-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 311 OF 2011 1. Shri Umesh Shivram Madkaikar, 54 years old, married, 2. Smt. Subangi Umesh Madkaikar, 51 years, married, 3. Smt. Sujata Dinesh Madkaikar, 45 years old, married All residents of House No.116, Opp. J. B. Stores, Mala, Fontainhas, Panaji, Goa, …... Petitioners V e r s u s 1. Shri Prakash Bhicu Nagvekar, major, married,resident of House No.405/17, P.D.A. Colony, Porvorim, Goa. 2. Shri Gurudas Mahadev Madkaikar, major, married, resident of Kamakshi Prasad Building, 3rd floor, Flat No.303, Near Tourist Home, Patto, Panaji. 3. Shri Suresh Mahadev Madkaikar, major, married, resident of House No.140, Opposite J. B. Stores, Mala, Panaji. …... Respondents Mr. S. D. Lotlikar, Senior Advocate with Ms. Sudha Pai Kir, Advocate for the Petitioner. Mr. S. Mahambrey, Advocate for the Respondents. Coram :- F. M. REIS, J Date : 8 th December, 2011. WP-311-11 -2- ORAL JUDGMENT Heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the Petitioner and Shri Mahambrey, learned Counsel appearing for the Respondents. 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the Respondents waive service. 3. The above Petition challenges the Order passed by the Courts below whereby an application for temporary injunction filed by the Respondents to restrain the Petitioners, their agents, servants, family members or any other person, persons or claiming through or under them from in any manner have any construction in the suit property or any other activity like levelling or changing the nature of the suit property. 4. Shri Lotlikar, learned Senior Counsel, appearing for the Petitioners has assailed the impugned Order passed by the Courts below and pointed out that the Respondents have suppressed the Judgment passed in the earlier proceedings wherein the Petitioners as well as Respondents were parties in which some persons claiming to be co-owners of the suit property had filed a suit for partition. Learned Senior Counsel further pointed out that the whole claim of the Respondents is on the basis of a Deed of Transaction executed way back in the year 1897, which has been dealt with by the learned Judge in the earlier proceedings in Regular Civil Appeal No. 76/2006, wherein the learned Judge has WP-311-11 -3- come to the conclusion that the said Deed of Transaction does not in any way create any title in favour of any person therefrom. Learned Senior Counsel further pointed out that the Petitioners are in possession and in occupation of the residential house located in the suit property and, as such, the injunction granted by the Courts below would cause irreparable prejudice to the Petitioners as it would prevent the Petitioners even to make some internal modification for its proper habitation. Learned Senior Counsel further pointed out that the learned Judge has erroneously come to the conclusion that the Respondents are also in possession of the suit property when the plaint itself discloses that the Respondents are not residing in the residential house located in the suit property. Learned Senior Counsel has taken me through the cause title of the plaint and pointed out that the registered addresses disclosed that the Respondents are not in the house situated in the suit property. Learned Senior Counsel after taking me through the Judgments of the Courts below has pointed out that the learned Trial Judge has come to the conclusion that the Respondents are not the co-owners of the suit property. Learned Senior Counsel also pointed out that the First Appellate Court has come to the conclusion that the Respondents have failed to prima facie establish their claim of co-ownership nevertheless, the learned Judge has gone to dismiss the appeal filed by the Petitioners and granted temporary injunction. Learned Senior Counsel further pointed out that the Courts below have acted with material irregularity affecting the jurisdiction of the Courts in granting temporary injunction and it is a fit case for interference by this Court under Article 226 of the Constitution of India. WP-311-11 -4- 5. On the other hand, the learned Counsel appearing for the Respondents has supported the Judgments passed by the Courts below. Learned Counsel pointed out that there are sufficient pleadings in the plaint to the effect that the Respondents are the co-owners in possession of the suit property. The learned Counsel further pointed out that the earlier Judgment relied upon by the Petitioners has been assailed by the parties therein before this Court and the matter is still pending. Learned Counsel further pointed out that in view of the largeness of the families of the Petitioners and the Respondents, it is not possible for all the Respondents to reside in the residential house and, as such, merely because the Respondents are not actually residing in the residential house by itself does not disentitle the Respondents from seeking an injunction as claimed for to protect their right of co-ownership. Learned Counsel further took me through the Judgments passed by the Courts below and pointed out that the Courts have rightly appreciated the evidence on record and come to the conclusion that the Respondents are the co-possessors of the suit property and, as such, granted the injunction as prayed for by the Respondents. Learned Counsel further pointed out that considering the discretion exercised by the Courts below in granting the injunction, the question of any interference of this Court under Article 226 of the Constitution of India does not arise at all. 6. Having heard the learned Counsel and on perusal of the record and also on going through the cause title of the plaint filed by the Respondents it prima facie, establishes that the Respondents are not in occupation of the residential house located in the suit property. Apart from that, Shri Lotlikar, learned Senior WP-311-11 -5- Counsel, is justified to contend that the Respondents have suppressed the earlier Judgment passed by the Lower Appellate Court in a suit filed by some parties claiming to be co-owners against the Petitioners as well as Respondents. On perusal of the said Judgment dated 05.05.2009, I find that the learned Judge whilst appreciating the evidence on record has come to the conclusion that the said property is an encroachment in the Government land and that merely on the basis of the said Deed of Transaction, no title can devolve on any of the descendants of the persons referred to therein arises. Be that as it may, the matter on rival claims would have to be established on the basis of the material adduced on record after leading evidence by both the parties. But, however, at this interim stage, considering that the Respondents are not actually residing in the suit house existing in the suit property, I find that the Courts below have acted in excess of jurisdiction whilst passing the impugned Order by granting the relief as prayed for by the Respondents. Taking note of the fact that the Petitioners are actually residing in the residential house located in the suit property, I find that the question of granting any injunction restraining them from levelling the land as granted by the Courts below does not arise at all. But, however, taking the overall facts and circumstances of the case, I find that in the interest of justice, the injunction granted can be restricted to the effect that the Petitioners are restrained from changing the nature of the suit house and/or putting up any new construction by way of extension of the existing residential house located in the suit property. In case the Petitioners desire to make any modification or repairs to the suit house during the pendency of the suit, liberty is to be given to the Petitioners to file an application before the learned Trial Judge to that effect and the learned Trial Judge shall decide the application in WP-311-11 -6- accordance with law. Any modification and/or improvement carried out in the suit house, shall be subject to the result of the suit and the Petitioners shall not claim any equities with that regard at the time of the final disposal of the suit. 7. In view of the above, I pass the following : ORDER (i) The impugned Order passed by the Courts below are modified and the Petitioners are restrained from carrying out any new construction by way of extension to the existing residential house or changing the nature of the suit property, pending the hearing and final disposal of the suit. (ii) The Petitioners are given liberty to file an appropriate application before the learned Trial Court in case any repairs and/or internal modification to the existing residential house are required to be carried out and such application shall be decided by the learned Trial Judge, in accordance with law. (iii) Any improvement carried out by the Petitioners in accordance with the aforesaid liberty, shall be subject to the result of the suit and the Petitioners shall not claim any equities, with that regard. (iv)Rule is disposed of accordingly. (v) Petition is disposed of with no orders as to costs. F .M. REIS, J. arp/* WP-311-11