1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 249 OF 2005 Shri Avinash P. Bhonsle, through his legal representatives: 1. Smt. Alini Avinash Bhonsle, 2. Shri Rajesh A. Bhonsle, 3. Smt. Sangeeta Rajesh Bhonsle, 4. Shri Prasad Avinash Bhonsle, 5. Shri Ritesh A. Bhonsle, 6. Smt. Ritika R. Bhonsle, 7. Shri Aniket A. Bhonsle Represented herein by their Power of Attorney Shri Rajesh A. Bhonsle Resident of Flat No.B-3 Neugi Nagar, Panaji, Goa. ... Appellants versus 1. Shri Parshuram Vinayak Lotlikar, Son of Vinayak Lotlikar, Major, Indian National, R/o House No.(not known) Britona, Bardez, Goa. 2 2. Communidade of Serula, Having its office at West Coast Residency, 1st floor, Opp. Bank of India, Alto Porvorim, Bardez, Goa. 3. The Administrator of Communidades, North Zone, Mapusa, Bardez, Goa. 4. The Chief Secretary, Government of Goa, Secretariat, Porvorim, Bardez, Goa. ... Respondents Mrs. A. Agni, Advocate for the Appellants. Shri P. A. Kamat, Advocate for Respondent No.2. CORAM : F. M. REIS, J. DATE : 11TH APRIL, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Decree dated 2-6-2005 passed by the learned Additional District Judge at Panaji in Regular Civil Suit No.7 of 1999. 2. The appellants filed the suit on the ground that the respondent No.1 owns a property which is surveyed under No.179/0 of 3 village Penha de Franca of Bardez Taluka and that the same came to be sub-divided by the respondent No.3 into different plots. It is further their case that the respondent No.3 conducted a public auction of the plots on annual lease. Accordingly, plot No.10 of lote No.155 admeasuring an area of 252.50 sq. meters was sought to be auctioned in January, 1984 and a notice was published in the Official Gazette dated 29-12-1983. The appellants applied for the said auction and were considered to be the highest bidder and accordingly were granted the said plot on an annual rent of Rs.4050/-. The appellants paid the first instalment of the said rent of Rs.4050/- and the said plot was thereafter converted into non-agricultural property. A Sanad was granted on 9-10-1997 and a letter was issued by the respondent No.2 to the original plaintiff on 6-8-1998 to that effect. A site inspection was held and the allotment of the said plot No.10 was confirmed by the respondent No.2 and the respondent No.3 accepted a sum of Rs.2,460/- from the original plaintiff after confirmation of the said grant. It is further their case that the Government of Goa also consented to the said grant in favour of the original plaintiff and on or about 23-9-1998 the original plaintiff was informed by the respondent No.2 that there was some confusion as regards the allotment of the suit plot. The original plaintiff visited the 4 suit plot on 23-9-1998 and saw some labourers working therein and upon inquiries was informed that there was work going on under the instructions of the respondent No.1. The respondent Nos.2 and 3 also informed that the suit plot was allotted to the respondent No.1 by mistake. The respondent Nos. 2 and 3 also promised the appellants to look into the matter but, however, they did not pay any attention to such grievances of the appellants. It is further their case that the suit plot was granted to the appellants after complying with all the formalities, and as such, according to them they are entitled to provisional possession of the suit plot. It is further their contention that no auction was held prior to the grant of the suit plot in favour of the respondent No.1 and as such, the occupation of the respondent No.1 over the suit plot was unlawful for the reasons as stated in the plaint. The appellants sought for a declaration that the suit plot belongs to the appellants as a lease holder under a valid lease. They also prayed for a mandatory injunction directing the respondent Nos.2 and 3 to hand over the provisional possession of plot No.10 besides the declaration that the Order dated 25-9-1996 as well as the certificate handing over the possession dated 15-7-1996 is null and void. The appellants also prayed for a permanent injunction and further for an alternative prayer to refund the said sum of Rs.4050/- with interest 5 at the rate of 18% from the date of its payment upto actual payment. The appellants also sought for damages to the tune of Rs.50,000/- with interest from the date of filing of the suit until actual payment. The respondents though served failed to file any written statement disputing the claim put forward by the appellants. 3. The learned Judge after framing the points for determination and after recording the evidence, partly decreed the suit and directed, inter alia, the respondent No.3 to refund to the appellants a sum of Rs.4,050/- with interest at the rate of 6% per annum from 25-1-1984, and an amount of Rs.2460/- with interest at the rate of 6% from 24-8-1998 and the amount of Rs.840/- with interest at the rate of 6% per annum from 25-6-1997 till actual payment. The remaining reliefs sought by the appellants came to be rejected. The appellants being aggrieved by the said Judgment and Decree preferred the present appeal. 4. Mrs. A. Agni, the learned Counsel appearing for the appellants has assailed the impugned Judgment and pointed out that the learned Judge has failed to consider that the allotment which was in favour of the respondent No.1 is null and void as according to her no 6 procedure as envisaged in the Code was followed at the time of the grant of the plot in favour of the respondent No.1. Learned Counsel further submitted that the Communidade had complied with all the legal formalities as provided under the Code and held an auction as envisaged therein and thereafter allotted the suit plot in favour of the appellants. Learned Counsel further submitted that as the occupation of the respondent No.1 is unlawful and not in accordance with law, the question of confirming such a grant in favour of the respondent No.1 would not arise. Learned Counsel took me through the evidence on record and pointed out that the appellants were considered to be successful auction bidders of the suit plot and the appellants were entitled to the provisional possession of the suit plot. Learned Counsel further submitted that the appellants suffered substantial damages as they were deprived of the suit plot where the appellants had intention of erecting a construction. Learned Counsel further submitted that all the requirements for putting up a construction in the suit plot were already made and on account of an illegal action on the part of the respondent Nos.2 and 3, the appellants were deprived of using the suit plot for no fault of theirs. Learned Counsel further submitted that in any event, the learned trial Judge was not justified in refusing the damages to the tune of Rs.50,000/- which 7 was the sum assessed by the appellants as damages on account of the illegal action on the part of the respondent No.3. Learned Counsel further submitted that the appellants have sought interest at the rate of 18% on the amount which has been admittedly paid by the appellants to the respondent No.3, and the learned Judge without any adequate reasons has awarded interest at the rate of 6% which does not justify in the facts and circumstances of the case. Learned Counsel has taken me through the evidence on record as well as the impugned Judgment and pointed out that the learned Judge has misdirected itself in passing the Judgment and hence the appeal deserves to be rejected. 5. Shri P. A. Kamat, learned Counsel appearing for the respondent No.2 has supported the impugned Judgment. Learned Counsel submitted that under the provision of Article 338 of the Code of Communidades until and unless the provisional possession is granted in favour of the person who has been granted land of the Communidades, the question of any right accrued to the appellants would not arise. Learned Counsel further submitted that in the present case as the possession was not given to the appellants as the appellants were not entitled to the the suit plot. Learned Counsel further submitted that the 8 learned Judge has rightly appreciated the evidence on record and has come to the conclusion that as the records of the grant of the suit plot in favour of the respondent No.1 were not produced by the appellants, the presumption in law has been rightly drawn by the learned Judge that the grant in favour of the respondent No.1 is presumed to be lawful. Learned Counsel further submitted that on a query of the Court as to why the appellants would not be entitled for damages, the learned Counsel submitted that the appellants have failed to establish any damages sustained by them but, however, learned Counsel submitted that though the appellants have not proved any such actual damages as sustained by them nevertheless the rate of interest awarded by the learned Judge could be enhanced at 12% to mitigate the damages whilst exercising the discretion in accordance with law. Learned Counsel took me through the impugned Judgment and pointed out that there is no infirmity committed by the learned Judge whilst passing the impugned Judgment, and as such, the appeal deserves to be rejected. 6. On perusal of the impugned Judgment, I find that the learned Judge whilst deciding issue No.1 has rightly come to the conclusion that the appellants are not entitled to claim the suit plot. The 9 learned Judge has relied upon Articles 324, 329, 330, and 334 of the Code of Communidade as well as Article 338 of the Code of Communidades to come to such conclusion. In fact, Article 338 of the Code of Communidades provides that the provisional charge of a plot cannot be taken into account as far as judicial rights of the lessee are concerned it being an act of mere tolerance and only the final charge confers on the lessee the rights recognized by the Civil Code. The lessee is, however, entitled after the provisional charge to fight for his rights by other conservatory means against a third party. In the present case, admittedly, the appellants were not granted any provisional possession and as such no right can be recognized over the suit plot in their favour. The learned Judge as such was justified to come to the conclusion that the appellants were not entitled to claim possession of the suit plot. Whilst discussing about the legality of the grant of the respondent No.1, the learned Judge has rightly relied upon the provision of Section 114 of the Evidence Act and as the appellants have failed to produce the records of the grant in favour of the respondent No.1. As such, I find no infirmity in the findings of the learned Judge on such findings. 10 7. Dealing with the claim of alternative relief as sought by the appellants, I find that the records reveal that in fact the respondent No.3 conducted the auction of the suit plot and there is no dispute that the appellants were the highest bidders of the suit plot. Apart from that, the fact that the plot was allotted to the respondent No.1 was not brought to the notice of the appellants at the time of conducting the auction. The appellants were made to believe that the suit plot was available for allotment. The first instalment of the rent as well as the remaining amount as stated in the plaint were paid by the appellants which have not been disputed by the respondent Nos.2 and 3. Such action on the part of the respondent Nos.2 and 3 would entitle the appellants to claim damages from the said respondent on account of their illegal action of holding the auction and inducing the appellants to believe that they would be allotted the suit plot. The respondent Nos.2 and 3 have also failed to file a written statement disputing the said claim for damages by the appellants. But, however, the claim of Rs.50,000/- as damages has not been established by the appellants by any material on record. Even in the affidavit in evidence of PW1 there is no statement recorded therein with regard to such claim of damages. Nevertheless in view of the illegal 11 action of the respondent Nos.2 and 3, the plaintiff would otherwise be entitled for some amount on such count. 8. Dealing with the refund of the amounts admittedly paid by the appellants, the learned Judge has rightly directed that such amount should be refunded to the appellants. However, considering the facts and circumstances of the case wherein the appellants are wrongly deprived of the suit plot though they were successful auction bidders of such plot, I find that the appellants should be paid a higher rate of interest than the one awarded by the learned Judge in the peculiar facts of the case so as to mitigate the damage sustained by the appellants on account of the illegal action on the part of the respondent Nos.2 and 3. Taking note of the fair submission of the learned Counsel for the respondent No.2, I find that the interest to be awarded to the appellants should be at the rate of 12% instead of 6% as awarded by the learned Judge. To that extent, the impugned Judgment is to be modified. 9. In view of the above, I pass the following Order:- ORDER 1. The appeal is partly allowed. 12 2. The impugned Judgment and Decree dated 2-6-2005 is modified and the amount directed to be paid to the appellants as referred to therein shall carry interest at the rate of 12% instead of 6% per annum as stated therein. 3. The remaining part of the Judgment is confirmed. 4. The appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. RD