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The State Of Goa Government Of Goa The ... vs Shri Mahadev Sitaram Sinai Kakodkar And ... on 7 March, 2019

Bench: Uday Umesh Lalit, Indira Banerjee

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                                          IN THE SUPREME COURT OF INDIA

                                          CIVIL APPELLATE JURISDICTION

                                         CIVIL APPEAL NO.2567 OF 2019
                                    (Arising out of SLP (C) No.34152/2016)

     THE CONSERVATOR OF FORESTS, GOA & ORS.                                  Appellant(s)

                                                      VERSUS

     SHRI MAHADEV SITARAM SINAI KAKODKAR
     AND HIS WIFE (EXPIRED)THROUGH LRs & ORS.                                Respondent(s)




                                                  O R D E R

Leave granted.

Heard learned counsel for both sides.

In the present matter, the High Court while exercising second appellate jurisdiction under Section 100 CPC had quashed and set- aside the judgment and orders passed by the Trial Court and the first Appellate Court on 14.02.2002 and 21.09.2005 respectively and passed the following directions:

“7. Considering the change of jurisdiction during the pendency of the above Appeal, such suit will have to be decided by the learned District Judge in terms of the amendment to the Civil Courts Act. In such circumstances, both the Counsel submit that the Director of the Land Survey be directed to depute a competent Surveyor to be appointed as a Commissioner to carry out the exercise as mentioned herein above.

8. In view of the above, I pass the following:

ORDER

(i) The Appeal is partly allowed.

(ii) The impugned Judgments dated 14.02.2002 and 21.09.2005 passed by the learned Trial Judge and the First Appellate Court, are quashed and set aside.

(iii) Special Civil Suit No.88 of 1996 is restored to the file of the learned District Court.

(iv) The learned District Judge, South Goa, Margao, is directed to decide the suit afresh in the light of the observations made herein above.

(v) Appeal is disposed of accordingly with no orders as to costs.

(vi) The parties are directed to appear before the learned District Judge on 05.10.2015 at 10.00 a.m.” Consequently, in terms of the direction, a Surveyor was appointed as Commissioner who carried out the exercise. The report of the Commissioner has since then been placed on the record. Mr. A.N.S. Nadkarni, learned ASG submitted that while exercising second appellate jurisdiction, the High Court was not justified in passing said directions and in any case, the direction for appointment of Commissioner was not justified on facts at all. We need not go into those questions as the parties have arrived at an understanding that:

a) the judgment and order passed by the High Court be set-aside;

b) Second Appeal be restored to the file of the High Court;

c) The High Court be requested to consider and dispose of the Second Appeal on its own merits; and

d) If a case is made out for appointment of Commissioner, the matter may be gone into by the High Court purely on merits without being influenced by the order dated 28.08.2015 passed by the High Court on the earlier occasion.

The course suggested by the parties, in our view, is eminently just and proper. We, therefore, order accordingly. Thus, the judgment and order under appeal is set-aside and the Second Appeal is restored to the file of the High Court. Consequently, whatever has been undertaken in pursuance of the directions issued by the High Court in connection with the Commissioner’s report and the evidence also stand set-aside. The High Court may consider any appropriate request made by either party. Such request(s) will be considered purely in accordance with law.

Let the parties appear before the High Court on 26.03.2019 for further proceedings.

We have not and shall not be taken to have expressed anything on the merits of the matter which shall be gone into independent of this order as well as the order which was presently under appeal  4 With the aforesaid observations, this appeal stands allowed, with no order as to costs.

.................................J. [UDAY UMESH LALIT] .................................J. [INDIRA BANERJEE] NEW DELHI;

MARCH 07, 2019
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ITEM NO.1                  COURT NO.8                 SECTION IX

                S U P R E M E C O U R T O F      I N D I A
                        RECORD OF PROCEEDINGS

Petition for Special Leave to Appeal (C) No.34152/2016 (Arising out of impugned final judgment and order dated 28-08-2015 in SA No.23/2006 passed by the High Court Of Judicature At Bombay At Goa) THE CONSERVATOR OF FORESTS, GOA & ORS. Petitioner(s) VERSUS SHRI MAHADEV SITARAM SINAI KAKODKAR AND HIS WIFE (EXPIRED)THROUGH LRs & ORS. Respondent(s) Date : 07-03-2019 This petition was called on for hearing today. CORAM :

HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MS. JUSTICE INDIRA BANERJEE For Petitioner(s) Mr. ANS Nadkarni, ASG Mr. Arjun Vinod Bobde, Adv.

Mr. Santosh Rebello, Adv.

Ms. Richa Rehllan, Adv.

Ms. Aankhi Ghosh, Adv.

Mr. Sarthak Bhatia, Adv.

Mr. Sriram Srinivasan, Adv.

Ms. Shagun Seth, Adv.

Mr. Rajat Joseph, AOR For Respondent(s) Mr. Huzefa Ahmadi, Sr. Adv.

Mr. F.B. Bhaangi, Adv.

Mr. Ninad Laud, Adv.

Mr. Jayant Mohan, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.

The civil appeal is allowed, in terms of the signed order.

Pending application(s), if any, shall stand disposed of.

     (MUKESH NASA)                                    (SUMAN JAIN)
     COURT MASTER                                    BRANCH OFFICER