1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 5 OF 2009 1. Smt. Jyoti Shamsundar Sawant alias Smt. Jyoti Hemant Bhagat Gudekar, daughter of Shamsundar Sawant, major in age, housewife. 2. Shri Hemant Bhagat Gudekar, major in age, married, businessman, both residents of House No.446, Gudo, Avadem, Paroda, Quepem Goa. ... Appellants V e r s u s 1. Shri Kashinath Suryakant Manerkar, alias Kishore Suryakant Manerkar, son of late Suryakant Manerkar, aged 46 years, married, businessman and his wife. 2. Smt. Neeta Kashinath Manerkar, daughter of Sripad Vakunth Karmalkar, aged 41 years, housewife, both residents of House No.119, Fatorda, Margao Goa. (as alleged in the plaint ) at present residing in Ambika Nagar, Flat No.DG2 of the Building, Fatorda, Margao Goa. 3. The Manager, Bank of India, Margao Branch, Margao Goa. 4. The Manager, The Mapusa Urban Co-operative Bank, Margao Branch, Margao Goa. ... Respondents. 2 Mr. S. Kakodkar, Advocate for the Appellants. Mr. V. P. Thali, Advocate for the Respondent nos. 1 and 2. Coram :- A. H. JOSHI, J. Date :- 6 th AUGUST, 2009. JUDGMENT 1. The appeal is taken for final hearing by consent. 2. This is an appeal by unsuccessful defendant nos. 1 and 2. The learned Trial Judge has granted injunction restraining the present appellants. 3. It is seen that the plaintiffs in Special Civil Suit No. 52/08/III, they had claimed the reliefs as follows :- (A) For permanent injunction against the defendant, her servant, agent, relatives and/or representatives or from any third party interest to the suit plot and house and/or any part thereof and/or from alienating and/or dispossessing the same without the consent of the plaintiff. And for a declaration that the plaintiffs are co-owners of the suit house, suit plot. (B) The plaintiffs are entitled for all moveable lying in the said house so also taken away by committing theft by defendant no.1 or in alternate sum of Rs. 50,000/- as stated in plaint. (C) Plaintiffs are entitled for declaration that plaintiffs are entitled for ornaments lying in locker of defendant no.3 so also cash money lying in the account of late Sarojani with defendant no.4. 3 (D) The plaintiffs are also entitled for gold ornaments as per the list annexed herewith to plaint and recover it from defendant no.1 and 2. 4. In the body of plaint, they have claimed and averred in para 20 as follows :- “20. The plaintiffs state that when they found that defendant took away the above household articles by stealing or committing theft they changed the lock of the said house in order to avoid further interference of the defendant in the estate left by the grandparents and also to keep the assets intact. The said locking was also done as at the relevant time the plaintiffs were busy in their business at Valpoi and had to set out early in the morning and used to come at late night in the flat at Fatorda. The plaintiffs state that the defendant no.1 broke open the said locks put by the plaintiffs to the suit house and also filed a complaint against the plaintiff no.1 at Margao Police Station. The plaintiffs state that there was a meeting at police station with the intervention of police inspector Shri Dessai and for the first time, the plaintiffs came to know about will executed by Smt. Sarojani Sawant on 19th May, 2003. The plaintiffs could not read the said will but said Police Inspector informed the plaintiffs that defendant is also entitled for the equal share”. 5. It is seen that the plaintiff no.1 has filed the complaint to the police on 25.2.2006. In his complaint the plaintiff no.1 has in categoric terms stated that he has been dispossessed by the defendants. 4 6. In the written statement and affidavit in support thereof filed by the defendants ( present appellants ) have taken a specific plea that they are in possession of the suit property ever since and they have let out the blocks therein to the tenants and the tenants are paying to them the amount towards rent. Defendants have claimed to be exclusively in possession of suit property. 7. The fact that the appellants herein have never lived in the property is not in dispute even on their own plea. 8. The plaintiffs' claim is that at the most they are, defendants are co-owners. 9. Once the fact that the plaintiffs were not in possession on the date of the suit and tenants at present occupying the suit property were inducted by the defendants, the finding of the Trial Court that the plaintiffs have prima facie case and that the interim relief is liable to be granted is totally unsustainable being contrary to admitted facts. 10. The party who was not in possession cannot seek an injunction against the defendants on the presumption that the plaintiffs were in possession or that the plaintiffs were wrongfully dispossessed. 5 11. Result which has to follow is that the impugned order deserves to be set aside and has to be set aside on the admitted facts of defendants' possession. 12. In the result, appeal succeeds. The impugned judgment and order passed by learned III Additional Civil Judge Senior Division, Margao, in Special Civil Suit No.52/2008/III ( Regular Civil Suit No. 115/2006/III) passed on 23.12.2008 is set aside and application for temporary injunction filed by the plaintiffs is dismissed. 13. Parties shall bear their own costs. A. H. JOSHI, J. at*