1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 18 OF 2009. 1) Shri Santosh Murari Gauncar, Resident of House No.51, Wadachawada, Sirigao Taluka, Bicholim-Goa. 2) Shri Ladu Murari Gauncar, Resident of House no.51, Wadachawada, Sirigao Taluka, Bicholim- Goa. .. Appellants Versus 1) Shri Bagwant Bhaskar Gaonkar Resident of House No.50, Wadachawada, Sirigao Taluka Bicholim-Goa. 2) Shri Dilip Bhaskar Gaonkar, Resident of House No. Nil, Wadachawada, Sirigao Taluka Bicholim-Goa. 3) Shri Chandan Bhaskar Gaonkar, Resident of House No.50, Wadachawada, Sirigao Taluka Bicholim-Goa. 4) Smt. Kusumavati Narsinha Gaonkar Resident of House No.Nil, Thorli Bhat, Village Dongri, Taluka Tiswadi-Goa 5) Shri Babuli Narsinha Gaonkar Resident of House No.Nil, Thorli Bhat, Village Dongri, Taluka Tiswadi-Goa. 6) Shri Anand Narsinha Gaonkar, Resident of House No.Nil, Thorli Bhat, Village Dongri, Taluka Tiswadi-Goa. 7) Shri Ashok Narsinha Gaonkar, 2 Resident of House No.Nil, Thorli Bhat, Village Dongri, Taluka Tiswadi-Goa. 8) Smt. Anupama Namdev Gaonkar, Resident of House No.77, Near Government High School, Bogda, Vasco-Goa 9) Shri Naresh Namdev Gaonkar, Resident of House No.77, Near Government High School, Bogda, Vasco-Goa 10) M/s. Rajaram Bandekar (Sirigao) Mines Pvt., Ltd., with its registered office at Nitin Chambers, Swatantra Path, Vasco-da-Gama, Goa, Through its Managing Director Shri Narayan Rajaram Bandekar, r/o. Vasco-Goa. 11) Sarpanch Village Panchayat Sirigao, Sirigao Taluka, Bicholim-Goa 12) Director Directorate of Panchayat Junta House, Panaji, Goa .. Respondents Mr. J. Godinho, Advocate for the appellant. Mr. Valmiki Menezes with Ms. Melissa Conception, Advocates for the respondent CORAM :- U. D. SALVI, J. DATE OF RESERVING THE ORDER : - 24 th February,2010. DATE OF PRONOUNCING THE ORDER :- 4 th March, 2010. 3 ORDER : This is an appeal filed against the order dated 10.09.2008 rejecting the application for temporary injunction in Civil Suit no.77/2007 by the learned Ad hoc District Judge- I, Panaji, Goa. 2. Subject matter of the said suit for injunction simplicitor is the property admeasuring an area of 500 square meters in Survey No.59/3 adjacent to the property admeasuring Survey No.59/4 of village Sirigao, Taluka Bicholim, District North Goa, Goa. The appellants/ plaintiffs claiming to be in peaceful enjoyment and possession of the property admeasuring 485 square meters in the said property including a residential house bearing No.51 new (Old House No.42), Cow Shed bearing House No.52 new (Old House No.42/1) totally admeasuring 68.40 meters situate therein since last 35 years, state that their father has been declared as a mundkar of the said residential house vide order dated 6.10.1983 and their father had planted bamboo, mango, banana, coconut, jack-fruit and other fruit bearing trees in the area surrounding the said residential house and cow shed in the said area of 485 square meters of the said 4 property. The appellants/ plaintiffs further revealed in the plaint that respondents/ defendant Nos. 1 to 3 brothers interse have illegally constructed a structure in the said property and started cutting the said plantation, damaged the cow shed and committed other acts of encroachment on the said property. The appellants/ plaintiffs further revealed that the respondent Nos. 4 to 7 are heirs and legal representatives of the late Narsinha Babuli Gaonkar erstwhile owner of the said property and the defendant Nos. 8 to 9 are the heirs of Namdeo Vithu Gaonkar whose name appeared in the occupants column of the survey record in respect of the said property; and the late Shri Narsinha Babuli Gaonkar along with other co-owners have sold property under Survey No.59/3 excluding an area of 500 square meters to the respondent / defendant No.10 by deed of sale dated 25.1.1972. The appellants/ plaintiffs further reveal that the respondent/ defendant No.11 Sarpanch of Village Panchayat, Sirigao had started the construction of road on northern side of the suit property touching the well situate in the property being Survey No.59/3 and the respondent/ defendant no.11 has now completed the said construction of road. It is in this scenario unfolded through the plaint that the appellants/ plaintiffs sought the injunction 5 simplicitor against the defendant Nos. 1 to 11 restraining them from doing any construction in the suit property or interfering with the suit property in any manner whatsoever, and in terms of the said injunction prayed for interim injunction. 3. The defendant Nos. 1,2,3 and 5 jointly resisted the suit and incidentally the relief of interim injunction with the written statement dated 29.3.2008. Besides denial of the factual contents of the suit, the said respondents/ defendants specifically contended that no rights of ownership or any other entitlement is created in favour of the mundkar in respect of any area until the mundkarial area is purchased under Mundkar Act. The said defendants further specifically contended that the defendant No.1 has been residing in the structure bearing House No.50 constructed lawfully on the said land over last many years with the consent of Bhatkar and the construction of the road was done by the Village Panchayat for the benefit of villagers away from the house of the appellants/ plaintiffs. The said respondents/ defendants claimed to be in possession and enjoyment of the said property and the trees thereon. 6 4. The respondent/ defendant no.10 with the written statement dated 3.8.2007 canvassed dismissal of the said suit as against them, particularly for the reason that they have been in use and possession of the landed property admeasuring 8240 square meters out of area of 8740 square meters in Survey No.59/3 of village Sirigao ever since the date of the sale of the said property to them under Sale Deed dated 25.1.1972 and the plaintiffs have no right or claim to the said land purchased by them. 5. The impugned order reveals that the learned District Judge considered the pleadings of the parties and after hearing them, rejected the application for interim injunction with the observation that the appellants/ plaintiffs did not have any right, title over the area besides the area of the residential house and cow-shed as the said area was not purchased by them in accordance with Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975. The learned District Judge further observed that the appellants/ plaintiffs did not show either in the sketch or pleaded in the plaint as to the exact location and dimension / plinth area of the structures constructed by the defendant Nos. 1 to 3 in Survey No.59/3 and also did not reveal through the plaint the exact 7 area and location covered by the trees. The learned District Judge further observed that no documentary evidence evincing plantation of the trees by the plaintiffs or their father was produced in the said suit. It is on these observations that the learned District Judge gave negative finding as to the prima facie case the appellants/ plaintiffs were required to reveal. 6. Learned Advocate Godinho for the appellants/ plaintiffs submitted that prima facie, the appellants/ plaintiffs revealed that they are mundkars through registration of the name of their father under Section 29 of the Mundkar Act and as against this the respondents/ defendants did not show any right in the said property. Referring to the definition of dwelling house under Section 2 of the said Act, he submitted that as the mundkars their right extended to 300 square meters of land including the land on which the dwelling house is standing and as such, the learned District Judge erred in observing that the appellants/ plaintiffs have no right, title over the area besides 68.40 meters occupied by their house and cow-shed in Survey No.59/3. 7. Learned Advocate Godinho for the appellants 8 further submitted that interim relief of injunction ought to have been granted by the learned District Judge in the present case as there was a threat of wrongful possession of the suit property by the respondents/ defendants. He placed reliance on the judgment reported in 2002(2) All M R 68- Pedro Gomes Viegas Versus Urmila Lasman Narvekar and others for advancing this submission. 8. Learned Advocate Menezes for the respondents/ defendant Nos. 1 to 3 submitted that the appellants/ plaintiffs had suppressed the material facts before the learned District Judge-I by not pleading in the plaint that an application for purchasing the mundkarial property under Section 16(1) of Mundkars Act, 1975 was moved before the Joint Mamlatdar Bicholim, Taluka Bicholim, Goa on the basis of the registration order under Section 29(4) of the said Act making reference to their father. He further submitted that the said application has been rejected vide order dated 10.11.2009 passed by the Joint Mamlatdar-II, Bicholim, Taluka Bicholim, Goa and in such scenario, the learned District Judge was right in observing that the appellants/ plaintiffs cannot claim violation of any of their rights in respect of the area around or appurtenant to their house unless title or ownership of 9 the rights of area has been conveyed in their favour in terms of provisions of Section 16 of the said Act. He further fortified his submissions with the judgments of this Court reported in 1998(2) of G.L.T. 223- The Chief Officer, Margao and another Versus Shri Vaman Shirgaonkar (deceased) through Meena Shirgaonkar, 1998(1) Goa Law Times 449- Peter Fernandes deceased through his L.Rs. Versus Luizinha Pereira and two others. 9. Learned Advocate Menezes for the respondents/ defendants with reference to the following observations in judgment of the Hon'ble Apex Court reported in 1990 (supplement) SCC 727 - Wander Limited Versus Antox India P. Limited pointed out how limited is the role of the Appellate Court in the matters like the one at hand : "The Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the 10 material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. " 10. In light of the aforesaid observations of the Hon'ble Apex Court, the only question that needs to be answered in the present appeal is whether the learned District Judge exercised her discretion arbitrarily or capriciously or perversely ignoring the settled principles of law regulating grant or refusal of interlocutory injunctions. 11. In the instant case, the learned District Judge did consider all aspects of the case pleaded by the plaintiffs vis-a- vis the written statements of their rivals. The observations made by the learned District Judge are not shown to be baseless or dehors the material produced before her. A fact remains that the appellants/ plaintiffs did not reveal in the plaint that they had made an application for purchase of mundkarial property as per section 16 of Mundkar's Act, 11 1975. In Peter Fernandes's case (supra), this Court observed that the definition of dwelling house in Section 2 of the Mundkars Act does not by itself create any right in the land around the house in favour of the mundkar occupying such house and the exact extent and the location of the area around the dwelling house of the mundkar is necessary to be decided by the Mamlatdar, and such a right can be claimed only after exercise of the option of purchase of such area around or appurtenant to the house by a mundkar in terms of Sections 15 and 16 of Mundkars Act. Logically, therefore, a mundkar cannot claim violation of any of his alleged rights in respect of such area around or appurtenant to the house in his occupation unless his rights are confirmed in terms of provision contained in Section 16 of the Mundkar Act. A copy of the judgment and order dated 10.11.2009 passed by the Second Joint Mamlatdar-II of Bicholim, Taluka Bicholim, Goa reveals that the purchase application filed by the applicant/ appellant/ plaintiff No.1 was rejected. The issue is further compounded by the fact that the respondent No.1 has a residential house in the said property and the plaintiffs failed to show the exact location, dimensions of the said structure in Survey No.59/3. The learned District Judge, therefore, cannot be blamed of any arbitrariness, caprice or 12 perversity. 12. In the result, the appeal must fail. The Appeal from Order No.18/2009 stands dismissed with no order as to costs. U. D. SALVI, J. SMA