... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. APPEAL FROM ORDER NO.48 OF 2008 1. Shri Jose Olimpia Martins, c/o 'O' Cozinheiro, near Football ground, Caranzalem, Goa. 2. Shri Caetano Martins, Near Football ground, Caranzalem, Goa. ... Appellants v e r s u s 1. State of Goa, Through the Chief Secretary, Alto Porvorim, Bardez-Goa. 2. Corporation of City of Panaji, Through the Chief Commissioner, Panaji, Goa. 3. Panaji Planning Development Authority, Through its Member Secretary, Mala. 4. Inquiry Officer, City Surveyor, Panaji, Collectorate Mamlatdar Bldg., ... 2 ... 5. Hermilia Gonsalves, (Expired represented by defendants no.7, 10 and 11) 6. Santa Gonsalves, (Expired represented by defendants no.7, 10 and 11) 7. Irene Natalia Gonsalves, 8. Joao Camilo Gonsalves, (Expired represented by defendants no.7, 10 and 11) 9. Lizarda Gonsalves, (Expired represented by defendants no.7, 10 and 11) 10. Nicolau Moises Gonsalves, 11. Robert Gonsalves, All resident of Borchem Bhat, Caranzalem, Goa. ... Respondents Mr. Nitin Sardessai with Mr. Rohit Bras De Sa, Advocates for the appellants. Mr. S. R. Rivonkar, Government Advocate for the respondents no.1 and 4. ... 3 ... Mr. T.D.R. Furtado, Advocate for the respondents no.7, 10 and 11. Mr. H. D. Naik, Advocate for the respondent no.3. Mr. S. Dessai, Advocate for the respondent no.21. CORAM: A. P. LAVANDE, J. ORDER RESERVED: 16th OCTOBER, 2008. ORDER PRONOUNCED: 23rd OCTOBER,2008. ORDER: This appeal is directed against order dated 03.05.2008 passed by the District Judge-I, North Goa, Panaji in Civil Suit No.66/2007, dismissing the applicationS for temporary injunction filed by the appellants. ... 4 ... 2. The appellants are the plaintiffs in the above suit filed against the respondents/defendants seeking mandatory and permanent injunction. In the said suit, the plaintiffs filed two applications, first application was filed alongwith the suit, seeking temporary injunction against the defendants no.5 to 11 from putting up any construction or changing the nature of the suit property, more particularly 6 mtrs. wide tarred road in Chalta No.147 of P.T. Sheet no.159. They also prayed for temporary mandatory injunction directing the respondents no.1 to 11 to remove the unlawful obstruction to the said access. The second application was filed on 11.02.2008 seeking temporary injunction against the defendant no.5 to 11 from putting up any construction on the tarred road which was claimed as access road. On the second application, the Trial Court granted injunction ... 5 ... restraining the defendants from putting up any construction in the suit property and 6 mtrs. wide road till further orders. After having considered the pleadings and the documents filed by both the side, the Trial Court dimissed the applications by the impugned order dated 03.05.2008. 3. The Trial Court held that the plaintiffs had not made out prima facie case about the existence of 6 mtrs. wide road in Chalta No.145 of P.T. Sheet no.159 ('the suit property'). The Trial Court also held that the plaintiff had not proved that the defendants no.7, 10 and 11 had raised an illegal compound wall around the suit property. Consequently, the Trial Court dismissed both the applications. It was the case of the plaintiffs that the defendants no.7, 10 and 11 had constructed the compound wall on 6 mtrs. wide tarred road which was a ... 6 ... public road passing through chalta no.147 of P.T. Sheet no.159 which survey number was illegally created. The Trial Court held that the tarred road was not shown in the survey plan nor it was mentioned in form 'D' nor any person in the neighbourhood had filed affidavit in support that there was an access through the suit property. The Trial Court also held that the documents produced by the defendants were public documents having more weight. The Trial Court also relied upon the development permission granted by respondent no.21 for constructing a compound wall to the residential building in the suit property. The Trial Court held that the evidence produced by the defendants clearly established that there was no 6 mtrs. wide tarred road passing through the suit property and therefore, rejected the applications for interim reliefs filed by the plaintiffs. ... 7 ... 4. In support, Mr. Sardessai appearing on behalf of the appellants/plaintiffs submitted that the Trial Court has dismissed the applciations for injunction mainly on two grounds, namely; (i) The plaintiffs have not produced the documents about existence of 6 mtrs. wide tarred road and (ii) the documents produced by the plaintiffs are private documents. According to Mr. Sardessai, both these findings are perverse and the materials placed on record by the plaintiffs clearly establish the existence of the the road through the suit property. He invited my attention to the plans as well as the permissions granted to plaintiff no.2 by the Taleigao Panchayat dated 20.02.1979 as well as the Municipal licence granted to the Sports Club of Caranzalem dated 12.05.1970 alongwith the plan as well as the sale deed dated 07.02.1968 executed in favour of the Sporting Club of Caranzalem. He also invited my ... 8 ... attention to the documents produced by the plaintiffs as well as the defendants and placed reliance upon several provisions of the Panchayat Regulations. Mr. Sardessai submitted that the documents produced by the plaintiffs clearly show 6 mtrs. wide access through the suit proeprty. He further submitted that although the access shown in the photographs does not prove the existence of the tarred road but only mud road, the fact remains that the existence of road is shown and therefore, mere fact that the tarred road is not shown in the photographs is not sufficient to reject the case set up by the plaintiffs. According to the learned counsel, prima facie the existence of the access has been established by the plaintiffs and therefore, the Trial Court ought to have maintained statuquo by granting the application. Mr. Sardessai fairly submitted that the plaintiffs at this stage do not ... 9 ... press the relief of mandatory injunction in so far as demolition of the compound wall is concerend. Lastly, Mr. Sardessai submitted that the findings recorded by the Trial Court while refusing the injunction are patently perserve and therefore, interference is called for by this Court. 5. Per contra, Mr. Lotlikar learned Senior Counsel appearing on behalf of the respondents no.7, 10 and 11 submitted that the fact that the appellants at this stage do not press for the relief of mandatory injunction regarding demolition of the compound wall constructed by his clients is sufficient to disentitle the appellants from seeking the relief of injunction against them from carrying out any construction in the suit property. Mr. Lotlikar submitted tht his clients are ready to carry out their construction at their own risk and in the ... 10 ... event the plaintiffs succeed they will demolish whatever construction undertaken without claiming any equity. According to Mr. Lotlikar, the construction carried out by his clients is in accordance with the approved plans and permissions granted by competent authorities and in the absence of any challenge to these permissions, the application for injunction is not maintainable. According to Mr. Lotlikar, the plaintiffs do not claim right of way, by way of prescription through the suit property but their claim is that there is 6 tmrs. wide tarred road which is by way of access to the public at large. He therefore, submitted that such a suit without leave of the Court is not maintainable under section 91 of the Civil Procedure Code. According to learned counsel, the survey plan and the documents produced by the defendants and the plaintiffs do not establish the existence of any tarred road in the suit property ... 11 ... and once the existence of the tarred road is not established, the plaintiffs cannot contend that they are entitled to an access of a mud road. According to Mr. Lotlikar, the finding of the Trial Court that the documents produced by the plaintiffs are not public documents cannot be faulted in as much as the documents produced by the plaintiffs are not from any public authorities but they are document prepared by private persons. According to Mr. Lotlikar, the fact that the survey plan produced on record does not show existence of any road through the suit property is a clinching factor which disentitles the plaintffs from seeking any temporary relief. Mr. Lotlikar further submitted that it is not the case of the plaintiffs that their access is totally blocked and therefore, not only the plaintiffs have not made out a prima facie case but balance of convenience is clearly not in their favour. Mr. Lotlikar therefore, lastly ... 12 ... submitted that having regard to the well settled principle governing the power of the High Court to interfere with the discretionary order passed by the Trial Court, the appeal filed by the appellants deserves to be dismissed. In support of this submission, Mr. Lotlikar has relied on the case of Wander Ltd. And another v. Antox India P.Ltd. reported in 1990 (Supp) Supreme Court Cases 727. 6. Mr. Naik, Advocate appearing on behalf of the respondent no.3 submitted that the permission has been granted in terms of the approved ODP plan and in the absence of any challenge to the plain, the appellants are not entitled to any reliefs. 7. Mr. Rivonkar, learned Government Advocate appearing on behalf of the respondents no.1 and 4 supported the impugned order. ... 13 ... 8. Mr. S. Dessai, learned Advocate appearing for the respondent no.21 submitted that in the absence of any challenge to the permissions and the approvals, the appellants are not entitled to any relief sought by them. 9. I have considered the submissions made by the learned counsel of the parties and perused the records. 10. The main questions which arise for consideration is (i) whether the appellants have established, prima facie, existence of 6 mtrs. wide tarred road to the suit property and (ii) whether the Trial Court has not exercised jurisdiction according to the well settled principles governing grant or refusal of temporary injunction while passing the impugned order. ... 14 ... 11. The Trial Court has refused to grant injunction sought for by the plaintiffs mainly on the following grounds : (i) Possession of the defendants no.7, 10 and 11 in respect of the suit property has been confirmed by the Inquiry Officer, (ii) Survey plans produced by the defendants do not show the existence of any access to the suit property, (iii) No person from the neighbourhood has filed an affidavit in support of the fact that there exist 6 mtrs. wide tarred road to the suit property, (iv) Defendants no.7, 10 and 11 have obtained permission/licence from Panaji Municipal Council and North Goa Planning and Development Authority ... 15 ... for construction of the building as well as the compound wall, (v) Photographs do not show existence of any tarred road to the suit property but the photographs only show mud road, (vi) The plaintiffs have not established even prima facie existence of 6 mtrs. wide road to the suit property. (vii) The documents produced by the plaintiffs are private documents, 12. The findings given by the Trial Court that the plaintiffs are not entitled to injunction that after considering the above referred first six grounds cannot be said to be perverse. The Trial Court was right in relying upon the survey plans and the O.D.P. in respect of the suit property which ... 16 ... do not show the existence of any access. It is pertinent to note that the plaintiffs came out with specific case that there was a 6 mtrs. wide tarred road passing through the suit property. The finding of the Trial Court that the existence of 6 mtrs. Wide tarred road has not been established by the plaintiffs establishes that the claim of the plaintiffs cannot be faulted. The plaintiffs who approaches the Court seeking an equitable relief must come out with the whole truth. Moreover, there was no dispute that the construction of the compound wall is complete. In this factual back ground, I find merit in the submission of Mr. Lotlikar, learned Senior Counsel that it would not be proper exercise of jurisdiction by this Court to retain the compound wall and not to permit his clients to carry out any construction in the suit property, more particularly having regard to the fact that the defendants no.7, ... 17 ... 10 and 11 have agreed to carry out the construction at their own risk without claiming any equity. One more factor which goes against the plaintiffs is they have not challenged the licence/permission granted by the competent authorities. This is an additional factor which disentitles the plaintiffs from seeking temporary relief as claimed by them. No doubt, some of the documents produced by the plaintiffs may not be strictly construed as private documents but the fact remains that these documents pertain to the period much prior to the filing of the suit and therefore, the documents produced by the defendants like the survey records and the survey plans clearly outweighs the evidentiary value of the documents produced by the plaintiffs. 13. In view of the above discussion, I find no merit in the present appeal. It is made clear that ... 18 ... the construction already carried out and that will be carried out in terms of the approved plans/permissions shall be subject to the result of the suit and the defendants no.7, 10 and 11 will not be entitled to claim any equity on the ground that they have completed the construction. Interim order dated 14.5.2008 stands vacated. The appeal is rejected. 14. Consequently, Appeal From Order No.48 of 2008 and Civil Application No.128 of 2008 and Misc. Civil Application No.758 of 2008 are disposed of. 15. At this stage, Mr. De Sa, learned counsel for the appellants seeks stay of the order. The same is opposed by Mr. Lotlikar, learned Senior Counsel, for the respondents no.7, 10 and 11. Having regard to the findings given by the Trial Court as well as ... 19 ... in this order, I am of the opinion that this is not a fit case for grant of stay. Hence prayer for stay is rejected. A. P. LAVANDE, J. lh/.