-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 52 OF 2009 1. Smt. Joana Francisca Bernadeta Eric Gomes Baretto e Mascarenhas, Aged 73 years, landlady, widow of late Estelberto Sam Matias Serafino Mascarenhas. 2. Shri Trindade Carmo Mascarenhas also known as Carmo Mascarenhas, aged 52 years, married, service, son of late Estelberto Sam Mathias Serafino Mascarenhas, r/o. H. No. 50, Zogo, Carelossim, Mobor, Salcete, Goa and his wife. 3. Smt. Corina Natividade D' Silva Mascarenhas, aged 46 years, married, housewife, wife of said Trindade Carmo Mascarenhas. 4. Shri Martinho Sertorio Mascarenhas, Aged 47 years, married, service, son of late Estelberto Sam Matias Serafino Mascarenhas and his wife, 5. Smt. Maria Aurora Velga Mascarenhas, aged 46 years, married, housewife, wife of said Martinho Sertorio Mascarenhas, All nos. 1, 3 to 5 are r/o. H. No.343, Opp. St. Sebastian Church, Near Railway Station, Aquem Alto, Margao, Goa. Nos. 1, 3, 4 and 5 are duly represented by their duly constituted Power of Attorney Shri Trinidade Carmo Mascarenhas. …... Appellants V e r s u s 1. The Captain of Ports, through Shri A. P. Mascarenhas River Navigation Department, Near Custom House, Panaji, Goa. FA-52-09 -2- 2. The Member Secretary, through its Member Secretary Management Authority, Goa Coastal Zone, Saligao, Bardez, Goa. 3. The Collector, South Goa District Collectorate Building, 1st Floor, Margao, Goa. 4. The State of Goa, through its Chief Secretary, Secretariat, Porvorim, Goa. …... Respondents Mr. Valmiki Menezes, Advocate for the Appellants. Mr. G. Shirodkar, Government Advocate for the Respondents. Coram :- F. M. REIS, J Date : 9 th December, 2011. ORAL JUDGMENT Heard Shri Valmiki Menezes, learned Counsel appearing for the Appellants and Shri Guru Shirodkar, Government Advocate appearing for the Respondents. 2. The above Appeal challenges the Judgment and Decree dated 29.11.2008 passed in Civil Suit no. 63/2005, whereby the suit filed by the Appellants for permanent injunction and damages came to be dismissed. 3. Shri Valmiki Menezes, learned Counsel appearing for the Appellants FA-52-09 -3- has assailed the impugned Order essentially on the ground that the learned Judge has passed the impugned Order without scrutinizing the documents of title produced by the Appellants which establish that the Appellants are the owners in possession of the suit property. Learned Counsel further pointed out that the damages have been claimed by the Appellants on the ground that the Appellants are the owners in possession of the suit property and that the Respondents have illegally trespassed into the property and caused damages. Learned Counsel further pointed out that the learned Trial Judge has erroneously come to the conclusion that merely because another suit for declaration of title was filed such reliefs claimed in the present suit ought to have been included in the said earlier suit by way of amendment and, as such, the suit itself was barred under Order 2 Rule 2 C.P.C. Learned Counsel further pointed out that the learned Judge has not at all adverted itself to documentary evidence adduced by the Appellants to come to the conclusion that the Appellants were not entitled to the reliefs sought in the said suit. 4. On the other hand, learned Government Advocate, has supported the impugned Judgment. Learned Counsel further pointed out that the suit property belongs to the Respondents and the Appellants have no right therein. Learned Government Advocate has disputed the contention of the Appellants to the effect that the Respondents caused any damages. Learned Government Advocate took me through the impugned Judgment and pointed out that the learned Judge has rightly come to the conclusion that the Appellants are not entitled for any reliefs. FA-52-09 -4- 5. Having heard the learned Counsel and on the basis of the contention of the learned Counsel and on the basis of the evidence on record, the following points for determination arises in the present Appeal : POINTS FOR DETERMINATION (I) Whether the learned Judge was justified to come to the conclusion that the Appellants are not entitled to the claim of compensation and damages as prayed for. (II) Whether the learned Judge was justified to come to the conclusion that merely because an earlier suit was filed by the Appellants which was pending, the subsequent suit was not maintainable. 6. On the basis of the submissions of the learned Counsel, it transpires that in the suit filed by the Appellants being Civil Suit No. 241/2004 before learned District Judge, South Goa, Margao, an application was filed by the Respondents for rejection of plaint under Order 7 Rule 11 of the C.P.C. The said application came to be dismissed by the learned Judge and the Order passed by the learned Judge was assailed in Civil Revision Application no. 14/2008. The said Civil Revision Application came to be disposed of by this Court on 07.12.2011, whereby this Court has directed that the said suit be decided on merits after hearing the Appellants and Respondents in accordance with law. Considering the said Judgment passed by this Court and taking note of the fact that the dispute raised by the Respondents to the title of the Appellants is also under consideration in the said suit, I find it FA-52-09 -5- appropriate that the dispute in the present suit is to be adjudicated along with the suit filed by the Appellants pending before the learned District Judge. The claim for damages prayed by the Appellants would be a matter to be considered only in case the Appellants are in a position to establish their claim of title. Considering that the said suit is under adjudication in the earlier proceedings, I find that, in the interest of justice, it would be appropriate that both the suits be tried by one Court to avoid contrary decisions. 7. On perusal of the impugned Judgment, I find that the learned Counsel appearing for the Appellants is justified to contend that the learned Judge whilst passing the impugned Judgment has not considered the documents produced by the Appellants to establish the title of Appellants. This aspect would be crucial to decide as to whether the Appellants are entitled to the claim of damages put forward against the Respondents. Apart from that, the claim of damages has also been rejected on the premise that the Appellants have not established their claim of ownership and title over the suit property. This shows that the reliefs sought by the Appellants in the present proceedings essentially depend on the fact as to whether the Appellants are in a position to establish their claim of title and possession over the suit property. As such, on the overall facts and circumstances of the case, I find it appropriate that the impugned Judgment and Decree deserves to be quashed and set aside and the Civil Suit be decided afresh after hearing the parties in accordance with law. Taking note of the fact that the dispute in the present proceedings is common with that in the said Civil Suit no. 241/2004, the learned District Judge, South Goa, Margao, is directed to ensure that both the suits are FA-52-09 -6- tried by the same Court. Hence the ponts for determination are answered accordingly. 8. In view of the above, I pass the following : ORDER (i) The impugned Judgment and Decree dated 29.11.2008, is quashed and set aside. (ii) The Civil Suit No.63/2005 is restored to the file of the learned District Judge, South Goa, Margao. The learned District Judge is directed to decide the said suit afresh in accordance with law. All the contentions of the parties on merits are left open. (iii) Parties are directed to appear before the learned District Judge, South Goa, Margao, on 16.01.2012 at 10.00 a.m. (iv) Appeal stands disposed of accordingly with no Orders as to costs. F .M. REIS, J. arp/* FA-52-09