plaintiff, therefore, filed appeal to the Supreme Court upon the claim that was not granted and the defendants did not file any appeal because they had accepted the decree for pecuniary damages as per Schedules B and C, nor did they file any cross-objection. When, however, the original defendants before the Supreme Court tried to challenge the finding of the High Court in regard to the prosecution, being without reasonable and probable cause, so far as it related to non-pecuniary damages in Schedule A, the appellant contended that when the defendants accepted the decree of pecuniary damages relating to B and C Schedules and when the said decree was based on the same finding and when neither appeal nor cross-objection was filed, the defendants had no right to attack those findings because they had become final and operated as res judicata.
10. It is in that background of the matter that the Supreme Court held, after considering the original provision and the amended provision of Order 41, Rule 22 of the Civil Procedure Code, that the defendants in appeal can, without filing cross-objection, attack an adverse finding upon which a decree in part has been passed against the respondents for the purpose of sustaining the decree to the extent the lower Court had dismissed the suit against the defendants and that the filing of cross-objection after the 1996 amendment was purely optional and not mandatory.
11. It was contended by Shri Usgaokar that in view of the judgment of the Supreme Court, it was not necessary for the respondents to file cross-objections regarding that part of the decree by which the trial Court rejected the claim for declaration of ownership.
12. According to him, the facts of the case before the Supreme Court are different from the present facts. In that case, a certain part of a decree was not challenged by the defendants as it was accepted by them and still they wanted to question a particular finding when the matter went to the Supreme Court in appeal at the instance of the plaintiff. In the instant case, this appeal is filed by the respondents against a decree for permanent injunction. The prayer of the plaintiffs for declaration of ownership was rejected by the Court and eventhough the plaintiffs/respondents can challenge the findings in that regard while opposing the present appeal, it would have been in the fitness of things that they had preferred cross-objection, or filed appeal against the refusal of the trial Court to grant declaration of ownership in their favour.
13. Even assuming that the respondents still have a right to challenge the finding on the basis of the aforesaid Supreme Court decision, the question is whether the plaintiffs/respondents succeeded in proving their title to the suit property and that is the crucial question.
14. For proving the ownership of the suit property known as 'ORNACODIL NOCODBAB' or 'ORNICODIL NOCODBAB TICAN', the plaintiffs relied upon two sale deeds and a deed of ratification dated 11th May, 1970, 11th July, 1970 and 18th July, 1974, respectively. Copies of the sale deeds are filed on record and a perusal of the first sale deed dated 11th May, 1970, shows that the aforesaid two properties are described in Clauses (h) and (i) for the properties known as 'ORNICODIL NACODBAD TICAN' and 'ORNACODIL NACODBAB' respectively. The sale deed is in respect of the said properties of the vendors, which means that it is a sale deed in respect of a number of properties, which includes the suit properties. In (h) and (i), what is sold is right to 3/4 of the property with certain boundaries. Nowhere in the entire sale deed, the area of the aforesaid suit property is mentioned in any manner whatsoever, neither by giving the length and breadth, nor the total area, nor the approximate area, nor any survey number, but the property is described only by giving boundaries. There is a reference to the Land Registration Office No. 4209 in Book B fourteen and enrolled in Land Revenue Office (Matrizado) under No. 246. So far as paragraph (i) is concerned, in the Land Registration Office it is No. 4210 in Book B fourteen and enrolled under No. 245. Shri Usgaokar could not point out to what this refers to. Apart from that, the fact remains that the area of the property whether it was in acres, hectares or square metres, has nowhere been mentioned.
15. Further, it will be clear that what is sold is the right 3/4 of the property and if that is so, then which was that portion representing the unsold 1/4 that was kept by the vendors with themselves? How and where demarcating line was marked, how the properties (h) and (i) were divided into two shares, 3/4 and 1/4 i.e. sold and unsold, what was the area and measurement of both these properties, is not at all clarified in the said sale deed.
16. When questioned as to how and in what manner the plaintiffs were put in possession, Shri Usgaokar drew my attention to the clause, unnumbered in the sale deed, which commences from:
'By the present instrument the first parties,.............sells from today forever............to the second parties the said Gurudassa, Pramila, Satish and Prakash in equal shares..............for a total price of twenty thousand rupees, that the said Ambadassa declare that he received that price from the purchasers, to whom therefore he gives the corresponding acquittance, transferring on them all the domain, right, action command, title and possession.'
17. It will be clear from the aforesaid recitals that by this first sale deed the right to 3/4 of the property was sold to four persons i.e. the second parties, namely Gurudassa, Pramila, Satish and Prakash, that too in equal shares, which means that 3/4 portion was sold to four persons and each got 1/4 of 3/4 and a general reference to possession is made in the aforesaid recitals.
18. The second sale deed is also almost identical, excepting the fact that it is in respect of 1/4 undivided share. It will, therefore, be clear that both the sale deeds are totally silent about handing over possession to the purchasers. So if that property is transferred with possession that is different from buying it. As already discussed, if 3/4 portion was sold to four persons in equal shares and they were placed in possession, then the measurement of the property was necessary fixing all the boundaries between the sold and unsold portion and fixing of the shares of each of the four persons was also necessary. Even if the last part could be decided by the purchasers, dividing the property between the sold and unsold portions was required to be done for effectively putting the purchasers in possession of the property. The sale deed is totally silent in this regard and it substantially and materially affects the case of the plaintiffs that they were placed in possession pursuant to two sale deeds and a ratification deed. If the entire property was sold in the first sale deed and it was simply stated that the plaintiffs are placed in possession, the matter would have been different. But when the vendors sell only 3/4 share, then demarcation of that 3/4 share and its separation from the remaining 1/4 share was absolutely necessary. Since that has not been done, the sale deeds being vague regarding the area of the property sold and being vague about the possession part, cannot clothe any right of ownership to the plaintiffs.
19. Shri Usgaokar contended that in addition to these two sale deeds and the ratification deed, the plaintiffs also relied upon a map, Exhibit 40, which according to the plaintiffs, is the map drawn by the survey department and which proves the fact that the land was surveyed and measured by the Government agency.
20. Even this submission is required to be rejected. A perusal of Exhibit 40 shows that it is not at all a certified map. Shri Usgaokar tried to contend that it is a certified map, but this fact is denied by the Government and secondly, this map does not show that it is a certified map. What will be a certified map of a public document is defined in section 76 of the Indian Evidence Act, 1872 and according to it,
'Every public officer having the custody of a public document, .............shall give that person on demand, a copy of it on payment of legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called certified copies.'
21. If the aforesaid criteria is applied to Exhibit 40, it shows that Exhibit 40 does not bear the seal of the Government Department. It is not signed by any officer, no designation of the authority issuing the plain is shown and there is no certificate issued by the said office that it is a true copy of the original. No fees are shown to have been paid by the plaintiffs for obtaining the certified copy. Therefore, by no stretch of imagination, Exhibit 40 can be said to be a certified copy. The finding of the trial Court in that regard is totally wrong.
22. Shri Usgaokar also further contended that Exhibit 40 should be taken as a plan of the survey. Even this argument is required to be rejected, because what is written on the plan Exhibit 40, is:
'Plan of the plot known as 'ORNACODIL NOCODBAB' situated at Netrolim Village Sanguem Taluka held by Shri Prakasha Timblo of Margao. ****Scale: 1/2000(Paddy .................. 0,7300)Area ( )(Remaining area 17,6013)Total 18,3313.'
Nowhere on this plan, Exhibit 40, is anything written that it is a plan drawn after the survey.
23. The fact that a survey was done by the plaintiff is a fact that the plaintiffs have to prove independently. Production of a map can, at the most, prove what it depicts or what it certifies. It is a certified copy of the survey plan, then the Court can only hold that it is a certified copy of the plan. But whether a survey really took place or not, when it took place, in what manner the measurements were made, what was the basis line for measuring, who did the measurement, who were present at the time of measurement, which documents or Government records were referred, how the boundaries were fixed, all these facts are required to be proved independently by the person claiming that the land was surveyed. Admittedly, the plaintiffs did not adduce any evidence at all, except for making a bald statement that the land was surveyed by the Government in the year 1970-71. The plaintiffs, witness also nowhere stated that he was present at the time of the survey. What he was stated is,
'Said property was survey by Government in the year 1970 to 1971 under the name Conokude Nocobab and I am producing the plan the same is taken on record and marked Exhibit 40.'
The plaintiffs have also examined another witness who also has no personal knowledge of the survey, nor he was present at the time of the survey. The plaintiffs did not examine any Survey Officer, to prove the fact of the land being surveyed and thereafter preparing of the plan as per the ultimate result of the survey.
24. Great stress is laid by the plaintiffs on this plan, Exhibit 40, for the purpose of supporting their case of title and possession. A map, particularly a map which is not a certified copy cannot prove either of the things. It cannot prove the title or ownership, nor can it prove possession. These fats are to be proved from other documents, but the plaintiffs have none. In fact, it is at the time of the survey that the surveyor fixes the boundaries and what the plaintiffs' witness has stated is: 'After the survey was completed the plaintiffs stripped the suit property all along its boundaries except the part towards the rivulet in order to separate from the adjoining property'. This admission clearly shows that even the boundaries were not fixed by the surveyors, but that job was done by the plaintiffs.
25. It will, therefore, be clear that the entire case of the plaintiffs regarding title, ownership and possession must fail for want of proper and sufficient evidence.
26. The case of possession of the plaintiffs stands falsified because it is an admitted fact, or fact proved on record, that even after the so-called sale deeds, it was the Government who auctioned the forest produce in the aforesaid land, admittedly, after inviting tenders by public notice and entrusting the work to the contractors. It is at that time the plaintiffs woke up and filed the present suit.
27. The trial Court gave a finding that the plaintiffs succeeded a title of title on the basis of the map, Exhibit 40 and the sale deed. However, that finding also is wrong. The map does not prove anything for the reasons stated above. Similarly the sale deed also do not prove the ownership and title or any claim of the plaintiffs for possession.
28. Learned Government Advocate on behalf of the appellants, contended that this is nothing but an attempt to grab 18 hectares of valuable forest land on the basis of a vague and ambiguous document. I am in complete agreement with him that the trial Court committed an error in relying upon Exhibit 40 as document of possession or title and relying upon the sale deeds as documents of possession and title.
29. Learned Advocate for the appellants as well as the respondents cited authorities. Shri Usgaokar relied upon Corporation of the City of Bangalore v. M. Papaiah & another, : AIR1989SC1809 , State of Maharashtra & others v. Glaxo Laboratories (India) Pvt. Ltd. & another 1979 Bom.C.R. 321, Tanaji Mosso Shetkar & others v. Rukmini Pandu Shetkar & others 1991(2) G L.T. 153, and Smt. Indumatiben Chimanlal Desai v. Union of India & another, : AIR1969Bom423 . All these four authorities are generally on the point that a suit for injunction simpliciter can lie and declaration is not necessary.
30. Shri Bharne, learned Government Advocate on the other hand, relied upon a judgment of this Court reported in Mulji Umershi Shah & etc. v. Paradisia Builders Pvt. Ltd., Mumbai & others A.I.R. 1988 Bom. 87. It was contended by the learned Government Advocate before this High Court that in a suit for injunction passed primarily on possession, the question of title cannot be gone into and, therefore, while considering the application for temporary injunction, the only consideration before the Court was possession and not title of the plaintiff. The Court held that the contention was neither impressive nor sound.
31. So far as the facts of the present case are concerned, none of the aforesaid judgments are of any help to either of the parties. The plaintiffs/appellants had claimed a declaration of ownership and permanent injunction and, therefore, the suit of the plaintiffs obviously was not only for injunction or only for declaration. The authorities cited above are of no help, therefore.
32. Shri Usgaokar lastly relied upon a judgment of the Privy Council in Bhagat Ram v. Khetu Ram & another, A.I.R. 1929 P.C. 110, which is about admissibility of documents. In that case the appellant sought to support his story by producing what were said to be the original books kept by the appellant as agent for his father-in-law, for whom he was carrying on a small business in the Federated Malay States. A document was produced consisting apparently of some loose sheets of paper with entries which, if they were accurate and contemporary, show that they appellant has used 5,650 dollars belonging to his principal in making this advance. Nobody suggested that the document was ever shown to the respondents. It is said to have ben admissible in evidence by the Law of the Federated Malay States. Their Lordships did not think it necessary to consider whether the documents was admissible or not. No objection seems to have been taken to its admissibility at the trial. It was held that:
'The document, if accurate, records a most remarkable and extraordinary transaction in the use of the principal's money for part-performance of the agent's loan, and Their Lordships think that even if admissible it is very far from being a satisfactory document, and even if it were admissible and satisfactory it would not go a very long way towards proving the appellant's case.'
It would be clear that the observations related to the facts of the case before the Privy Council and, therefore, they are of no use to the appellants so far as Exhibit 40 is concerned. The Evidence Act as stated above, clearly provides as to what will be a certificate, or how it should be obtained, who can given it and what are the requirements of a document being tendered as a certified copy. Exhibit 40 does not fulfil any of those conditions. It is not, therefore, a document admissible in law at all and, therefore, it has to be disregarded.
33. Therefore, it is accepted that the plaintiffs have a right to challenge the finding of the trial Court regarding rejection of their claim for declaration. On merits, the plaintiffs case fails miserably. Therefore the following order:
The first appeal is allowed with costs, the suit of the plaintiffs is dismissed.