1 IN THE HIGH COURT OF BOMBAY AT GOA Appeal From Order No.58 of 2009 1. Smt. Mirabai Pandurang Sinai Lotlikar also known as Indumati Cundo, aged about 80 years, wife of late Pandurang Bhagwant Sinai lotlikar, residing at C/o Shri Damodar Datta Sinai Cundo, Flat No.12, Wing no.4, Lorence Plaza, Opposite Multipurpose High School, Borda, Margao-Goa. 2. Shri Digambar Yeshwant Dhond, aged 35 years, bachelor, son of Yeshwant Dhond, r/at H.No.38, Nachinola,P.O. Aldona, Bardez,Goa. 3. Shri Damodar Datta Sinai Cundo, r/o Flat No.12, Wing no.4, Lorence Plaza, Opp. Multipurpose High School, Borda, Margao-Goa ..... Appellants V e r s u s 1. Shri Mahesh Shridhar Kenkre, son of late Shridhar Kenkre, aged 50 years, and his wife 2. Smt. Sadhana Mahesh Kenkre, 44 years of age. 3. Shri Damodar Shridhar Kenkre, son of late Shridhar Kenkre, aged 49 years, and his wife, 4. Smt. Nandini Damodar Kenkre, aged 45 years, 5. Shri Gurudas Shridahar Kenkre, aged 47 years, and his wife, 2 6. Smt. Reshma Gurudas Kenkre, aged 38 years, all r/o H.No.168, Aquem-Alto, Margao, Goa. 7. Smt. Lata Uday Naik, aged 53 years, d/o late Shri Shridhar Kenkre, and her husband, 8. Shri Uday Vasudev Naik, son of late Vaudev Naik, aged 57 years and his wife, r/o Medha Apartments, behind Shehnai Hall, Shantinagar, Ponda-Goa. 9. Mr. Sundir Vassudev Naik, son of late Vasudev Naik, aged about 62 years,and his wife, 10. Smt. Mangal Sundir Naik, aged 58 years both r/at Sanjeeve Kasebkar, Kurtarkar Township, C-Bldg., Ambajinagar, Fartorda, Margao, Goa. ........ Respondents Shri Nitin Sardessai, Advocate for the Appellants. Shri J.J. Mulgaonkar, Advocate for Respondents nos.1 to 8. CORAM: F.M. REIS, J. DATE: 2ND JULY, 2010. ORAL ORDER: This appeal challenges the Order dated 22nd July, 2009 passed by the learned Civil Judge, Senior Division, Mapusa in 3 Special Civil Suit No.49/2008/B. By the impugned order the application for temporary injunction filed by the respondents came to be allowed and the appellants inter alia were restrained from interfering with the respondents' possession of the suit property and the suit house and/or to dispossess the respondents of the suit house or the suit property. The appellants were also restrained from selling or alienating the suit property in any manner or creating any third party rights in respect of the suit property or any portion thereof. 2. The Respondents filed a suit on the ground that there is an immovable property with a residential house surveyed under survey no.198/2 of Candolim village, which is known as “Pinto Wado” which originally belonged to Madeva Sinai Lotlicar and his wife Sorospoti. It is further their case that inventory proceedings for partitioning their estate were initiated upon their death and the suit property was listed as item no.4 and one-third part was allotted to their son Purushottam Sinai Lotlikar and his wife Bhagiratibai. It is their contention that in the survey records the suit property stands in the name of Pandurang, who is the grandson of said Purshottam and his wife. Pandurang was the son of Bhagwan and Rukmini. It is further their contention that by a public notice dated 4 15.3.2008 they came to know that the appellant no.2 had acquired rights to the suit property by virtue of a Deed of Sale dated 26.2.2008. The respondents were not parties to said deed of sale, though they had a right in the said property. 3. As the rights of the respondents came to be infringed, the respondents made necessary inquiries and learnt that a Deed of Succession was executed dated 21.2.2007, whereby the appellant no.1 was declared as the sole heir of the deceased Pandurang as well as her father -in-law Bhagwant Sinai Lotlikar and his wife. It is further their contention that the said deed of succession is a false document which has been executed by the appellant to defraud the rights of the respondents in the suit property. Consequently, the suit has been filed seeking a declaration that the sale deed dated 26/2/20098 in favour of the appellant no.2 and 3 as null and void ab initio as well as that the succession deed dated 21/2/2007 is also null and void. Thereafter, during the pendency of the suit, an application for temporary injunction was filed by the respondents, seeking the aforesaid relief. 4. The appellants herein filed their written statement and disputed the claim of the respondents. 5. It is their contention that the respondents are falsely 5 claiming that they are the children of sister of late Pandurang Lotlikar and were falsely claiming that respondent no.9 is the son of sister of later Pandurang. It is further their contention that upon the death of Pandurang Lotlikar, his widow, Mirabai, the appellant no.1 was his only legal heir as according to them the said Pandurang had no sisters. It is further their contention that the Respondents have no right to the suit property as it belonged to the Appellant no.1 and that the sale deed was legal. It is therefore contended that the suit and temporary injunction be dismissed. 6. By the impugned order date 22.7.2009, the learned Civil Judge after hearing the parties, granted the application for temporary injunction, as prayed for by the respondents. Being aggrieved by the said order the appellants have preferred the present appeal. 7. The learned Counsel Mr. Nitin Satrdesai appearing for the appellant has submitted that the learned Civil Judge has totally misdirected himself while passing the impugned order, as according to him, if the appellant no.1 was the co-owner of the suit property, the question of granting any injunction as against the said appellant did not arise at all. He further contented that the respondents who claims to be the co-owner of the suit property 6 cannot obtain an injunction against another co-owner as sought to be done by the impugned order. He further submitted that the appellant no.1 is the sole owner of the suit property and,as such, the sale deed executed in favour of the appellant no.2 is legal. He further submitted that the respondents are falsely claiming that they have a right to the suit property, when according to him in view of the fact that the husband of the appellant no.1 Shri Pandurang had no sisters, the inheritance devolves upon the appellant no.1 and consequently, he was entitled to execute the sale deed. He further submitted that the respondents have failed to make out a prima facie case and consequently the impugned order deserves to be quashed and aside. 8. On the other hand the learned counsel Mr. Mulgaonkar appearing for the respondents has joint issue with the contention of the appellant and submitted that the appellants are banking upon a false document to claim their rights to the suit property. He submitted that the respondents herein were descendants of the sisters of the deceased Pandurang and, as such, the rights in the suit property belonging said Pandurang as well as to his father Bhagwant devolves also upon the respondents herein. He further submitted that the documents produced by the appellants cannot 7 create any rights in the suit property in favour of the appellant no.1 as they are been obtained by fraud. As far as the submission that one co-owner cannot obtain an injunction against the other co- owner is concerned, the learned counsel submitted that the injunction putting a restrain on possession is concerned is only against appellant no.2 and no.3 and not against appellant no.1. He further contended that the remaining reliefs are against all the appellants . As such, he submitted that no interference is called for in the present appeal, and the same deserves to be rejected. 9. Having heard the learned counsel appearing for the parties, I find that the learned Judge has come to the conclusion that the respondents have made a prima facie case for grant of injunction. The learned Judge has relied upon the birth certificate, the marriage certificate of Pandurag Lotlikar, Jayshree and her husband, birth certificates of original plaintiffs nos.1,3,5 and 7, the marriage certificate of parents of said plaintiffs produced by the appellant which discloses prima facie that the said Pandurang had two sisters viz. Kesar alias Laximibai Vassudev Naik and Jayshree alias Premabai Shridhar. As such, the rights of the said sisters Kesar and Laximibai devolves upon the respondents herein. The inheritance of the deceased Bhagwan devolves upon his 8 descendants which prima facie includes the said two sisters as well as the husband of the appellant no.1 Pandurang. As the said Pandurang had no surviving descendants, his assets prima facie will devolve upon the respondents herein,being the descendants of the said two sisters apart from the appellant no.1 having moiety share. Consequently, the appellant no.1 cannot claim to be an universal heir of the said Panduranga and Bhagwan and claim exclusively ownership to the suit property. 11. Once it is established that the respondents have a right to the suit property, prima facie the sale deed executed by the appellant no.1 claiming exclusive rights to the suit property will have no legal effect. 12. The learned trial judge has after considering the evidence on record has correctly come to the conclusion that the respondents have a prima facie case and as such the injunction came to be granted. The Apex Court in the judgment reported in 1990 (Supp.) S.C.C. 727 in the case of Wander vs. Antox India P. Ltd., has held that while dealing with the point regarding the scope of the Appellate Court to interfere in the order passed by the trial Court in its discretion held that in such appeals, the Appellate Court will not interfere with the exercise of discretion of the Court 9 of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle and, therefore, the Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by that Court was reasonably possible on the material. In other words, the Appellate Court would not be justified in interfering with the order passed by the trial Court in exercise of its discretion, solely on the ground that if the former had construed the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicious manner, the fact that the Appellate Court would have taken a different view would not justify interference with the trial Court's exercise of discretion. In fact, the law on this point is well settled and reiterated by this Court as well as by the Apex Court time and again. It cannot be disputed that the discretionary exercise of power by the Court of first instance cannot be interfered with by the Appellate Court unless it is found that such exercise has been done arbitrarily or is 10 based on a finding which is contrary to the materials on record or on the basis of a finding which has been arrived at ignoring the material piece of evidence which if considered, the decision could be different than the one arrived at by the trial Court. Failure to consider the material piece of evidence would certainly amount to arbitrary exercise of jurisdiction of discretionary power in granting or refusing the interim relief. In the present case, I find that the learned trial Judge has exercised discretion whilst passing the impugned order in accordance with the well settled principles governing the grant of temporary injunction, and no interference is called for by this Court. 13. As far as the contention of the learned counsel appearing for the appellant that one co-owner cannot obtain an injunction against the other co-owner as far as possession is concerned, in view of the submission of the learned counsel for the respondent it is clarified that in the injunction granted by the trial court, to the effect that the appellants were restrained from interfering with the respondents possession of the suit property and the suit house and and/or to dispossess the respondents of the suit house or the suit property is restricted or against the appellants no.2 and 3 who are defendants nos.2 and 3 in the suit only. There is no 11 injunction against the appellant no.1 on that count. The remaining reliefs granted by the trial Judge are confirmed and no interference is called for. 14. In view of the above, subject to the clarification as stated herein above, the appeal stands dismissed with no orders as to costs. F.M. Reis, J. ap/-