Court : Mumbai Goa
oral judgment:- 1. heard mr. s. d. lotlikar, learned senior counsel appearing for the appellant and mr. m. b. da costa, learned senior counsel appearing for the respondents. 2. the above appeal came to be admitted on the following substantial question of law by order dated 16.07.2009. whether the year in which encroachment has been alleged in the plaint is determinative in a suit for restoration of possession of the encroached land and for recovery of possession based on title particularly when the court has negated the defence of acquiring the title by prescription raised by defendant? 3. mr. s. d. lotlikar, learned senior counsel appearing for the appellant has submitted that the appellant has purchased the property pursuant to the sale deed dated 20.05.1981 which was surveyed under nos.207/1 and 207/2 besides another property known as 'gorbat' as identified in the schedule attached to the said sale deed. the learned senior counsel has taken me through the said sale deed and pointed out that the disputed property in the present case is the one which is surveyed under no.207/1 which has been purchased by the appellant excluding an area of 500 square metres which was reserved for the vendors therein. the learned senior counsel further pointed out that on the basis of the said sale deed, the appellant has acquired title to the disputed property and as such the appellant is entitled to the ownership and possession thereof. the learned senior counsel further pointed out that .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. heard mr. rivankar, learned public prosecutor appearing on behalf of the appellant and mr. de sa, learned counsel appearing on behalf of the respondents. 2. this is a state appeal against acquittal. 3. the respondents (accused) were tried by the learned judicial magistrate first class in criminal case no. 35/s/2003/a for offences punishable under sections 324, 341, 504, 506(ii) r/w. section 34 of the indian penal code (i.p.c.). the said case was a culmination of a charge sheet filed by quepem police alleging that on 21/09/2002 at 22.30 hours at ganesh shetkar shop, cotto, amona junction, all the accused in furtherance of their common intention wrongfully restrained shri sameer naik (pw2) by catching hold of his t-shirt and hands and assaulted him with soda bottles on his head thereby causing simple injury to him and further gave him bad words and also threatened to kill him. 4. the respondents had pleaded not guilty to the charge framed by the learned judicial magistrate first class, quepem (trial magistrate) and thereafter the prosecution had examined all together 23 witnesses in order to prove its case. the statements of accused persons came to be recorded under section 313 of the code of criminal procedure, 1973. the case of the accused persons was of denial simplicitor. they did not examine any witness in their defence. 5. upon consideration of the entire evidence on record, the learned trial magistrate found that the prosecution could not prove the .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. heard shri vengurlekar, learned counsel appearing for the appellants and shri melo, learned counsel appearing for the respondents. 2. the above appeal has been admitted on 13.07.2007, on the following substantial question of law: (i) whether it is absolutely necessary to make prayer in the plaint for declaration regarding the existence of right of easement by prescription and if such prayer is not made, whether the suit solely seeking permanent injunction, is bound to fail? 3. during the course of the hearing of the above appeal, shri melo, learned counsel appearing for the respondents has argued in support of the cross objection filed by the respondents. after hearing both the learned counsel with that regard, the following additional substantial questions of law are framed by consent of the learned counsel : (a) could an easementary right by prescription be declared by the first appellate court, when a specific bar is created under section 17(b) of the indian easements act, 1882? (b) in absence of pleading nuisance and substantial damage caused to the appellants, could the first appellate court declare that the appellants have acquired an easementary right by prescription? 4. the matter was thereafter argued on all the aforesaid substantial questions of law. 5. before i proceed to examine the rival contentions in connection with the above substantial questions of law, it would be appropriate to briefly state the facts of the present case. the appellants .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: heard mr. n. sardessai, learned counsel appearing for the appellants and mr. a. f. diniz, learned counsel appearing for the respondents. 2. the above appeal came to be admitted by order dated 31.03.2008 on the following substantial questions of law. (a) whether the clauses of the agreement dated 8.12.1984 executed by the builder with the respondents, which were clearly in excess of the powers/authority given by the appellants to the builder by agreement dated 31.03.1984 and the power of attorney dated 29.03.1984 be said to be binding on the appellants especially when the respondents were aware that the builder's agreement with the appellants and the power of attorney given by the appellants to the builder did not empower the builder to execute such clauses ? (b) whether it was mandatory for the appellate court to have framed issues/points for determination and decide the same while disposing the regular civil appeal no.160/2001 ? (c) whether the findings of the courts below are unsustainable in law, for having arrived at, without considering the effect of the clause nos.4 and 11 of the agreement dated 31.03.1984 especially when it was the appellants' case that in view of the agreement dated 31.03.1984, the builder could not have legally agreed with the respondents not to put up construction of the third storey on the north-south wing of the proposed building ? (d) whether the appellate court erred in deciding the appeal without adverting to the binding nature .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. this second appeal was admitted on 17/2/2006 on the following substantial questions of law: (a) whether in the absence of framing specific points for determination in terms of order 41 rule 31 (a) or order 20 rule 4(2) of the civil procedure code, could the judgment and decree of the first appellate court said to be vitiated? (b) whether the date of the registered sale deed dated 16/01/1987 between the appellants and the respondent nos. 3 and 4 be treated as deemed knowledge to bar the institution of the civil suit by the respondent nos. 1 and 2 under section 3 of the limitation act? 2. briefly the facts leading to the present appeal are as follows: (a) the appellants (original defendants nos. 1 and 2) purchased under a sale deed dated 16/1/1987 a property known as gorbhata inam at village ponda, (suit property) from respondent nos. 3 and 4 (original defendant nos 3 and 4), (b) on 12/8/1996, the respondent nos 1 and 2 (original plaintiffs no.1 and 2) filed a civil suit against the appellants and respondent nos 3 and 4 for: (i) a declaration that the sale deed dated 16/1/1987, by which the suit property was conveyed by respondent nos. 1 and 2 to the appellants is null and void, (ii) the appellants be restrained from in any manner interfering with the suit property or from creating any third party rights or doing any construction activity on the suit property and (iii) a mandatory injunction to demolish the construction raised on the suit property by the .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. rule. rule made returnable forthwith. heard finally with the consent of the parties. both these cases are between the same parties. they involve common and connected questions. as such, they are being disposed of by this common judgment. 2. mrs. roshani wadkar, the petitioner in criminal writ petition no. 14/2015 has filed an application for maintenance under section 125 of the code of criminal procedure (cr.p.c., for short), which is pending before the learned judicial magistrate first class, bicholim. the petitioner, mrs. roshani wadkar has claimed maintenance of rs.15,000/- per month for herself and for her two minor children, who are petitioners no. 2 and 3. the maintenance is claimed against the respondent, mr. rajan wadkar. it is the case of the petitioner-wife that she was married with the respondent on 27.10.1994 and thereafter the marriage was solemnized as per the hindu religious rites and customs on 16.04.1995. after her marriage, she went to reside with the respondent and stayed for 15 days. according to her, during this period, she was ill-treated by her in laws, which compelled the applicant-wife to leave the matrimonial house. she thereafter started residing in a rented house in the same locality. the original applicants no. 2 and 3 are born out of the wedlock and they are taking education. the respondent-husband is working in canara bank as a peon and is drawing a salary of rs.35,000/- per month. according to the petitioner, she has been .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: (f.m. reis, j.) 1. heard ms. susan linhares, learned advocate appearing for the appellant and mr. v. menezes, learned advocate appearing for the respondent. 2. the above appeal came to be admitted by an order dated 21.4.2009 on the following substantial questions of law:- 1. whether, the service tax paid on mobile phones used by employees/staff of a manufacturing company would be eligible for cenvat credit under the cenvat credit rules, 2004? appellate tribunal was correct in holding their the board's circular no.59/8/2003-st dated 20.6.2003 specifically clarifying that service tax paid on mobile phone is not eligible for cenvat credit is in applicable under the cenvat credit rules, 2004? 3. ms. linhares, learned counsel appearing for the appellant has pointed out that as per the circular dated 20.6.2004 at clause 2.8, mobile phones are not covered. the learned counsel has further pointed out that as the mobile phones were not covered and considering the saving clause in the rules of 2003, the circular is still in force and, as such, even in terms of rules of 2004, such credit is not available to the respondent. the learned counsel further points out that upon reading of the definition of the word input services rule 2(l) are not included for the purpose of holding that such services are input services. the learned counsel has thereafter taken us through the definition of the word output services at rule 2(p) of 2004 to point out that the mobile phones have not .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. heard mr. bras de sa, learned counsel for the petitioners, mr. ferreira, learned counsel for the respondent no. 1 and mr. amonkar, learned additional public prosecutor for the respondent no. 2. 2. rule. by consent, rule made returnable and heard forthwith. 3. by this petition, the petitioners have prayed for quashing and setting aside the order dated 14.02.2014 passed by the learned additional sessions judge, ftc-1, margaoin criminal appeal no. 06/2013. 4. the respondent no. 1 had filed an application dated 20.09.2013, under section 391 of the code of criminal procedure, 1973 (cr.p.c., for short), before the learned additional sessions judge, ftc-1, margao, in criminal appeal no. 06/2013, seeking permission to adduce additional evidence by way of producing eight documents as mentioned in paragraph 5 of the said application. by the impugned order, the learned judge has allowed the said application filed by the respondent no. 1. the learned additional sessions judge has mentioned adequate reasons for permitting the said application under section 391 of cr.p.c. 5. section 391 of cr.p.c. provides as under: 391. appellate court may take further evidence or direct it to be taken (1) in dealing with any appeal under this chapter, the appellate court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a magistrate, or when the appellate court is a high court, by a court of .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. on 12.3.2007, the appeal has been admitted on the following two questions as substantial questions of law:- "a) whether on the facts and in the circumstances of the case, the transaction of purchasing shares over and above the quoted rate of shares amounts to excess payment, without consideration and therefore deemed to be gift made under section 4(1) (a) of the gift tax act 1958? b) whether on the facts and in the circumstances of the case the purchase of shares by the assessee over and above the quoted rate without consideration and therefore attracts gift-tax under section 4(1)(a) read with section 2(xxiv)(d) of the gift tax act, 1958?" however during the arguments, it is not disputed that answer to second question is contingent upon the first question and accordingly, parties have advanced arguments only on first question. 2. learned counsel for the revenue has taken us through the order of cit (appeals) to urge that in fact a loan transaction has been camouflage as purchase of equity shares when in market the shares were listed at rs.5/-, the same have been sold and purchased at the rate of rs.10/-. thus, when there legally could have been loan of rs.49,00,000/-, a gift of rs.49,00,000/- has been made to the sister concern by assessee. it is urged that therefore, the provision of section 4(1)(a) of the gift tax act,1958 are squarely attracted. support is taken from the judgment of gujarat high court reported in the case of commissioner of gift tax vs. .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. heard rival submissions at length on this criminal appeal preferred by the appellant/state challenging the judgment and order of acquittal dated 15/12/2010 passed by jmfc, mapusa in criminal case no.271/s/2002/f. 2. by the impugned judgment and order, the present respondent/accused was acquitted for the offence punishable under sections 468 and 471 of indian penal code. 3. prior to discussing the rival submissions, the provisions of section 468 and 471 are required to be looked into in order to ascertain as to whether the prosecution has established the ingredients of the said provisions and whether in the limited scope available to this court in appeal against acquittal, any interference is warranted. said sections 468 and 471 read thus: 468. forgery for purpose of cheating whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 471. using as genuine a forged 3[document or electronic record] whoever fraudulently or dishonestly uses as genuine any 3[document or electronic record] which he knows or has reason to believe to be a forged 3[document or electronic record], shall be punished in the same manner as if he had forged such 3[document or electronic record]. 4. again prior to discussing the rival arguments, the case of the complainant i.e. pw1 on the .....
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