1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO.34 OF 2010 M/s Hanuman Lawande & Associates, A Partnership Firm, duly registered under the Indian Partnership Act, 1932, with its office at Damodar Chambers, Isidorio Baptista Road, Margao-Goa, represented by its Partners:- 1. Mr. Hanuman Narayan Lawande, son of late Narayan Lawande, Major, married, resident of 'Jyoti', House No.1269, Gogol, Margao-Goa. 2. Mr. Vijay Narayan Lawande, son of late Narayan Lawande, Major, married, Resident of House No.679, Plot No.12A, Raviraj Colony, M.Z.O., Port, Dona-Paula, Ilhas, Goa. …. Appellants V/s 1. Mr. Datta Gajanan Gaundolcar, major, 2. Mrs. Alka Datta Gaundolcar, major, Both residents of Flat No.E/SR, 2nd floor, Vinayak Plaza, Vidyanagar, Gogol, Margao-Goa. 3. Mrs. Sumati Laxmidas Xetio, Major, 4. Dr. Laxmidas Venkatesh Xetio, Major, Both residents of House No.365, Jogadicha Hall, Sanquelim-Goa. 5. Mr. Satish Laxmidas Xetio, Major, 2 Resident of Indira Apartments, Comba, Margao-Goa. 6. Mrs. Sudhabai Motiram Gaudolcar, Major, 7. Kum. Gauri Motiram Gaundolcar, Major, 8. Kum. Madhavi Motiram Gaundolcar, Major, All residents of House No.E-88, Comba, Margao-Goa. 9. M/s. Kurtarcar Real Estates, 322-A, Kurtarkar Towers, Malbhat, Margao-Goa. …. Respondents Mr. S.D. Lotlikar, Senior Advocate with Mr. K.B. Surjuse, Advocate for the Appellant. Mr. A.F. Diniz, Advocate for Respondents Nos.3 & 4. Mr. P.S. Rao, Advocate for Respondent No.9. CORAM : N.A. BRITTO, J. DATE : 10th NOVEMBER, 2010 JUDGMENT : Admit. By consent, heard forthwith. This appeal is directed against order dated 13/08/2010 of the learned Civil Judge, Senior Division at Margao by which an application dated 26/03/2010 for temporary injunction filed by the appellants (plaintiffs, for short) has been dismissed. 2. The plaintiffs have filed the suit styling the same as a suit for specific performance and for permanent injunction but the main 3 relief sought by the plaintiffs is one of mandatory injunction to direct the defendants to execute in favour of the plaintiffs a sale deed conveying absolute ownership of plots nos.28 to 37 having an area of about 4919 square metres at the rate of `500/- per square metre against the balance payment of `17,00,500/- and in the alternative to recover from the defendants a sum of `98,38,000/- by way of damages with interest at the rate of 21% per annum from the date of filing of the suit. 3. The case of the plaintiffs appears to be that defendants nos.1 to 8 had entered into an oral agreement in July, 1991 with the plaintiffs to sell the said property which forms part of Chalta No.2 of PT sheet No.149 having a total area of about 66,835 square metres. The plaintiffs have claimed that they have made payments to the defendants which were accepted by defendant no.1 and other defendants in different instalments on behalf of the defendants in the sum of Rs.7,30,000/-. The plaintiffs have also claimed that they had also paid a sum of Rs.1,82,490/- at the request of the defendants to the SGPDA by way of development charges. The plaintiffs also claimed that subsequent to the said payments the defendants nos.1 to 8 were lured by defendant no.9 and had entered into an agreement with him dated 15/06/2000 to sell the 4 property. The plaintiffs had also prayed for permanent injunction to restrain the defendants from in any manner creating third party rights in the said plots of land or parting with the possession of the area covered by the said plots agreed to be sold to the plaintiffs. 4. The defendants contested the suit and defendants nos.1 to 6 and 7 had denied having ever approached the plaintiffs for the development of the suit property or having agreed to sell the suit property at the rate of `500/- per square metre to the plaintiffs. The said defendants had pleaded that it is the plaintiffs who had obtained their consent by misrepresenting the fact to each co-owner by stating that the other co-owners had agreed to sell the suit property to the plaintiffs and that the plaintiffs have played a fraud on them and had made payments with ulterior motives. The said defendants had stated that the plaintiffs were not entitled to any specific relief and at the most the plaintiffs could ask for refund of the amount which was fraudulently paid to the defendants. 5. Defendants nos.3 & 4 have taken a clear stand that they had never consented for any sale nor they had received any money from the plaintiffs. Defendant no.5 had also denied having consented for sale of the property at any time. 5 6. The plaintiffs had filed an application for temporary injunction which came to be disposed of by order dated 24/03/2004. By the said order defendants nos.1 to 5,6,7 & 8 were restrained from creating any third party rights in respect of the said plots as identified in the sub-division plan. It appears that at that stage the plaintiffs had conceded that there was no formal agreement between the parties and the plaintiffs had placed reliance on the receipts contending that the said receipts itself constituted an agreement. The learned trial Judge whilst disposing the application had observed that the evidence showed that except defendants nos.3 & 4 all other defendants were aware about the transaction they had with the plaintiffs and that the case of defendants nos.3 & 4 stood on a different footing. It appears that the said order dated 24/03/2004 was brought in appeal before this Court without any success. Since then the plaintiffs have completed their evidence in the suit and the suit is at the stage of defence evidence, when the plaintiffs filed the application dated 26/03/2010-Exhibit 91D which came to be disposed of by the impugned order. 7. The said application was filed, claiming that one of the 6 partners of the plaintiffs by name H.N. Lawande while passing along the public road abutting the suit property on 20/03/2010 noticed that construction activity was in progress in the area which appeared to be covered by the plots agreed to be sold to the plaintiffs and though construction activity was noticed in the suit property by plaintiffs on earlier occasions also, the said activity was clearly outside the area which was covered by the plots nos.28 to 37 with which they were not concerned. The plaintiffs claimed that the new construction activity which was noticed on 20/03/2010 appears to be in the area covered by the said plots agreed to be sold to the plaintiffs which made the plaintiffs to inquire with the SGPDA as well as the Margao Municipal Council, and which led to the discovery that a sale deed dated 16/09/2002 was registered in the office of the Sub-Registrar of Salcete at Margao by which defendants nos. 1 to 8 have sold a plot of land to defendant no.9 which totally overlaps the plots nos.28,29,30 of the plan and partly plot no.31 and pursuant to the aforementioned construction license that the construction activity had apparently being taken up by defendant no.9. The plaintiffs claimed that at the time of hearing of the oral arguments, the defendant no.9 as well as other defendants had suppressed from the Court that they had sold the property by sale deed dated 16/09/2002 which overlapped the said 7 plots 28,29,30 and 31. Plaintiffs stated that on the strength of the said purchase, the defendant no.9 applied for development permission from SGPDA for the construction of a multi storeyed building and a development permission dated 1/12/2009 was granted to defendant no.9. The plaintiffs claim that the learned Civil Judge was impressed by the statement made on behalf of defendant no.9, that defendant no.1 was not concerned with the plots agreed to be sold to the plaintiffs which was the subject matter of the dispute in the present case and therefore did not think it appropriate to pass any order of injunction against defendant no.9 restraining defendant no.9 from carrying out any development contrary to the approved sub-division plan. The plaintiffs claim that defendant no.9 played a fraud on the Court, by suppressing that the defendant no.9 had during the pendency of the suit, sold a plot admeasuring 4000 square metres and identified as plot no.4, which almost entirely overlaps plot nos.28, 29, 30 agreed to be sold and partly plot no.31. The plaintiffs claim that defendant no.9 had started construction activity. The plaintiffs, therefore, claiming that great harm and irreparable injury would be caused to the plaintiffs, filed the said application for temporary injunction to restrain defendant no.9 from in any manner carrying out any development in the plot purchased by him under sale deed dated 16/09/2002 or 8 in any portion of the said property corresponding to the said plot nos.28 to 37. 8. The case of defendants nos.1 to 6,7 & 8, inter alia, was that the plaintiffs were furnished with the copy of the sale deed dated 16/08/2002 on 20/03/2010 along with the affidavit in sur-rejoinder of defendant no.4, i.e. prior to passing of the injunction order on 20/03/2010 and, therefore, the plaintiffs had indulged in suppresio veri and suggestio falsi. The case of defendants nos.3 & 4 was that damages will be adequate relief for the plaintiffs as the plaintiffs in the alternative had sought a prayer claiming `98,38,000/- with interest at the rate of 21% per year, as the plaintiffs had failed to make out a prima facie case, the balance of convenience was not in their favour and there was no irreparable loss to be suffered by them. Defendant no.5 had reiterated his stand that he and the late Balkrishna had never agreed to sell any plots to the plaintiffs. The case of defendant no.9 was that in their capacity as owners in possession of plot no.4 sold by deed dated 16/09/2002 they had started the first phase of development in the year 2008 and were in the process of carrying development in the second phase with all permissions of the authorities. 9 9. The very foundation of filing the second application for injunction dated 26/03/2010 is that the plaintiffs through their partner Shri Hanumant Lawande while passing along the public road on 20/03/2010 had noticed the construction activity in progress and although the plaintiffs had on earlier occasions noticed construction activity in the suit property, that was outside the plots nos.28 to 37 with which the plaintiffs were unconcerned, whereupon the plaintiffs made inquiries with the SGPDA as well as MMC which led them to the discovery of the fact that there was a sale deed dated 16/09/2002 by which defendants nos.1 to 8 had sold a plot of land to defendant no.9 which overlapped plots nos.28, 29 and 30 of the plan, a story which, has been disbelieved by the learned trial Court and, in my view, rightly. The learned trial Court has concluded that the documents produced on behalf of defendant no.9, and discussed in the impugned order, were sufficient to show that the claim of the plaintiffs that the plaintiffs for the fist time noticed on 20/03/2010, the construction activity of the defendant no.9 overlapping the plots agreed to be sold to the plaintiffs was an incorrect claim and, therefore, there was no valid cause for the plaintiffs to file the said second application for temporary injunction, as the application claiming similar reliefs against defendant no.9 was disposed off by order dated 24/03/2004 10 and otherwise also the defendant no.9 was doing the development in the property purchased by it under sale deed dated 16/09/2002 after obtaining all requisite permissions from the statutory authorities and by investing huge amounts in the proposed project. 10. At the time of hearing of this appeal it has been represented to this Court, on behalf of defendant no.9, that construction of the building is in progress, the first slab having been cast and columns for the second slab are being got ready. It is also submitted that the ground floor is being constructed on stilts. 11. Shri Lotlikar, learned Senior Counsel appearing on behalf of the plaintiffs, submits that the agreement of the plaintiffs with the defendants was in writing, pointing out to the several receipts which have been executed by some of the defendants in the year 1996. Learned Senior Counsel then submits that the order dated 24/03/2004 on the first application for temporary injunction, came to be passed on account of a false representation made to the Court by defendant no.9 stating that defendant no.9 had purchased a part of the suit property and that they had no claim over the property which was the subject matter of the dispute and that the interests of defendant no.9 were affected only by one plot, as a road was shown 11 passing through one of the plots purchased by defendant no.9. Learned Senior Counsel submits that defendants nos.1 to 8 had prior agreement with the plaintiffs and the subsequent sale deed by them in favour of defendant no.9 would not come in the way of the plaintiffs' claim in the suit. Learned Senior Counsel submits that in case no injunction is granted irreversible damage will be caused to the plaintiffs as it will further create third party rights. Learned Senior Counsel submits that defendant no.9 having made a solemn representation before the Court, cannot now be allowed to frustrate the order dated 24/03/2004. Learned Senior Counsel submits that the sale deed dated 16/09/2002 does not hurt the plaintiffs but what will hurt the plaintiffs is in case the status quo is allowed to be changed. Learned Senior Counsel submits that no sooner the plaintiffs saw the construction that the plaintiffs rushed to the Court and filed the application and they could not have done anything more. 12. In my view, after considering the case of the plaintiffs at this stage and submissions made in support of the same, there is no scope to interfere with the impugned order which is well merited in the light of the settled position in law as stated by the Apex Court in the case of Wander Ltd. and Anr. V/s. Antox India P. Ltd. (1990 12 (Supp) SCC 727) that: “The appellate Court will not interfere with the exercise on discretion of the court 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. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered 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 judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion.” 13. The plaintiffs were well aware of the development and sale agreement dated 15/06/2000 between defendant no.9 and defendants nos.1 to 8 prior to the filing of the suit on 21/08/2001, and yet the plaintiffs sought no temporary relief to restrain the defendants from executing the sale of an area equal to 30% of the developed land under the said agreement. The defendant no.9 in his written statement filed on 3/10/2001, i.e. much before the decision of the Court on 24/03/2004 in the first application for temporary injunction, had stated that defendant no.9 had got a new plan approved (Exhibit D9/B) on behalf of defendants nos.1 to 8 which diferred from the development plan of July, 1991 (produced as Exhibit A to the plaint) on the basis of which the plaintiffs had 13 agreed to purchase the said ten plots. Defendant no.9 had stated that the 8 metres wide road which was proposed in the plan Exhibit D9/A passing through the purported plots nos. 35 and 36 in the plan produced by the plaintiffs as Exhibit A (of July, 1991) was already made and tarred in loco. Even the 10 metres wide road found parallel to the aid 8 metres wide road was also made and was tarred and both the roads were under use. The southern portion of all the purported plots nos. 28 to 37 as claimed by the plaintiffs, fell within the road widening areas of the road lying on the south wherein no development is allowed under the existing law. The 30 metres wide road on the south was not what is proposed by the defendants, but it is the width of that existing road which is proposed in the ODP of the SGPDA according to which the sub- division plans are required to be prepared and filed before that authority for obtaining approval. 14. The plaintiffs themselves in para 31 of the plaint had stated that the new plan of sub-division which the defendants got approved from the planning authority contemplated a road of 20 metres width as against the road of 15 metres along the southern boundary of said property. The plaintiffs had pleaded that the road as proposed under the new sub-division cuts into the plots which 14 were agreed to be sold to the plaintiffs, etc. In other words, it can only be presumed that the plaintiffs knew very well at the time of filing of the suit that plan of July, 1991 which according to the plaintiffs had validity upto November 1995 was changed by the defendants and not only that development was carried on by defendant no.9 by constructing the roads and in such a situation Shri Diniz would be right in contending that most of the prayers of the plaint have now been rendered infructuous. That apart, the plaintiffs got a copy of the sale deed dated 16/09/2002 along with the plan annexed on 20/03/2004 and it is very difficult to believe that the plaintiffs argued their application for temporary injunction without taking note of the said sale deed which was furnished to the plaintiffs on 20/03/2004. It is not that for the first time that an incorrect statement was made by defendant no.9 before the learned trial Court at the time of the first order of temporary injunction dated 24/03/2004 was passed and in case any wrong statement was made it was the duty of the plaintiffs to have corrected the said statement by pointing out to the Court that the defendants nos. 1 to 8 had already sold to defendant no.9 that very property which according to the plaintiffs was agreed to be sold to the plaintiffs. It is too much now to accept, after defendant no.9 brought to the notice of the plaintiffs through the written statement filed by them 15 that they had carried out development as per new development plan (Exhibit D8/A) that they did not know about the development which covered the plots agreed to be sold. It was certainly expected of the plaintiffs to have inspected the plots and found out whether any roads were constructed by defendant no.9 into the portion which according to the plaintiffs was agreed to be sold to them. In the aforesaid background plaintiffs' claim that one of the partners of the plaintiffs saw the development for the first time while passing by the road on 20/03/2010 to give them a cause of action to file another application for temporary injunction could not have been believed, however credulous a person might have been. The plaintiffs are presumed to be aware of the development carried out by defendant no.9 which was contrary to the plan earlier approved and not only that, also of sale by defendants nos.1 to 8 in favour of defendant no.9. 15. The plaintiffs' case as can be seen from para 7 of the plaint is that there was an oral agreement in the last week of June, 1991 between the plaintiffs and those of the defendants mentioned in para 2(4) of the plaint; but the plaintiffs have cunningly not sought for specific performance of the said agreement as can been seen from the prayer clauses of the plaint, as such a relief would be 16 clearly time barred; but the plaintiffs have only sought amongst other reliefs, for a decree directing the defendants to execute in favour of the plaintiffs a sale deed conveying absolute ownership of the said 10 plots. The plaintiffs have now pitched their case, as otherwise can be seen from the first order of injunction, on the said receipts by which a sum of `7,59,000/- out of `24,59,500/- was paid to some of the defendants. Defendants nos.3 and 4 have taken a categorical stand that they had not agreed to sell the property to the plaintiffs at any time, and on this aspect of the case, that any agreement between the plaintiffs and some of the defendants to the exclusion of others would be void and therefore unenforceable, learned Counsel S/Shri Sonak and Diniz, on behalf of the defendants nos.9, and 3 & 4 respectively, have relied upon article 2177 of the Civil Code of 1867 which provides that: A co-owner cannot, however, dispose specifically any part of the common property without the same having been allotted to him in the partition. Shri Diniz has also made reference to article 2016 of the same Code which provides that: Each of the co-heirs may demand the totality of the estate, to which he along with others is entitled, without the person demanded against being able to raise objection that the estate does not entirely belong to him. There is no serious dispute, as already stated, that defendants 17 nos.3 & 4 have an undivided share, however small it may be in the property allegedly agreed to be sold to the plaintiffs. 16. This Court in the case of Mr. Robert Felicio Coutinho & Anr. V/s. Mrs. Maria Angelica Botelho D'Souza (since deceased) through LR's (2002 (1) GLT 109) has followed the judgment of this Court in the case of Jose Miranda V/s. Joao Miranda (1999 (1) GLT 77) wherein it was held by this Court that: “Article 2177 of the said Code provides that a co- owner cannot dispose of specifically any portion of the common property without the same being assigned or allotted in partition to him. Thus, it prohibits the alienation of a property in the form of a gift by any person unless the said property exclusively belongs to the donor. In other words, a gift can be of a property or any other share in a property which belongs to the donor. In case of a property which is owned by a person along with some other person or persons, it would be a case of co-ownership of the property and in such a case, considering the provisions contained in article 2177 of the Portuguese Civil Code, the co-owner would not be entitled to dispose of either the entire property or any specific portion of such a property unless and until the share of such a co-owner in the property is allotted, partitioned and separated in loco.” 17. This Court has further held that the gift in contravention of article 2177 of the said Code is ex facie bad in law, null and void. Therefore, what follows from the above position in law is that if at all there was an agreement between the plaintiffs on one hand, and 18 some of the defendants from 1 to 8, except defendants nos.3 & 4 or 5, any agreement as evidenced by acceptance of money by some of the defendants would be void and unenforceable. Defendants nos.3 & 4 would also be entitled to enforce their right of pre-emption as contended on their behalf. The plaintiffs having realized this situation have also sought for damages in the sum of `98,38,000/- which as rightly observed by the learned trial Court, while answering point no.2, would show that there is no question of any irreparable injury being caused to the plaintiffs. The learned trial Court has also