:1: IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 44 OF 2011 1. Mr. Gurudas Upendra Pai Raikar, aged 84 years and his wife, 2. Mrs. Sundarem Kamat alias Hirabai Gurudas Pai Raikar, aged 80 years, Both residents of Minaxi Bldg., Block No.1, Dr. Atmaram Borkar Road, Panaji Goa. ( Plaintiff no.2 is represented by plaintiff No.1 by duly constituted Power of Attorney ) 3. Mr. Purshottam alias Anand Dharma Kamat, aged about 80 years and his wife, 4. Mrs. Nirmala Purshottam Kamat, aged 70 years, Both residents of H.No.89E, C/o Ramchandra Bhaskar Bhandari, Novem, Kupem, Salcete Goa. (Plaintiff no.4 is represented by plaintiff no.3 by duly constituted Power of Attorney ) … Appellants V e r s u s 1. Mr. Vaicuntha Vinayak Kamat alias Vaicunta V. Kamat, aged 60 years and his wife, 2. Mrs. Sheela Vaicunta Kamat, aged 55 years, 3. Dr. Dattaram Vinayak Kamat, aged 57 years, 4. Mrs. Nayan Dattaram Kamat, aged 52 years, :2: All residents of St. Anthonywada, Guirim, Bardez Goa. 5. Mr. Sulaksh Santosh Priolkar, aged 23 years, resident of Una Molla, Behind Fatorda Petrol Pump, Fatorda, Margao Goa. … Respondents Mr. Sudin Usgaonkar with Ms. Prema Matkar, Advocates for the appellants. Ms. Tonia Lobo, Advocate for the respondents. CORAM : F. M. REIS, J DATE : 16 th NOVEMBER, 2011 . ORAL JUDGMENT Heard Shri Sudin Usgaonkar, learned Counsel appearing for the appellants and Ms. Tonia Lobo, learned Counsel appearing for the respondents. 2. Admit. Heard forthwith by consent of the learned counsels. 3. Ms. Tonia Lobo, learned Counsel waives service on behalf of respondents. The notice was issued for final disposal at the stage of admission. Hence, the appeal was taken up for final hearing. :3: 4. By the impugned order dated 06.04.2011, the learned Civil Judge Senior Division, Mapusa, dismissed the application for temporary injunction filed by the appellants. The appellants filed the suit on the ground that there exists a suit property bearing Land Registration No. 11695 and surveyed in the record of rights under No.89/6 admeasuring an area of 1950 square meters belonging to the common ancestors of the appellants and the respondents namely Purshottam Kamat and his wife Duarki Kamat. According to the appellants, the said common ancestors are grand parents of the appellants and the respondents. It is further their contention that upon the death of the said common ancestors, inventory proceedings were initiated in the Court of Civil Judge Senior Division, Mapusa, being Inventory proceedings No. 180/96 which came to be dropped on the ground of settlement. It is further their case that the respondent nos. 1 to 4 with malafide intention and in collusion with each other intended to grab the entire suit property after the said inventory proceedings No.180/96/A came to be disposed of. After the said inventory proceedings came to be withdrawn, the respondents fraudulently filed another proceedings bearing No. 197/2004/B without the knowledge of the appellants and enlisting the whole suit property. It is further :4: their case that the whole exercise of the respondents was to fraudulently get the allotment of the suit property in favour of respondent nos. 1 to 4. It is further their case that some renovation work was noticed to the house existing in the suit property and that there was apprehension that the said respondents may sell, lease or dispose of or alienate or create any third party right or third party interest in the suit property. It is further their case that being the co-owners of the suit property having major share therein, the respondents are not entitled to carry out such activities. 5. The respondent nos. 1 to 4 disputed the contention of the appellants by filing their written statement and stated inter-alia that they have finished whatever work which they had intended to carry out in the suit property and they have no intention to further carry out any work in the suit property. According to the said respondents, the boundaries given by the appellants to the suit property are different and the said respondents deny the contentions raised by the appellants in their plaint. It is further their case that the purchase made by late Purshottam Kamat by sale deed and discharge dated 16.01.1908 does not encompass the full extent of the area covered by the property surveyed under :5: No.89/6 and survey No.89/6 and as such it does not entirely belong to the said Purshottam Kamat. As such, it was the contention of the said respondents that the appellants are not entitled for any relief and consequently the suit and the temporary injunction application deserves to be rejected. 6. The learned Judge after hearing the parties has come to the conclusion that the appellants have failed to establish prima facie that they have any case in their favour to grant temporary injunction. The learned Judge further found that there was no irreparable loss and injury to the appellants and that the balance of convenience was not in favour of the appellants and accordingly rejected the application filed by the appellants. Whilst passing the impugned order, the learned Judge found that the description and survey number of the suit property was not accepted by the said respondents and further that there was no material disclosed to substantiate the allegations of the appellants of their apprehension. The learned Judge also took note of the fact that the respondents had already carried out repairs and consequently dismissed the application filed by the appellants. :6: 7. Shri Sudin Usgaonkar, learned Counsel appearing for the appellants has assailed the impugned order and pointed out that the suit filed by the appellants is to declare the allotment made in the inventory proceedings bearing No. 197/2004/B as null and void as according to the appellants the allotment made therein are by fraud. The learned Counsel has further pointed out that it is not disputed that in earlier proceedings initiated upon the death of the common ancestors, the appellants were made interested parties in the said proceedings and as such the question of initiating proceedings without the knowledge of the appellants itself discloses intention of the appellants in trying to deprive the appellants of their rights to the suit property. The learned Counsel further took me through the impugned order and pointed out that the learned Judge has not appreciated the evidence on record and has come to an erroneous conclusion that merely because the repairs have already been carried out, the appellants are not entitled for the relief as sought in the application namely restraining the respondents from creating any third party right and/or alienate the suit property during the pendency of the suit. The learned Counsel as such submitted that the impugned order deserves to be quashed and set aside. :7: 8. On the other hand, Ms. Tonia Lobo, learned Counsel appearing for the respondents has disputed the contentions raised by the learned Counsel appearing for the appellants. The learned Counsel has pointed out that the suit property as claimed by the respondents did not belong to the common ancestors late Purshottam Kamat and his wife as according to the learned Counsel only a part of the said survey number was part of inheritance to the said deceased. The learned Counsel further pointed out that the respondents have already carried out the repairs and are residing in the house existing in the suit property and as such the question of creating any third party right would not arise at all. The learned Counsel further took me through the impugned order and pointed out that the learned Judge has rightly considered the material on record and has come to the conclusion that the appellants have failed to establish any prima facie case in their favour. The learned counsel as such submitted that the appeal deserves to be rejected. 9. Having heard the learned Counsel and on perusal of records, there is no dispute that both the parties are claiming their rights in the suit property on the ground that such rights have devolved upon them through common :8: ancestors namely Purshottam Kamat and his wife Duarki. This aspect is not disputed in the pleadings of both the parties. Apart from that, in para 7 of the plaint, there is an averment made that the appellants were the co-owners/co- sharers of the suit property and entitled to inheritance of the said Purshottam and his wife. On perusal of the written statement filed by respondent nos. 1 to 4, at para 6, the contents of paras 7 and 8 have been admitted. Once there is no dispute that the appellants were co-sharers/co-owners of the suit property itself prima facie establishes that the appellants have a right and interest over the suit property. This establishes prima facie that the claim of the appellants that they are co-sharers/co-owners of the suit property has to be accepted. Apart from that, it is not disputed that in the inventory proceedings which was initiated in the year 2004, the appellants were not made parties therein nor had any knowledge about the said proceedings. Even though in the earlier proceedings, the appellants were admittedly the interested parties, the respondent who was cabeca de casal in the subsequent proceedings chose not to disclose that the suit propety did not exclusively belong to Vinayak. Considering the said aspect that prima facie the suit property does not belong exclusively to the respondents, it is not open to said :9: respondents to deal with the suit property as owners thereof. 10. The contention of the learned Counsel appearing for the respondents as to whether the whole property forms part of inheritance of the said Purshottam Kamat is a matter which would have to be decided at the trial of the suit nevertheless prima facie on the basis of the evidence on record, the appellants have established that they have an interest and/or right to the suit property. Apart from that, considering the conduct of respondent nos. 1 to 4 in initiating proceedings and including the whole suit property to be partitioned in the said proceedings itself discloses prima facie that the apprehension of the appellants that the respondents may alienate the suit property as well founded. The learned Judge was not justified to refuse the injunction to the appellants from restraining the respondents from creating any third party right and/or alienate the suit property during the pendency of the suit. The learned Judge has erroneously refused the injunction to the appellants whilst passing the impugned order and as such the impugned order cannot be sustained and deserves to be quashed and set aside. :10: 11. In view of the above, I pass the following order : O R D E R (i) The impugned order passed by the learned Judge dated 06.04.2011 is quashed and set aside. (ii) The respondent nos. 1 to 4 are restrained from alienating and/or creating any third party right over the suit property during the pendency of the suit. (iii) The appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J at*