1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NOS.680/2010 AND 10/2011. WRIT PETITION NO.680/2010 1. Smt. Sunila Sapra 2. Smt. Gauri Sapra Both major of age, resident of 306, Nizmar Centre, Panaji, Goa 403 001 .. Petitioners v e r s u s 1. Smt. Pramila Ravindra Mardolkar, major, aged about 50 years, daughter of late Ganesh Tukaram Parsekar, residing at House No. 523, Arpora, Bardez, Go 403 presently residing at flat no.C-101, Aakash Bhavan, Opp. Mathias Plaza, Panaji, Goa. 2. Alcon Hotels (Goa) Pvt. Ltd., a Private Limited Company, Incorporated under the Companies Act, 1956, having its registered Office at Sukerkar Mansion, 1st Floor, M.G.Road, Panaji, Goa 3. Shri Fernando Mascarenhas, 4. Smt. Serena Mascarenhas, Both residing at 3, Beach Nest Apartments Miramar, Panaji. .. Respondents Mr. J. E. Coelho Pereira, Senior Advocate with Mr. V. Braganza, Advocate for the petitioners. Mr. J. P. Mulgaonkar, Advocate for respondent no.1. Mr. V. A. Lawande, Advocate for respondent no.2. 2 Mr. J. Godinho, Advocate for respondent nos.3 and 4. WITH WRIT PETITION NO.10/2011 Smt. Pramila Ravindra Mardolkar, Major, aged about 50 years, Daughter of late Ganesh Tukaram Parsekar, residing at House No.523, Arpora, Bardez, Goa 403 presently Residing at flat no.C-101, Aakash Bhavan, Opp. Mathias Plaza, Panaji Goa. .. Petitioner v e r s u s 1. Smt. Sunila Sapra 2. Smt. Gauri Sapra Both major of age, Residents of 306, Nizmar Center, Panaji, Goa 403 001. 3. Alcon Hotels (Goa) Pvt. Ltd., A Private Limited Company, Incorporated under the Companies Act, 1956, having its registered Office at Sukerkar Mansion, 1st Floor, M.G.Road, Panaji, Goa. 4. Shri Fernando Mascarenhas, 5. Smt. Serena Mascarenhas, Both residing at 3, Beach Nest Apartments Miramar, Panaji. .. Respondents Mr. J. P. Mulgaonkar, Advocate for the petitioner. Mr. J. E. Coelho Pereira, Senior Advocate with Mr. V. Braganza, Advocate for respondent nos.1 and 2. Mr. V. A. Lawande, Advocate for respondent no.3. 3 Mr. J. Godinho, Advocate for respondent nos.4 and 5. CORAM : A. P. LAVANDE, J. Reserved on : 27 th April, 2011. Pronounced on : 7 th June, 2011. JUDGMENT : Heard learned Counsel for the parties. 2. Rule. By consent heard forthwith. 3. Both these petitions filed under Article 227 of the Constitution of India are being disposed of by common judgment since the challenge in both Writ Petitions is to the judgment and order dated 28th June, 2010 passed by the District Judge-II, North Goa, Panaji in Miscellaneous Civil Appeal No.90/2010. In Writ Petition No.680/2010, the petitioners have also challenged the order dated 22nd March, 2010 passed by the Civil Judge, Senior Division, Mapusa in Regular Civil Suit No.89/2009/F whereby the trial Judge partly allowed the injunction application restraining the defendants, their agents etc. from interfering with the plaintiff's possession over the suit plot and the suit house and from carrying out any further construction in the suit plot. 4 4. The petitioner in Writ Petition No.10/2011 filed the above suit against the respondents / defendants seeking the following reliefs : “(a) For a perpetual injunction restraining the defendants, their agents, servants, relations and/ or any person acting through or under them: (i) from interfering with the plaintiffs' possession of the suit plot and the suit house; (ii) from doing any further construction in the suit plot and/ or; (iii) from changing the status quo in respect of the suit plot in any manner whatsoever or creating any third party rights in respect of the suit plot or any part thereof. (b) for a mandatory injunction ordering the defendants to remove the encroachment on the suit plot by pulling down the construction done so far and for restoration of the status quo ante.” and pending the disposal of the suit, sought temporary injunction restraining the defendants from carrying out further construction in the suit plot and interfering with the suit house. Parties shall hereinafter be referred to as per their status before the trial Court. 5 5. The case of the plaintiff in brief is that the plaintiff along with her sisters Kheju Painekar and Pushpa Parshekar are the owners in possession of the plot of land having an area of 300 square metres in the property known as 'Baga' bearing survey no.155/01 situated at Arpora in which they have dwelling house bearing No.523. The suit plot was purchased from defendant nos.4 and 5 by duly registered sale deed dated 28th December, 2006 and their names have been recorded in the survey records. According to the plaintiff, the defendants started interfering with the suit plot by carrying out construction in the suit plot somewhere in May 2009. Initially, the construction was stopped by the Panchayat, but thereafter, no action was taken by the Panchayat and as such, the plaintiff was compelled to file the above suit. 6. The case of defendant nos.1 and 2/ petitioners in W. P. No.680/2010 is that they are owners of plot nos.75 and 98 in Dr. Constancio Mascarenhas riverview by virtue of the sale deed dated 31st January, 2008. The said plots were subdivided plots forming part of the larger property surveyed under survey no.155/1 and 154/5 admeasuring 1,15,160 square metres; the suit house falls within the plot identified in the plan as plot no.76 having area of 300 square metres; the description of the suit plot is vague and defendant nos.1 and 6 2 have carried out construction in the plot no.75 purchased by them and they have applied for the construction of the compound wall in the plot no.98; the constructions have been carried out pursuant to the licence granted by the Panchayat; subsequently, a deed of rectification was executed by the owners with Meena Harmalkar and Mangala Harmalkar since inadvertently though plot no.100 was conveyed, there was an apparent mistake / error. 7. The Panchayat after verifying the documents and physical possession at site, had issued permission to defendant nos.1 and 2 to carry out construction in the plot nos.75 and 98 after completion of all the formalities and the notice stopping the construction was given by the Panchayat; defendant nos.1 and 2 had not encroached in the suit plot and as such, the plaintiff had no cause of action to file the suit and the application for temporary injunction. 8. The case of defendant no.3/ respondent no.2 in W.P. No.680/2010 is that it had entered into an agreement for development dated 21st July, 2004 with defendant nos.4 and 5/ respondent nos.3 and 4, who are the owners of the property. After subdividing the property, plot nos.75 and 98 were sold to defendant nos.1 and 2; at the instance of the 7 Sarika Divkar, who was at that time the deputy sarpanch of Panchayat of village Arpora, Dr. Fernando Mascarenhas agreed to settle the claim of the plaintiff and her sisters along with the claim of Meena Harmalkar by conveying them the plots where their huts existed and plot nos.76 and 100 respectively were sold by Dr. Mascarenhas in good faith without intervention of defendant no.3 and any legal assistance as per the instruments produced by said Sarika Divkar. 9. When the plaintiff raised the dispute that defendant nos.1 and 2 had encroached in the suit plot, Dr. Fernando Mascarenhas realised that in the sale deeds in favour of the plaintiff and her sisters, there were inadvertent errors and the sale deeds did not reflect the correct identity of plots which were intended to be conveyed to them and thereafter, Meena Harmalkar agreed to execute the deed of rectification, but the plaintiff did not agree. 10. The case of defendant nos.4 and 5 is on the same lines as defendant no.3. Defendant nos.4 and 5 have filed counterclaim for declaring the sale deed dated 28th December, 2006 executed in favour of the plaintiff and her sisters to be null and void. 8 11. The application for injunction was contested by the defendants. Both the parties relied upon several documents. The trial Court formulated the following points for determination : (i) Whether the plaintiff proves that she has prima facie case for granting relief of temporary injunction in her favour ? (ii) Whether the plaintiff proves that an irreparable loss shall be caused or occasioned to her if the injunctive reliefs claimed are not granted in her favour ? (iii) In whose favour the balance of convenience lies ? 12. The trial Court answered the first point partly in affirmative and the other two points in favour of the plaintiff. The trial Court held that though the plaintiff has not produced on record any report of an expert showing the physical identification of the suit plot vis-a-vis the plots purchased by her, it was an admitted fact that the plot admeasuring 300 square metres was sold to her by defendant nos.4 and 5. The trial Court further held that the defendants had also not clearly shown any physical identification of the suit plot with plot no.76 and the suit plot no.76 differed with its boundaries, location and area. Placing reliance upon the sale deed dated 9 28th December, 2006 in favour of the plaintiff and her sisters and in view of the fact that no deed of rectification was executed and considering that the construction is going on in the plot bearing survey nos.75 and 98, the trial Court held that the plaintiff was entitled to injunction and partly allowed the application restraining the defendants from interfering with the plaintiff's possession over the suit plot and the suit house and from doing any construction in the suit plot. 13. In appeal preferred by defendant nos.1 and 2, the lower appellate Court held that the case of defendant no.4 that he signed the sale deed in favour of the plaintiff and her sisters even without going into the legality of the deed and in good faith, was not acceptable being highly improbable. The lower appellate Court held that when the plot was sold to the plaintiff on 28th December, 2006 on which day the property was not subdivided since final NOC of subdivision was obtained on 13th May, 2008. The lower appellate Court further held that the plaintiff could not produce any reliable document to identify her plot except plan annexed to the sale deed. However, the lower appellate Court held that the house of the plaintiff exists near the place where the construction was going on. The lower appellate Court further held that the report produced by defendant nos. 4 and 5 of 10 Surveyer Shri S. A. Dhuri does not advance the case of defendant nos.4 and 5 since it does not show that the construction was not carried out in the property of the plaintiff. The lower appellate Court held that the photographs produced by the plaintiff demonstrated that the construction was being carried out at a distance of about 4 to 5 metres. The lower appellate Court further held that the sketch showing illegal encroachment shows that construction was carried out towards western side of the house of the plaintiff, which meant that there may be some encroachment in the property of the plaintiff. It was further held that the case of the defendant that there was mistake in mentioning plot no.100 was difficult to be believed in view of long standing dispute between the father of the plaintiff and defendant no.4. It is further held that the plaintiff has shown that she has right in the suit plot which is sold to her. The lower appellate Court relied upon the photographs produced by the plaintiff which showed that the construction was being carried out near the house of the plaintiff. The lower appellate Court did not find favour with the argument raised on behalf of defendant nos.1 and 2 that since the construction was at very advanced stage, they could be put to terms. In paragraph no.35 of the judgment, the lower appellate Court held that the plaintiff was unable to say that the structure 11 falls in the plot which was sold to them. The lower appellate Court thereafter held that since both the structures constructed by defendant nos.1 and 2 do not fall within the suit plot, the order passed by the trial Court was required to be modified and the order of restrain shall only be binding on the defendant so far as the structure which is close to the house of the plaintiff bearing no.523. The operative part of the order passed by the trial Court reads thus : “(i) The appeal is partly allowed. (ii) The application for injunction filed by the plaintiff is partly allowed. (iii) The impugned order is modified and it is clarified that the order of restrain shall not be binding to the structure which is away from the suit house of the plaintiff.” 14. Mr. Coelho Pereira, learned Senior Counsel appearing on behalf of the petitioners in W.P. No.680/2010, who are defendant nos.1 and 2 in the suit, submitted that both the Courts have not appreciated the fact that the plaintiff has not identified the suit plot in as much as the plan annexed to the sale deed dated 28th December, 2006 does not clearly indicate the location of the suit plot in the larger property bearing survey No.155/1 and 154/5. Learned Counsel further submitted that in the absence of 12 identification of the suit plot, the plaintiff is not entitled to any relief against the defendants, who have purchased the two plots bearing survey nos.75 and 98 and carrying out the construction in the said two plots after obtaining the necessary licences from the concerned authorities. Learned Counsel took me through the relevant material placed before the trial Court by the parties and submitted that upon proper appreciation of the material placed on record before the trial Court, injunction granted by the lower appellate Court, cannot be sustained. He further submitted that the construction is almost complete and, therefore, the impugned order is causing serious prejudice to the petitioners. He further submitted that the petitioners could be put to terms while rejecting the application for injunction filed by the plaintiffs. Learned Counsel further submitted that both the Courts below have not considered that irreparable loss and injury would be caused to defendant nos.1 and 2 in the event injunction sought by the plaintiff is granted against them. Learned Counsel submitted that this Court in exercise of jurisdiction under Article 227 is entitled to grant relief in favour of the petitioners and remand in the matter to the lower appellate Court is not necessary in view of the materials produced by both the parties before the trial Court which clearly disclose that the plaintiff has not made out any 13 case for grant of injunction in her favour. According to learned Counsel, both the Courts below have not exercised jurisdiction in accordance with the settled principles governing the applications for grant of interim relief. In support of his submissions, Mr. Coelho Pereira, learned Senior Counsel relied upon the following judgments : (i) Venkatesh B. Raikar Vs. Vassant R. Raikar; 1998(2) G L T 487. (ii) Surya Dev Rai Vs. Ram Chander Rai and others; (2003)6 SCC 675. 15. Mr. Lawande, learned Counsel appearing on behalf of defendant no.3 and Mr. Godinho, learned Counsel appearing for defendant nos.4 and 5 adopted the submissions made by Mr. Coelho Pereira, learned Senior Counsel for the petitioners in W.P. no.680/2010. 16. Mr. Mulgaonkar, learned Counsel for the plaintiff submitted that the plaintiff is entitled to injunction restraining the defendants from carrying out any construction in the suit plot. He fairly conceded that the findings recorded by the lower appellate Court and the operative part of the order, cannot be reconciled and further submitted that on this ground, the plaintiff cannot be non-suited since prejudice 14 would be caused to the plaintiff in the event defendant nos.1 and 2 are permitted to proceed with the construction and interfere with the proprietary rights of the plaintiff. Mr. Mulgaonkar submitted that although the order passed by the lower appellate Court is in her favour, the plaintiff has filed Writ Petition No.10/2011 challenging the said order since the operative part of the order is vague and does not in clear terms state that the defendants are restrained from carrying out any construction in the suit plot although the suit plot has been clearly identified in terms of the sale deed dated 28th December, 2006 and plan annexed thereto. In so far as the argument advanced by Mr. Coelho Pereira that since the construction is almost complete and as such the balance of convenience is in favour of defendant nos.1 and 2 is concerned, learned Counsel submitted that the construction has been carried out during the pendency of the application for injunction and as such, the said defendants cannot claim any equity in their favour since the construction has been carried out at their own risk. According to Mr. Mulgaonkar, jurisdiction exercised by this Court either under Article 226 or 227 is not an appellate jurisdiction and since no jurisdictional error has been committed by the lower appellate Court. Though the operative part of the impugned order is vague, the defendants ought not to be permitted to 15 carry out any construction thereby infringing upon the proprietary right of the plaintiff. In support of his submissions, Mr. Mulgaonkar relied upon the judgment of the Apex Court in the case of Abdul Razak (Dead) hrough LRs. and Others Vs. Mangesh Rajaram Wagle and others; (2010)2 Sc 432. 17. I have carefully considered the rival submissions and perused the record and the judgments relied on. 18. In the case of Venkatesh Rai and another (supra), the learned Single Judge of this Court has held that plan attached to the pleadings no doubt forms part of the pleadings, but a plan attached to the plaint, cannot form the pleadings as the plan is pictorial representation of the facts made in the plaint. The said judgment is of no help to defendant nos.1 and 2. 19. In the case of Surya Dev Rai (supra), the Apex Court in paragraph no.38 has summarised the parameters of jurisdiction under Articles 226 and 227 of the Constitution of India. Paragraph 38 reads thus : 16 “38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder : (1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction – by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4)Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate court has 17 assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied:(i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self- evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to 18 be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorary and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in 19 place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.” 20. Perusal of impugned order dated 28th June, 2010 passed by the lower appellate Court to which reference has been made hereinabove, clearly discloses that several findings have been rendered against the plaintiff, but ultimately, the appeal has been partly allowed and the injunction sought by the plaintiff has been partly granted. It is well settled that the appellate Court dealing with an order granting or refusing injunction passed by the trial Court has to first deal with the reasons given by the trial Court and thereafter, give findings based on the materials on record produced by both sides. An appellate Court dealing with the order of injunction by the trial Court is the final Court of facts and is bound to analyse the materials produced by both sides and find out whether the reasons given by the trial Court for granting or refusing injunction are sustainable in law and thereafter pass an appropriate order in accordance with the 20 settled principles governing the application