... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.683 OF 2009 1. Mrs. Maria Luiza Vaz Barreto, daughter of late Antonio Caetano Vaz, aged 62 years, married, housewife, and her husband, 2. Mr. Juvencio Ivo da Piedade Barreto, son of late Domingos da Piedade Barreto, aged 75 years, retired Both r/o House No.57, Sirvodem, Navelim, Salcete, Goa. ...Petitioners V e r s u s 1. Mr. Tony Vaz, aged 44 years, married, businessman and his wife, 2. Mrs. Gracy Elizabeth Vaz, daughter of late Sertorio Gomes, aged 40 years, housewife, Both r/o House no.2588, behind Govt. Middle School, Ambajim, Fatorda, Salcete, Goa. ... Respondents Mr. J. E. Coelho Pereira, Senior Advocate with Mr.S. Karpe, Advocate for the Petitioners. Mr. S. D. Lotlikar, Senior Advocate with Mr. H. Kankonkar Advocate for the respondents. ... 2 ... CORAM: R. M. SAVANT, J. DATED: 26th November, 2009. ORAL ORDER: This petition takes exception to the order dated 29.09.2009 passed by the learned Ad-hoc District Judge, Margao, by which order the appeal filed by the respondents herein came to be partly allowed and the order passed by the Trial Court rejecting the application for injunction came to be set aside and injunction came to be granted, restraining the petitioners herein from interfering with the plinth area of the house, in occupation of the plaintiffs and also restrained from doing any construction on the 3 mtrs. wide access leading to the house while doing the construction in the suit property. 2. The respondents herein are the original plaintiffs who have filed the suit for declaration and injunction in respect of the property surveyed under chalta no.10 of P.T. Sheet no.15 including the ancestral house bearing no.321. The injunction sought is in respect of the said property. This ... 3 ... is on the basis that the plaintiffs have undivided share and interest in the said suit property. The plaintiff no.1 claimed to be the son of one Antonio Caetano Vaz and his wife Enefina Maria da Costa. The suit property has an ancestral house of the said Antonio Caetano Vaz. It is on the said basis that half undivided share is claimed. The plaintiffs also claim to have a house in the suit property, which they claimed they have constructed themselves. 2. In the said suit, an application for temporary injunction came to be filed by the plaintiffs for restraining the defendants from doing any construction in the suit property or demolishing the ancestral house. The defendants opposed the said application and questioned the fact of the plaintiff no.1 being the son of the said Antonio and Enefina. The defendants claim the said property to be their exclusive property and denied that the plaintiffs have any share therein. The said application for temporary injunction was heard by the Trial Court and by order dated 21.08.2009, the said application came to be rejected. One of the grounds on which ... 4 ... the said application was rejected was that prima facie it could not be said that the petitioner was the son of Antonio and Enefina. The matter was carried in appeal by the plaintiffs against the said rejection order. The Appellate Court by the impugned order has reversed the order of the Trial Court by partly allowing the appeal to the extent of permitting the defendants to construct without interfering with the house constructed by the plaintiffs and the 3 mtrs. wide access leading to that house. The plaintiffs have relied upon one set of documents which comprise of the Baptism Certificate and the Birth certificate whereas the defendants have relied upon another set of document which comprise of the Gift Deed dated 30.04.1966 and the property Registration (Form D) wherein the name of the defendant no.1 appears. The lower Appellate Court after observing that the defendants are the absolute owners by virtue of the Gift Deed, has restricted the relief, by allowing the defendants to construct to the extent mentioned in the said order. The Appellate Court placed reliance on the fact that the house was constructed by the plaintiffs for which the defendants had given no objection. ... 5 ... The Appellate Court has held that the defendants have a right in the suit property and therefore permitted them to construct while so doing it is directed that they should not interfere with the house of the plaintiffs and the 3 mtrs. wide access. 3. Both the learned Senior counsel appearing for the parties have made submissions in support of their respective cases. The suit raises a triable issue in so far as the claim of the plaintiff no.1 being the son of the said Antonio and Enefina, which goes to the root of the matter. The Trial Court has also observed that the parties are relying upon two sets of documents. The defendants seek to develop the entire property whereas the plaintiff no.1 claims half share in the said property which he claims to be ancestral. There is something which can be said in favour of either of them. In my view, therefore, interdicting with the impugned order, at this stage, and allowing the defendants to construct on the entire property would further complicate the issue. In my view therefore, interest of justice would be served if the injunction order as is granted by the Appellate Court is ... 6 ... directed to operate pending the decision of the said suit, and the Trial Court is directed to dispose of the said Regular Civil Suit No.148/2009/F within a particular time frame. Both the learned Senior counsel do not have serious objection to the said course of action being followed. In that view of the matter, the following directions are issued: 1. The temporary injunction granted by the lower Appellate Court by the impugned order dated 29.09.2009 would continue to operate pending the hearing and final disposal of the said Regular Civil Suit No.148/2009/F. 2. The Trial Court i.e. Civil Judge, Junior Division, Margao to hear and dispose of the said suit by 31.10.2010. 3. Needless to say that the Trial Court would decide the suit on its own merits and in accordance with law uninfluenced by the observations made in the impugned order or the instant order. ... 7 ... With the aforesaid directions the above petition is disposed of. R. M. SAVANT, J. lh/.