-1- IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 63 OF 2009 Mrs. Margaret Albuquerque, C/o. Mr. Joseph Albuquerque, Hendre Building, 2nd floor, 'C' Block, 10 – St. Francis Xavier Street, J. S. S. Road, Mumbai 400 002. …... Appellant V e r s u s 1. Mrs. Joaquina Ana Olympia Castelino Albuquerque (since deceased through Lrs) Residing at Kashinath Bldg., 1st floor, Bapuras Marg, Jacob circle, Mumbai 400 011. 2. Mrs. Matilda alias Malati Gaikward Old Air India Colony, Kalina, Mumbai 400 029. 3. Natu Eknath Gaikward (since deceased through Lrs) Old Air India colony, Kalina, Mumbai 400 029. 3(a) Mr. Neil Eknath Maruti Gaikwad, residing at Old Air India Colony, Kalina, Mumbai 400 029. 3(b) Mr. Myron Eknath Maruti Gaikwad, Residing at Old Air India Colony, Kalina, Mumbai 400 029. (Since deceased through legal representative Respondent no.2). 3(c) Mr. Raju Eknath Maruti Gaikwad, Residing at Old Air India Colony, Kalina, Mumbai 400 029. -2- 4. Mrs. Melba alias Renuka Pevekar, Residing at Kashinath Bldg., 1st floor, Bapuras Mag, Jacob circle, Mumbai 400 011. 5. Mr. Ramesh Pevekar, residing at Kashinath Bldg., 1st floor, Bapuras Marg, Jacob Circle, Mumbai 400 011. …... Respondents Mr. J. E. Coelho Pereira, Senior Advocate with Mr. G. N. Agni, Advocate for the Appellant. Ms. A. Fernandes, Advocate for the Respondents. CORAM: F. M. REIS, J. DATE : 23 rd July, 2010. ORAL JUDGMENT The Appeal challenges the Order dated 31.07.2009, passed by the learned Civil Judge, Senior Division at Mapusa, in Special Civil Suit no. 69/2006/C, whereby an application for temporary injunction filed by the Appellant came to be dismissed. 2. The suit has been filed by the Appellant claiming inter alia that her father was the owner and had a right to the property known as “Soronto”, admeasuring 10,025 square metres surveyed under no. 209/6, described in the Land Revenue Office under no.2878, which property includes an old residential house bearing no. 648/1 situated at Anjuna. It is further the contention of the Appellant that her grandmother Anna Cristalina E. D. Albuquerque by a Registered Public Will, bequeathed to her father Mr. Irineu -3- Vincente Escolastico Albuquerque, one half of all the assets, rights and shares of her free and disposable quota/share which she was entitled. It is further her contention that the revenue records stand in the name of the father of the Appellant. It is further her case that her mother, the original Defendant no.1, had executed an Agreement of Licence dated 27.11.1998, which she learnt only in the year 2002, with one Mr. Ronley Erez, to carry on some business activity therein. Upon inquiries, she learnt from the said third party that they were occupying a portion of the house existing in the said property since November, 1998 on the basis of the Agreement of Licence which was renewed on 23.03.2002. A letter was addressed to the third party to the effect that the Appellant was also co-owner of the suit property and that his possession was illegal in the eyes of law. Claiming that the Appellant is entitled in law to a share in the suit property, the Appellant has filed the suit, inter alia, to restrain the Respondents from creating any third party right by way of sale, gift, transfer, lease, licence, mortgage, etc., in respect of the suit property without the consent of the Appellant. A mandatory injunction was also sought restraining the Respondents from prohibiting the entry of the Appellant, her servants and agents from enjoying the suit property. The Appellant has also prayed for other reliefs as mentioned in the plaint. 3. The suit was resisted by the Respondents on the ground that the same has been filed without any cause of action and that the Appellant had approached the Court with unclean hands and further that the suit is barred by limitation. The Respondents have also disputed the existence of the suit -4- house within the suit property and further contended that the suit property surveyed under no. 209/6 of Anjuna, does not comprise of the suit house bearing house no. 648/1. The Respondents, however, admitted that the Survey Records indicate the name of the deceased father Vincent Alburquerque as a sole occupant thereof. It is further their contention that the Appellant never enjoyed any right within the suit property nor in respect of the suit property from any point of time for more than thirty years and, consequently, had lost all her rights over the suit property. It is further their contention that the income derived by the deceased mother, original Defendant no.1, was for her own maintenance and livelihood. The Respondents also contend that they never intended to sell or alienate or create any third party rights in respect of the suit property. For other reasons as stated in the written statement, the Respondents contend that the suit deserves to be dismissed.. 4. An application for temporary injunction filed by the Appellant came to be dismissed by the impugned Order dated 31.07.2009. The learned Trial Judge whilst considering the application for temporary injunction, came to the conclusion that it is an admitted position that the Appellant was one of the owners of the suit property being the daughter of late Vincente Albuquerque and the deceased Defendant no.1 Mrs. Joaquina Albuquerque. The learned Judge further held that the Respondents also have right to the suit property and the suit house. The learned Judge further held that on the perusal of the plaint, the allegations made by the Appellant were against the deceased- -5- Defendant no. 1 and there were no allegations with regard to any acts alleged to have been committed by the remaining Defendants/Respondents herein. The learned Judge further held that the Appellant had slept over her rights, right from the year 1998 to 2002 and approached the Court only in the year 2006, which itself discloses that she is not entitled for any equitable relief as prayed for in the suit. The learned Judge further held that the allegations are vague and that the Appellant had not averred anywhere about raising any grievance right from November, 1998 up to March, 2002, until the filing of the suit in the year 2006. The learned Judge further held that as the Appellant had failed to establish that the Respondents created any third party right in the suit property, she was not entitled for any temporary injunction as prayed. For other reasons stated in the impugned Order, the application came to be dismissed. 5. The learned Senior Counsel appearing for the Appellant has assailed the impugned Order and submitted that it is admitted that the Appellant has a right to the suit property and as such the learned Judge was not justified in refusing the application for temporary injunction especially with regard to the prayer not to create third party rights. He further submitted that as the learned Judge came to the prima facie conclusion that the Appellant was one of the co-owners of the suit property and the suit house, the Respondents, who are other co-owners, could not prevent the Appellant from enjoying every inch of the suit property. He further contended that the learned Judge has totally misdirected in applying the well settled principles of law in -6- granting temporary injunction. 6. On the other hand, the learned Counsel appearing for the Respondents, has supported the impugned Order and submitted that the Appellant had never occupied any portion of the suit property or the suit house since the time of the death of her father and, as such, the question of permitting her occupation of the house at this stage, would result in an irretrievable damage to the rights of the Respondents. The learned Counsel further submitted without prejudice to the rights and contentions of the Respondents that the Respondents are not intending to create any third party rights or encumber the suit property during the pendency of the above Suit, and that the Appellant may apply to the learned Trial Judge in case she desires to visit the suit house, for necessary permission. 7. Having heard the learned Counsel and on perusal of the impugned Order and the records, I find that the learned Judge was justified in refusing the application for temporary injunction on the ground that the Appellant had approached the Court belatedly. The learned Judge further came to a prima facie conclusion that the allegation of the Appellant to the effect that the Respondents may create third party rights, were not well founded. The learned Judge has exercised the discretion in refusing the temporary injunction in an appropriate and judicial manner and, as such, no interference is call for in the impugned Order. However, considering the statement of the learned Counsel for the Respondents that no third party -7- rights or encumbrance will be created by the Respondents, which statement is accepted. I find that the apprehension of the Appellant to that effect would not survive. 8. Considering the matter in dispute, interest of justice would be met in case the learned Trial Judge is directed to dispose of the suit as expeditiously as possible considering the nature of the dispute between the parties herein. 9. In view of the above, I pass the following : ORDER (i) The learned Civil Judge, Senior Division, Mapusa, is directed to dispose of Special Civil Suit no. 69/2006/C as expeditiously as possible in, any event, on or before 31.12.2011 without being influenced with the findings passed in the impugned Order. (ii) In case the Appellant desires to visit the suit house during the pendency of the suit, such request may be considered by the learned Trial Judge after hearing the Respondents herein in accordance with law. (iii) The above Appeal stands disposed of accordingly with no orders as to costs. F. M. REIS, J. arp/*