KASHINATH S. BANDEKAR AND ORS. versus ATMARAM VASSUDEVA NAIQUE AND ORS.

Citation: [1997] 2 S.C.R. 1075 · Decided: 14-03-1997 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Dismissed

Judgment (excerpt)

KASHINATH S. BANDEKAR AND ORS. 
v. 
ATMARAM VASSUDEVA NAIQUE AND ORS. 
MARCH 14, 1997 
(DR. A.S. ANAND AND KVENKATASWAMI, JJ.] 
Portuguese Civil Procedure Code-Articles 515, 516-Suit for posses-
sion of property-Especificacacr-Record of settlement-Validity-It is only a 
A 
H 
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 
B 
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 s pedal leave. 
The appellant contended that the Appellate Courts failed to consider 
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. 
D 
Disnlissing the ap11eal, this Court 
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 e

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