1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.772 OF 2009 1. Mrs. Maria Catarina Sebastiana D'Souza, aged 76 years, Landlady, widow of Lawrence Libanio T.D'Souza, r/o. H.No.151, Moicavaddo, Pilerne, Bardez, Goa – 403 114. (since deceased) through Legal Representatives: 1(a) Mrs. Bernadette Milred Sebastian D'Souza, and her husband 1(b) Felix C. D'Souza, both residing at 29/1355 Sardar Nagar No.3, M.S.V. Colony, Sion Koliwada, Bombay 22. 1(c) Mrs. Caterine J. Vaz, and her husband 1(d) Mr. Anthony Hillary Vaz, Both residing at 29/1355 Sardar Nagar No.3, M.S.V. Colony, Sion Koliwada, Bombay 22. 1(e) Mrs. Anjela Rose Viegas, and her husband 1(f) Mr. Anthony M. Vaz, Both residing at 29/1355 Sardar Nagar No.3, M.S.V. Colony, Sion Koliwada, Bombay 22. 2. Mrs. Maria Preciosa Aurora D'Souza, aged 81 years, Landlady, 2 widow of Julius Claudius D'Souza, r/o. H.No.55, Moicavaddo, Pilerne, Bardez, Goa. 3. Mrs. Marlene Dolwani, aged 51 years, w/o. Mr. Dilip Dolwani, r/o. H.No.55, Moicavaddo, Pilerne, Bardez, Goa. 4. Mrs. Maria Nicolete Melanie D'Souza, aged 46 years, w/o. Mr. Roger D'Souza, r/o. H.No.55, Moicavaddo, Pilerne, Bardez, Goa. 5. Ms. Maria Agnes Melita De Souza, aged 43 years, r/o. H.No.55, Moicavaddo, Pilerne, Bardez, Goa. 6. Ms. Maria Macella Mavis Pereira, aged 40 years, wife of Mr. Prakash Gabriel Pereira. 7. Mr. Prakash G. Pereira, aged 48 years, s/o. Luis Anthonio Pereira, in business, both r/o's. H.No.891/1, Socorro Panchayat Road, Porvorim, Bardez, Goa. …. Petitioners V/s 1. Mr. Sadanand Krishna Narvekar, aged about 50 years, s/o. Late Krishna Jairam Narvekar, in business and his wife. 2. Mrs. Kala Sadanand Narvekar, aged about 45 years, wife of defendant no.1, housewife. 3 3. Mr. Siddesh Sadanand Narvekar, aged about 22 years, s/o. Sadanand Narvekar. All r/o's Malna, Pilerne, Bardez, Goa. (House No. not known) 4. Mrs. Vilashini S. Narvekar, aged about 45 years, widow of late S.K. Navekar, r/o. Maina, Pilerne, Bardez, Goa. (House No. not known) 5. Mrs. Angela Rose Viegas, aged 41 years, married, housewife, d/o. Late Lawrence transposed as Libanio T.D'Souza, petitioner no.1(e) r/o. H.No.98, Moicavaddo, Pilerne, Bardez, Goa 403 114. …. Respondents Shri J.E. Coelho Pereira, Senior Advocate with Shri V. Korgaonkar, Advocate for the Petitioners. Shri D. Pangam, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 8th SEPTEMBER, 2011 ORDER : Heard Shri J.E. Coelho Pereira, learned Senior Counsel appearing for the petitioners and Shri D. Pangam, learned Counsel appearing for the respondents. 2. The above petition challenges the Judgment dated 25/03/2009 passed by the lower Appellate Court whereby 4 Miscellaneous Civil Application preferred by the petitioners bearing no.12/2007 was partly allowed and the respondents were restrained by a temporary injunction from carrying out any further construction to the suit structure or any other construction to the suit property pending final disposal of the suit. 3. The petitioners filed the suit on the ground that there is a property known as “Malna Pequeno” surveyed under no.12/5 admeasuring an area of 8925 square metres and also a property known as “Malna Pequeno Corona” surveyed under no.24/1 admeasuring an area of 21,500 square metres situated at Pilerne and that the property has been divided at the time of the new survey. It is further the case of the appellants that in the property surveyed under no.12/5 there exists an old structure having an area of 100 square metres approximately which has been gradually and illegally extended by the respondents to the extent of 143 square metres. It is further their case that illegal construction consists of new structure of wooden bamboo frame of 53 square metres, new structure under construction consisting of half constructed unplastered laterite stones masonary walls occupying a plinth area of 144 square metres, a new structure of wooden frame work with 5 A.C. room admeasuring an area of 27 square metres, earlier structure of wooden framework with an area of 3 square metres and another new structure under construction having an area of 36 square metres besides a new wooden frame occupying an area of 34 square metres, an illegal extension carried out to the old house. It is further his case that illegal work of construction started about 8 to 10 days prior to 5/04/2006 and accordingly the suit has been filed along with an application for temporary injunction praying inter alia that the respondents and their family members, agents, labourers and all person/s be restrained from interfering with the possession of the appellants in respect of the suit property in whatsoever manner and also from carrying out any further construction work to the suit property. By order dated 25/01/2007 the learned Civil Judge Senior Division at Mapusa dismissed the application for temporary injunction filed by the appellants. Being aggrieved by the said judgment the appellants preferred an appeal before the learned Additional District Judge whereby the appeal was partly allowed and the respondents were inter alia restrained from carrying out any further construction to the suit structure and any other construction work in the suit property pending disposal of the suit. The remaining part of the injunction prayed by the 6 appellants came to be rejected. 4. By the present petition, the petitioners seek to quash the part of the order dated 25/03/2009 refusing the temporary reliefs and prays that the application for temporary injunction be granted in toto as prayed for. 5. On perusal of the impugned judgment passed by the lower Appellate Court it has been held therein that the question as to who is in possession of the suit property would have to be adjudicated after recording of evidence and, as such, at this stage injunction cannot be granted to restrain the respondents from interfering with the possession of the petitioners over the suit property. As it is an admitted fact that the respondents had their house and structures constructed in the suit property, only part of the relief was granted in favour of the petitioners restraining the respondents from carrying out any construction work in the said property. 6. After hearing the learned Counsel, I find that granting of injunction as prayed for by the petitioners would result in dispossession of the petitioners from the suit property at this stage 7 of the suit which cannot be allowed. It is not in dispute that the respondents have their house in the suit property and substructures therein and, as such, the question of restraining the respondents from interfering with the suit property in any manner would not arise. As such the lower Appellate Court was justified to refuse that part of the injunction prayed for by the petitioners. Considering the evidence on record and the findings of the lower Appellate Court which are prima facie findings arrived at after appreciating the evidence on record, I find that there is jurisdictional error committed by the lower Appellate Court which calls for an interference by this Court under Article 227 of the Constitution. The lower Appellate Court has rightly appreciated the evidence on record and has refused the injunction sought for by the petitioners not to interfere with the suit property pending disposal of the suit. Hence no interference is called for in the impugned order passed by the lower Appellate Court. 7. At this stage Shri J.E. Coelho Pereira, learned Senior Counsel further pointed out that the respondents have claimed that they are the tenants of the suit property and, as such, an issue to that effect has been framed and referred to the learned Mamlatdar 8 in the said Regular Civil Suit No.88/2006. As said issue has not been finally disposed of, the disposal of the suit is being delayed. The learned Counsel accordingly seeks for a direction to the learned Mamlatdar to expeditiously dispose of the tenancy case. Taking note of the grievance of the learned Senior Counsel which is not objected by Shri Pangam, the learned Counsel appearing for the respondents, the learned Mamlatdar is directed to dispose of the reference made in Regular Civil Suit No.88/2006/C as expeditiously as possible and in any event within one year from the date of receipt of this order. 8. The petition stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-