1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition No.681 of 2010 Shri Damodar Mohan Gaonkar, s/o Shri Mohan Kashinath Gaonkar, aged 35 years, Indian National, service, r/o H.No.58, Deulwada, Lamgaon, Bicholim-Goa. (Represented in herein by his Constituted Attorney Shri Mohan Kashinath Gaonkar, S/o Kashinath Gaonkar, Resident of H. No.58, Deulwada, Lamgaon, Bicholim-Goa. Constituted vide General Power of Attorney dated 06/1/2009, executed before Notary Public Shri Narayan P. Sawant) …. Petitioner Versus 1. Shri Govind Baboso Popkar, s/o late Jayasri Babuso Popkar, aged about 56 years, r/o Ward No.X, H. No.267, Deulwada, Lamgaon, Bicholim-Goa. 2. Shri Prataprao Madhavrao Desai, Unmarried, aged about 65 years, Landlord, r/o H. No. not known, Deulwada, Lamgaon, Bicholim-Goa. …. Respondents. 2 Mr. A.D. Bhobe, Advocate for the petitioner. Mr. Sudin Usgaonkar, Advocate (under legal aid)for the respondents no.1. None for Respondent no.2 Coram: A. P. Lavande, J. Date: 3rd March, 2011. JUDGMENT: Heard Mr. Bhobe, learned counsel for the petitioner and Mr. Usgaonkar, learned Counsel appointed under Legal Aid Scheme for respondent no.1. None appears for respondent no.2, though served. 2. Rule. By consent, heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioner who is the original plaintiff in Regular Civil Suit No.48/2009/B pending before the Civil Judge, Junior Division, Bicholim challenges the order dated 30/8/2010 passed by the Ad-hoc District and Assistant Sessions Judge, Fast Track Court, 3 Mapusa in Miscellaneous Civil Appeal No.169/2010 allowing the appeal preferred against the order dated 29/04/2010 passed by the Civil Judge, Jr. Division, Bicholim, by which the trial Court had granted injunction against the respondents restraining them from interfering with the suit plot admeasuring 202 sq.metres. 4. The plaintiff filed the above suit against the defendants seeking declaration and temporary injunction on the ground that he had purchased a plot admeasuring 202 sq.meters from defendant no.2 by sale deed dated 2/8/2001. The said application was opposed by respondent no.1 who had also purchased an area of 875 sq.meters of the very same property from respondent no.2 by sale deed dated 21/11/2008. The trial Court upon appreciation of the material placed on record granted injunction. The Appellate Court by the impugned order has vacated the injunction on the ground that the lower Court has granted 4 blanket injunction and restrained defendant no.1 from interfering with the suit property. 5. Perusal of the record discloses that the petitioner herein had purchased a plot admeasuring 202 sq.metres from respondent no.2 by sale deed dated 2/8/2001 and subsequently the respondent no.1 had also purchased an area admeasuring 875 sq.metres from defendant no.2. It appears that the area of 875 sq.mts. included the area of 202 sq.mtrs which was already sold by sale deed dated 2/8/2001. The defendant no.1 has taken a defence that the plot purchased by him was a different property. 6. Since admittedly, the plot of 202 sq.mtrs was purchased by the plaintiff prior in point of time, irrespective of the fact whether the plot admeasuring 875 sq.mtrs included an area of 202 sq.mtrs, the plaintiff being 5 the owner in possession of the the area admeasuring 202 sq.meters is entitled to injunction against the defendants. The materials on record prima facie establish possession of the plaintiff in respect of the said plot. 7. This being the position, I am of the considered opinion that the lower Appellate Court was absolutely not justified in reversing the order of injunction passed by the Trial Court. It is well settled by a catena of decisions of the Apex Court that where an appeal against the order granting or refusing injunction the Appellate Court cannot substitute its own discretion in place of the discretion exercised by the lower Court. In my opinion, the lower Appellate Court has clearly misdirected itself. 8. The Lower Appellate Court ought not to have interfered with the trial Court's order granting injunction in favour of the appellant having regard to the materials 6 placed before it by both sides. 9. In view of the above, the impugned order dated 30/8/2010 is quashed and set aside and the order of the Trial Court granting injunction is confirmed. It is made clear that the injunction shall operate in respect of area of only 202 sq.mtrs purchased by the plaintiff by sale deed dated 2/8/2001. 10. Rule is made absolute in the aforesaid terms. 11. Fees of the legal aid counsel appointed are quantified as Rs.1500/-(Rupees one thousand five hundred only). A. P. Lavande, J. Ap/- 7