1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO.4 OF 2011 MR. RAYMOND APOCIANO ROSARIO AND ANR., THROUGH P.O.A. …. Appellants V/S MRS. EUSEBIA ESPERANCE RODRIGUES AND 8 ANR. …. Respondents Mr. S.D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the Appellants. Mr. A.D. Bhobe, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 12th SEPTEMBER, 2011 ORDER: The above appeal challenges the order dated 31/07/2009 passed in CMA No.110/2004 in Special Civil Suit No.23/2004 by the learned Civil Judge, Senior Division, Mapusa whereby the application for temporary injunction filed by the appellants came to be dismissed. 2. It is the case of the appellants, in short, that the suit property is the property surveyed under no.198/5 of Calangute village belonging to Mr. Aleixo Rodrigues and his wife Mrs. Maria 2 Joaquina Miranda, who have now expired. It is further their case that there is a residential house in the suit property which was constructed by Mr. Apociano Vicente Rodrigues at his own expenses and who was a bachelor. The appellants are claiming to be one of the heirs of the said Mr. Aleixo Rodrigues and his wife Mrs. Maria Joaquina Miranda and, consequently, claiming the share in the suit property. The appellants do not dispute that the respondents nos.1 to 8 are also co-heirs and are entitled to the estate of the said Shri Aleixo and Mrs. Maria and according to the appellants the suit property which consists of the said residential house has not been partitioned and, as such, they have right and interest therein. It is further their case that the appellants had kept a care taker in the suit house in view of the fact that they were abroad and during their absence respondents nos.1 to 8 have forcibly taken possession of the suit house and executed a Sale Deed in favour of respondent no.9 without their consent and as such the said Sale Deed is null and void. Accordingly, the appellants have filed the suit claiming for eviction of the respondents nos.1 to 9 and for other consequential reliefs. During the pendency of the said suit the appellants filed the application for temporary injunction. 3 3. The respondents resisted the suit filed by the appellants and disputed the claim of the appellants to the suit property. It is further their case that the respondents nos.1 to 8 were in possession of the suit property and that in exercise of their proprietary right the suit property came to be conveyed in favour of respondent no.9. Apart from that in the written statement and reply filed by the respondents, it is further their contention that after the execution of the Sale Deed in favour of respondent no.9, the said respondents had by a concluded contract transferred the possession of the suit house in favour of some third party. The respondents disputing the claim put forward by the appellants submitted that the application for temporary injunction deserves to be rejected. 4. The learned Judge by the impugned order dated 31.07.2009 after hearing the parties and on perusal of the evidence on record came to the conclusion that the appellants have failed to establish any prima facie right in the suit property and as such dismissed the application for temporary injunction. Being aggrieved by the said order the appellants have preferred the present appeal. 4 5. After hearing Shri S.D. Lotlikar, the learned Senior Counsel appearing for the appellants and Shri A.D. Bhobe, the learned Counsel appearing for the respondents without going into the correctness or otherwise of the rival contentions raised by the parties, I find that prima facie, there is no dispute that the suit property originally belonged to said Mr. Aleixo Rodrigues and his wife Mrs. Maria Joaquina Miranda. The fact as to whether the rights in the suit property have devolved in favour of the appellants or that such right has extinguished is a matter which has to be considered after recording of evidence. Nevertheless, considering that there is nothing on record to establish prima facie how the title of the appellants has extinguished, I find that in the interest of justice, it would be appropriate that without going into the correctness or otherwise of the rival contentions that the suit filed by the appellants can be ordered to be expedited so as to reach its logical conclusion, but however, during the pendency of the suit, considering the facts and circumstances of the case, the respondents have to be put on terms so that at the time of the final disposal of the suit an equitable order can be passed by the learned Judge while finally disposing of the suit. 5 6. In such circumstances when asked as to what would be a reasonable amount which could be deposited during the pendency of the suit, Shri S.D. Lotlikar, the learned Senior Counsel pointed out that according to him the monthly income derived from the suit house would be more than Rs.1 lac, but however, Shri Bhobe the learned Counsel appearing for the respondents pointed out that such claim has no basis as according to him the appellants themselves have claimed mesne profit/compensation at the rate of Rs.10,000/- per month during the pendency of the suit. 7. As such for reasons stated above and without prejudice to the rights and contentions of both the parties, it would be appropriate that the respondents nos. 1 to 9 be directed to deposit before the learned Trial Judge a sum of Rs.10,000/- from 1/01/2010 within six weeks from today. The remaining amount shall be deposited every three months thereafter before the learned Judge. The amount so deposited shall be invested by the learned Judge in Fixed Deposit which shall be renewed from time to time until the disposal of the suit. The amount deposited shall be subject to any orders passed by the learned Judge while disposing the suit filed by the appellants being Special Civil Suit No.23/2004. 6 The said suit is expedited and shall be disposed of as expeditiously as possible and preferably on or before 31/12/2012. It is further directed that any changes or structures otherwise erected by the respondents henceforth and during the pendency of the above suit shall be subject to the result in the suit and at the own risk of the respondents and the respondents shall not claim any equities in that respect. 8. The appeal stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-