Holding

An especificacao is only a procedural step with probative value and cannot be preferred to evidence; courts may disregard it if contradicted by trial evidence.

Summary

The appellants filed a suit in 1961 seeking declaration of ownership and possession of certain immovable properties, which was tried under the Portuguese Civil Procedure Code. The trial court prepared an especificacao and questionnaire under Articles 515 and 516, but dismissed the suit. On appeal, various courts (Judicial Commissioner, Civil Judge, District Judge, High Court) examined the matter, focusing on possession and prescription, and ultimately ruled in favour of the plaintiffs. The appellants contended that the especificacao, reflecting the parties' admissions, was a final, conclusive order that could not be contradicted by evidence, while the respondents argued that the especificacao could be overruled by trial evidence. The Supreme Court held that an especificacao is merely a procedural step with probative value and not a binding judicial order; courts must decide the dispute on the basis of evidence presented at trial, disregarding any inconsistent statements in the especificacao. Consequently, the appeal was dismissed.

Issues considered

Whether an especificacao under Articles 515 and 516 of the Portuguese Civil Procedure Code is a final, conclusive order that cannot be contradicted by evidence.
Whether appellate courts may disregard the especificacao and decide the case based on trial evidence concerning possession and prescription.
Whether the findings on adverse possession and title derived from evidence override the statements recorded in the especificacao.

Legislation cited

Code of Civil Procedures. 100
Portuguese Civil Procedure Codes. 515, s. 516

Subjects

especificacaoPortuguese Civil Procedure Codepossessionadverse possessionprescriptionevidenceprobative valueappellate jurisdictionproperty law

Judgment

KASHINATH S. BANDEKAR AND ORS. A
v.
ATMARAM VASSUDEVA NAIQUE AND ORS.

MARCH 14, 1997

(DR. A.S. ANAND AND KVENKATASWAMI, JJ.] H

Portuguese Civil Procedure Code-Articles 515, 516-Suit for posses-
sion of property-Especificacacr-Record of settlement-Validity-It is only a
step in proceedings of the trial with a view to na"ow down the controver-
sy-Though it has a probative value but it cannot be prefe"ed to the evidence C
led at the trial-Held, relevancy, proof and evidentiary value of a document
has to be decided· at the trial not withstanding the record of the
especificacao-Civil Courts Act, 1965.

In July 1961, respondents, filed a civil suit for declaration that they
were the owners and possessors of the suit properties. The trial court on D
the basis of pleading and documents on record drew up especificacao and
a questionnaire (issue) under Articles 515 and 516 of the Portuguese Civil
Procedure Code. After the trial; the suit was dismissed.

The first appeal was filed before the Judicial Commissioner, who
appointed a local commissioner to inspect the suit land. The local com· . E
missioner reported that the· respondents were the owners of the suit
property, but he did not give any report on the question of possession. As
such, the appeal was remanded back to the Civil Judge to adjudicate on
the issue of "possession and prescription". The Civil Judge came to the
finding that the respondents were in possession of the suit property and F
the appellants failed to prove that they had been in possession of the suit
property by prescription. In the meanwhile, Civil Procedure Code became
applicable and the Judicial Commission no longer had the jurisdiction to
entertain and hear an appeal. The Judicial Commissioner forwarded the
case to the District Judge for disposal of the appeal. The District Judge G
allowed the appeal and passed a decree in favour of the plaintiff.

The appellants challenged the judgment and decree in second appeal
in the High Court. The High Court found that the First appellate Court
had failed to take into consideration the especificacao prepared by the trial
court and remanded back the appeal to the District Judge to decide the H
1075
1076 SUPREME COURT REPORTS [1997) 2 S.C.R.

appeal afresh after taking especificacao into consideration. The District
Judge after reconsideration again decreed the suit in favour of the respon·
dents. The High Court thereafter dismissed the sec?nd appeal. Hence, this
a11peal by way of spedal leave.

The appellant contended that the Appellate Courts failed to consider
B the e~pccificarao , which reflect admission of the parties and that an order
of especificacao being final and conclusive, could not be controverted by
evidence.

On the other hand respondents contended that the Appellate Courts
---
C were right in preferring evidence led at the trial to the especificacao, which
had been drawn up even before the issues were framed and did not reflect
the correct state of affairs and its incorrectness could be exposed by
evidence on record.

Disnlissing the ap11eal, this Court
D
HEL~ : 1.1. On ,a combined reading of Articles 515 and 516 of
Portuguese Civil Procedure Code, it become clear that an especificacao is
only a step in the proceedings during the trial and is a record of settlement
aimed at m1rrowing down the controversy through evidence led at the trial
E on the basis of the issue raised. It certainly has probafo·e value but cannot
be given the status -of a binding of judicial order, which cannot be con·
troverted through evidence led on the basis of the pleadings of the parties
and the issues raised. (1082-G·H]

1.2. TI1c i:onrt is duty bound to pronounce upon tlie relevance and
F auU1enticity of lhe document on the basis of the evidence led at the trial '
notwithstanding what b settled in the espcdficacao, drawn up at the initial
stage of the casi;, as not lo do so would result in miscarriage of justice. TI1e
facts detailed in the cspedficacao should be taken into consideration for
th.c pm110se of adjudicating various issues raised in. the suit but nonethe·
G less the controversy in the suit is to be decided on the basis or the evidence
led at the' trial. Especificacao has only a probative value and the same
cannot be preferred to the evidence led at the trial. (1083-E-F, 1083-A·B]

2.1. Once the claim of the appellants to ownership and possession
on the basis of prescription falls, the statements.in the especificacao which
H make the record contrary thereto, have to be ignored and the finding
K.S. BANDEKt\R v. AV. NAIQUE 1077

recorded by the first appellate court after remand and by the High Court A
that the appellants had failed to substantiate their claim to ownership and
possession, must be preferred notwithstanding any statement to the con·
trary contained in the especificacao. [1084-C-D]

2.2. The concurrent findings recorded by the Courts below to negate
the claim of the ownership of the appellants are based on proper apprecia· B
tion of evidence, both oral and documentary 1111 the record after applying
correct principles of law. Hence, no error has been committed by the
Courts below. [1085-B-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6205 of C
1990.
- From the Judgment and Order dated 5.7.90 of the Bombay High
Court in S.A. No. 41 of 1989.

Dhruv Mehta, S.K. Mehta and Fazlin Anam for the Appellants.
D
M.L. Verma, Goodwill Indeevar, Pavan Kumar arid Da·.it Rao for
the Respondent Nos. 3-4.

R.S. Sodhi (N.P.) for the Respondent No. 2.

The Judgment of the Court was delivered by E
DR. ANAND, J. This appeal by special leave is directed against the
judgment and order of the High Court of Judicature Bombay (Panaji
Bench, Goa) dated 5th of July 1990.

The case has a chequered history but we shall refer to the facts to F
the extent relevant for the purpose of disposal of this appeal. On 23rd July
1961 the predecessors of the respondents filed a Civil Suit in the Court of
Civil Judge (Senior Division, Bicholin) for declaration that they arc the
owners and possessors of the disputed properties. That suit was tried under
the Portuguese Civil Procedure Code. After going through the pleadings G
and the documents an especificacao was drawn up by the trial court besides
a questionario, (issues in the case). The especificacao and the questionalio
were drawn up under Articles 515 and 516 of the Portuguese Civil Proce-
dure Code. Objections filed to the especificacao were decided on 10.3.62.
Parties led evidence, both oral and documentary in support of their respec-
tive claims. Vide judgment and order dated 27.7.67, the trial court dis- H
1078 SUPREME COURT REPORTS [1997] 2 S.C.R.

A missed the suit. The plaintiffs in the suit filed a first appeal against the
judgment and order dated 27.7.67 in the court of the learned Judicial
Commissionet. After hearing the parties, the learned Judicial Commis-
..
sioner found that the trial court had not applied its mind to the issue· of
title as also to the effect of certain documents produced by the parties
which were in the nature of agreements. The learned Judicial Commis-
B sioner appointed Mr. Pinto Menezes, as a Local Commissioner who was
directed to inspect the suit land, examine the documents mi the record but
without recording any further evidence to submit a report, after consider-
ing the evidence already on the record, regarding the issue of ownership
of the disputed immovable property. The Local Commissioner submitted
C his report on 8.11.69, holding that the plaintiffs were the owners of the
immovable property known as "Bismachotembo". It was also found by the
local Commissioner that immovable property called "Mattonvaddy" belongs
to the defendant and that the disputed land which lay between the
-
aforesaid two immovable properties, belongs to the plaintiffs in the suit,
who therefore, had title to 'that property. The learned Judicial Commis-
·osioner perused the report of the Local Commissioner and found that he
had not given any report on the question of possession of the property in
dispute. Vide order dated 9.2.70, the learned Judicial Commissioner
remanded the case to the court of learned Civil Judge (Senior Division) to
adjudicate "on the issue of possession and prescription" as claimed by the
E defendants on the basis of the evidence already available on the record
after taking note of the report of the local commissioner. The learned Civil
Judge (Senior Division), after hearing learned counsel for the parties on
the issue of possession and prescription, vide his order dated 4.8.71, came
to the conclusion that the plaintiffs were in possession of the disputed piece
of immovable property and that the defendants had failed to prove that
F they had been in possession of the disputed land by prescription, as alleged
by them. After recording this finding, the learned Civil Judge forwarded
the finding on. the issue of possession and prescription along with the
record of the case to the court of the learned Judicial Commissioner. In
the meanwhile, the Code of Civil Procedure, as applicable to the rest of
G the courts .in India, was also made applicable to the courts in the territory
of Goa with effect from 15.6.66. The learned Judicial Commissioner,
therefore, noticed that under the Civil Procedure Code read with the Civil
Courts Act 1965, the court of the Judicial Commissioner no longer had
jurisdiction to e~tertain and hear an appeal from the judgment, order or
decree passed by the learned Civil Judge and that such an appeal could lie
H only before the concerned District Judge. The learned Judicial Commis-
K.S. BANDEKAR v. A.V. NAIQUE [DR. ANAND, J.] 1079

sioner, vide order dated 31.8.1972 forwarded the record of the case to the A
District Judge at Panaji for disposal of the appeal. Both the original
plaintiff as well as the original defendants having died in the meanwhile,
there legal representatives were brought on the record to prosecute the
appeal. The learned District Judge at Panaji heard the appeal and vi de
judgment and order dated 29.3.84, set aside the judgment and decree of
Civil Judge dated 27.7.67 and passed a decree in the suit in favour of the B
plaintiffs. The defendants in that suit, challenged the judgment and decree
dated 29 .3.1984 passed by the [)istrict Judge, through a second appeal in

-- the Panaji Bench of the High Court. (Second Appeal No. 30 of 1984). After
hearing learned counsel for the parties, a learned single Judge of the High
Court found that the First Appellate Court had failed to take into con- C
sideration of especificacao prepared by the trial court and vide judgment
dated 31.3.89 set aside the judgment and decree of the First Appellate
Court dated 29 .3.84 and remanded the appeal to the District Judge to
decided the first appeal afresh after taking into consideration the
especificacao and other material on the record. After remand of the appeal,
the learned District Judge heard the parties and vide judgment and order D
dated 30.9.89 set aside the judgment of the trial Court dated 27.7.67 and
allowing the appeal , the District Judge passed a decree for declaration
and possession of the suit property in favour of the original plaintiffs. It
was found by the learned District Judge that the plaintiffs were the owners
of the property bearing No.5501, which included the disputed immovable
property also. A further declaration was also given to the effect that the E·
defendants were in possession of the property bearing No. 5568 and the
claim of the defendants to be in possession of suit property was negatived.
The successors in interest Of the defendants in the original suit (appellants
herein) filed a second appeal against the Judgment and order of the
District Judge dated 30th September 1989. Vide judgment and order dated F
5.7.90, impugned herein, the High Court dismissed the second appeal.

-. Mr. Dhruv Mehta, Learned counsel appearing for the appellants,
submitted that both the First Appellate Court and the High Court had
failed to consider the especificacao which reflected the admissions of the
parties and that an order of especificacao being final and conclusive could G
not be controverted through evidence as had been done by the respondents
in the present case. It was urged that an especificacao is binding on the
parties and both the courts could not go behind it more so because the
respondents herein had not challenged the correctness of the especificacao
through an appeal. Learned counsel further submitted that the First Ap- H
1080 SUPREME COURT REPORTS [1997] 2 S.C.R. '-{
I
A pellate Court also fell in an error in describing the "tombacao" (survey
document) as a private document, having no sanctity of law,ignoring the
fact that the respondents herein had neither raised any objection nor filed
any "reclamcao" again5l the tombacao.

Mr. Verma, learned senior counsel appearing fort.he respondents on
B the other hand submitted that the especificacao did not reflect the correct
·state of affairs and the evidence on the record exposed its incorrectness
and as such the first appellate court as well as the High Court were right

c
in preferring the evidence to the e.i]Jecificacao , which had been dniwn up
even before the issues were framed.

The proceedings of the trial court dated 10th March 1962, settling
--
-
the especificacao in the present case read as follows :

"I consider as proved by way of documents and by the agreement
of the parties the following documents :
D
(a) The plaintiff is the owner and possessor by himself and through
his conveyers of the property described at the land Registration
Office of this Camarca under No. 5501 of book 8912 new.

(b) The property was described and apportioned in the "Inven-
E tario" among minors carried out at the Bardez Comarco Court in
the years 1907-08, on the demise of the previous possessor, Jose
.Jovem Flaviano Ferreira, late notary public of Bardez, with the
boundaries mentioned in the endorsement on the description No.
5501, having been purchased with the same boundaries by the
F plaintiff and his brother Govinda by deed elated 13.12.1913, ratified
by that on 19.9.1915.

(c) The properties.Motouvadi, bordering the property No. 5501
are "described at the same Land Registration Officer under No.
5668 of Book b(15) new and 761 of Book B old, and the right to
...
G 1/3 of this latter belongs to the plaintiff.

(cl) Vishnu Porobo, member of the joint Hindu family to which the
property No. 5668 belonged did intervene as instrumental 1vitness in the
deed dated 19.9.1915, referred to in clause (b) of this Especificacao: (facts
H admitted).
K.S. BANDEKAR v. A.V. NAIQUE [DR. ANAND,.!.] 1081

( e) The dcfondant Xencora stored outside the stonewall, which A
exists ori the western side of the property No. 5668, sterile mincral-
orc and thereafter he felled a "Satondo" tree, valued at Esc. 360$00,
this felling having taken place probably in the month of September,
1960.

(I) According- to the predial description No. 5501 the property B
referred to lies in the village, Bicholim, while the controverted sllip
lies in the bordering village of Bordem.

(g) The conveyer of the defendants, Indira Domio, sold to the
latter the property 'Motou-vadda' with its adjoining plot "Gum- C
tachi-Molly".

(h) The property 'Motou-vadda' has on the west a stony- wall
throughout its extension.

(i) At the time of the Land Survey of the Comunidade of Bordcm D
. against which the plaintiff did not file a claim of objections when'
it was liable to "reclamacao" of the interested parties, the plot
identified in para 13 of the written-statement was surveyed as
belonging to the conveyer of the defendants, or be it, upto the row
of stones referred to in para 10 of the same and the usurpation of
19,322 sq. metres wicmifes;-etl hut paid by the defendants, has been E
found.

On the. same occasion, the western part in respect of the row
of stones wall surveyed and the usurpation cif 19,052 sq. metres
discivercd, confessed by Baburao, was paid its value.
F
G) The villages of Bor<lem and Bicholim arc surveyed and their
boundaries defined, although the survey cadastre may not be
finalised.

- (k) From the deed of purchase of the property No. 5501, it is seen G
that this property is bounded on the north by the property of the
Comunidadc of Bordcm and not by that of Aleixo Joao Lobo,
a_ccording to what is mentioned in the predial description, which
is also confirmed by the cadastre of Bordem."

With a view to appreciate the subrnis~:ions made at the bar, it is first H
1082 SUPREME COURT REPORTS .[1997) 2 S.C.R.

A necessary to consider as- to what is the nature and status of the
"especificacao.

B
Articles 515 and 516 of the Portugues Code deal with the settlement
of especificacao and the questionnario. These Articles read as follows :

''A1t. 515: when the trial is to be held, the Judge within eight days
-
shall specify the facts which he considers as admitted for want of
denial, admitted by agreement of parties and proved by documents
and he shll fix in serial order the points of fact in controversy and
which are relevant for the decision of the case. From this ques-
tionnaire as well as from the specification, a copy shall be given
c .· to the parties, who may file, in duplicate, the objections which they
d.eemed fit. The duplicate shall be handed over to the opposite
side; within next two subsequent days the latter may give its say in
the matter. After the expiry of such period, the objections shall be
decided.
D Para 1 : - The questionnaire shall be amongst the facts pleaded,
consist of all facts controverted relevant to the case and those
which may be indispensable for its resolution.

Para 2 : The objection may be related to specification or question-
naire. The latter may be objected for deficiency, excess, complexity
E
or obscurity.

Para 3 : From the order deciding the objection, appeal lies to
Relacao (High Court) from the decision of the latter no appeal
shall lie to the Supreme Court.
F Article 516 - Once the questionnairo is settled the parties shall be
notified to give the list of witnesses and apply for any other mode
of evidence."

From a combined reading of Articles 515 and 516 (supra) it become
G obvious that an especificacao is only a step in the proceedings during the ...
trial and is a record of settlement aimed at narrowing down the controversy
in the case. It certainly has probative value but cannot be given the status
of a binding judicial order which cannot be controverted through evidence
led at the trial on the basis of the pleadings of the parties and the issues
raised. The High Court therefore, rightly found that the matter sorted out
H at the time of settlement of the especificacao are required to be borne in
K.S. BANDEKAR v. AV. NAIQUE [DR. ANAND, J.] 1083

mind while deciding the dispute and that the facts detailed in the A
especificacao should be taken into consideration for the purpose of ad-
judicating various issues raised in the suit but nonetheless the controversy
in the suit is to be decided on the basis of evidence, both oral and
documentary, led at the trial bearing in mind the especificacao. That an
especijicacao is only a step in the proceedings aimed to narrow down the
controversy and is only a procedural step is also obvious from the fact that B
in clause (i) of especificacao reliance has been placed on 'tombacao'
treating it as a document of conclusive nature and a 'public document'. The
'tombacao' has been considered by the High Court in detail. It has been
found that the 'tombacao' record took place in the year 1948. It was
"incomplete" and in respect of the same there was "no promulgation". The C
High Court, therefore, rightly found that the District Judge was justified in
not relying upon that record which was not of a conclusive nature to arrive
at its findings. The relevancy, the proof and the evidentiary value of the
document has to be decided at the trial notwithstanding, the record of a
especificacao because in the event, the documents on the basis of which an
especificacao is drawn up, treating the statements in those documents as D
admissions, is found at the trial either not proved or not genuine or
othenvise not relevant, it cannot be said that the statements made in the
especificacao would over-ride the doubtful nature of the document and the
trial court would be unable to pronounce upon the correctness, relevancy
and authenticity of the document. The court is duty bound to pronounce
;
upon the relevancy and authenticity of the document on the basis of E
evidence led at the trial notwithstanding what is settled in the e~pecificacao,
drawn up at the initial stages of the case, as not to do so would result in
miscarriage of justice. We, therefore, find it difficult to accept the submis-
sion of Mr. Mehta that the First Appellate Court or the High Court could
not have recorded findings on the basis of the evidence Jed at the trial,
strictly in support of the pleadings, which run contrary to the record of the
F
especificacao and we are of the view that an especificacao is only in the
• nature of a step in the proceedings of the trial, which has probative va\ue
and is required to be borne in mind but the same cannot be preferred to
the evidence led at the trial which conclusively shows the statement or any
part of it in the especificacao to be either incorrect or not 'proved' or having G
no evidentiary value or relevance or suffering from any like defect.

At the time when a Local Commissioner was appointed by the
learned Judicial Commissioner in exercise of the judicial powers, the
especificacao stood already settled. The Local Commissioner was still
H
1084 SUPREME COURT REPORTS [1997] 2 S.C.R.

A directed to examine the question of ownership, title, possession and
prescription and none of the parties raised any objection to that course
being adopted. After the receipt of the report of the Local Commissioner,
the case was remanded to the trial court for determination of prescription
because of the claim to possession raised on its basis by the defendants.
B Admittedly, the especificacao dated 10.3.62 did not concern itself with
claim based on presC1iptio11 for deciding which the case had been
remanded, and therefore, the question of prescription had to be decided
independent of the especificacao on the basis of the relevant material.
Once the claim of the defendants to ownership and possession on the basis
of prescription falls, the statements in the especificacao which make a record
C contrary thereto, have to be ignored and the findings recorded by the first
appellate court after remand and by the High Court that the defendants
appellants had failed to substantiate their claim to ownership and posses-
sion of the disputed land on the basis of adverse possession, must be
preferred, notwithstanding any statement to the contrary contained in the
0 especificacao.
Coming now to the merits of the in~tant appeal. The defendant-
appellants did not file any objections to the report of the local commis- 1
sioner, who found that Indira Dando did not sell the disputed plot known
as "Motou-vaa'da" to the defe~dants who were owners of the adjoining plot
E "Gumtachi-Molly" notwithstanding the statement in claus_e (g) of the
especificacao. At the trial, defendants-appellants in the suit did not claim
title in the suit property by way of any transfer, conveyance, sale or gift.
They rested their claim on title by adverse possession. The issue relating
to adverse possession of the suit property by the defendants has been
F considered by the courts below. After the learned Judicial commissioner
referred the issue of possession vide order dated 9.2.1970, to the .Civil
Judge (Senior Division) the same was debated. before the learned Civil
Judge, who vide order dated 4.8.1971, came to the conclusion that the
defendants had failed to prove that they were in possession of the suit land
for the prescribed period of 30 years. The learned District Judge, in appeal
G also found that the defendants had failed to prove their adverse possession
over the disputed property and on the contrary the plaintiffs had proved
.their possession and title to the said property throughout. Afrer the report
of the local commissioner, the District Judge, Panaji, once agains by his
judgment and order dated 30.9.1989 .came to the conclusion that the
H defendants had failed to prove their possession of the suit property for a
KS. BANDEKAR v. AV. NAIQUE [DR. ANAND, J.] 1085

period of 30 years or more and that the plaintiffs on the other hand had A
proved their title and possession of the suit land. The High Court agreed
with the concurrent findings of fact recorded by the courts below, both on
the issue of possession as well as on the issue of title and by a well
considered and detailed order negatived the claim of the defendants
(appellants herein) to possession by prescription. The concurrent findings B
recorded by the courts below to negative the claim of ownership of the
defendant - appellants are based on proper appreciation of evidence, both
oral and documentary on the record. In our opinion, the courts below have
taken considerable pains to decide the issues between the parties after
applying correct principles of law. The High Court to the extent necessary
also examined the record, including the evidence, while hearing the argu- C
ments in the second appeal filed by the appellants under Section 100 of
the Code of Civil procedure, \vith view to do complete justice between the
parties. We find no error to have been committed by the courts below. The
impugned judgment and order do not call for any interference. This appeal,
therefore, fails and is dismissed, but in the peculiar facts of the case without D
any order as to costs.

Appeal dismissed.