Maria Margadia Sequeria Fernandes & Ors vs Erasmo Jack De Sequeria (D) Tr.Lrs.& Ors

3. Appellant No.1 and respondent No.1, Erasmo Jack de Sequeira (now dead) were sister and brother, hereinafter referred to as appellant and respondent respectively.

4. According to the appellant, she is the sole owner and is in exclusive possession of the suit property. Her title of the said suit property was clearly admitted, and never disputed by the respondent, Erasmo Jack de Sequeira. According to the appellant, the suit property was given to her brother as a caretaker. The respondent has kept appellant, his own sister, out of her suit property for about two decades by suppressing relevant material and pertinent information from the Court and abusing the process of law.

5. Both the appellant and the respondent hail from the State of Goa and belong to one of the leading and well known families of Goa. The father of the appellant and the respondent, Dr. Jack D. Sequeira was an affluent businessman and a well-known politician of Goa. Dr. Sequeira, during his lifetime, gave a number of properties worth crores of rupees to the respondent and also gave some properties to the appellant and her sisters. The respondent was given a soft drink factory at Goa, mining leases of iron ore, agricultural lands and residential plots including one situated at Dona Paula, which is located next to the Governor's House. Though the respondent was given properties worth several crores of rupees, he still eyed on a small property which the appellant purchased through Court auction after paying full sale consideration. The respondent-

6. The appellant urged that the suit property originally belonged to her grandmother. Under the Portuguese Law, her (grandmother's) children, i.e. two sons and a daughter (the appellant's father, uncle and aunt) got 1/3rd share each in the said suit property. The suit property of her grandmother was put to auction and this suit property in question was purchased in auction by the appellant. In the Inventory Proceedings No. 1075/935 in the year 1968, she became the exclusive owner of the suit property. Admittedly, the appellant has placed a certified copy of the order of the Civil Judge, Senior Division at Panaji dated 27th May, 1972 issued in favour of the appellant. According to the appellant, the possession and title of the suit property in favour of the appellant is established from the judgment of the Inquiry Officer of City Survey Tiswadi, Panjim, Goa. The said order was not only passed in the presence of the respondent, but also in the presence of his Attorney, Rodrigues who was also a senior executive officer of the respondent. The relevant portion of that judgment is as under:-

8. It may be pertinent to mention that the respondent had even participated in the said Court proceedings on behalf of his handicapped aunt, Edna May Sequeria as a guardian and received a cheque on her behalf. The appellant had deposited Rs.40,000/-, the owelty money in the said Court proceedings which became payable on account of the purchase of the said house. The said suit property stood registered in Panaji Municipal Council in the name of the appellant. House tax was paid by the appellant to the Municipality on self-

9. The Panaji Municipal Council, Goa issued a certificate showing that possession of the suit premises was with the appellant and the house tax of the suit property was paid by her and she was the recorded owner of the same. According to the appellant, the respondent himself had acknowledged possession and title of the suit property in favour of the appellant.

10. The appellant submitted that she got married on 8.9.1974 to an Officer of the Indian Navy who was posted from time to time in different places in India. She also submitted that the respondent - her brother requested her that as his office is just adjacent to the suit property, therefore, it would be convenient for him to run his office and to keep an eye on the suit property of the appellant. Therefore, the suit property was given to the respondent only as a caretaker.

11. The respondent executed a leave and licence agreement in the name of his wife to shift with his family out of the suit property completely on 1.4.1991 to Campo Verde Apartments at Caranzalem in Goa. The leave and licence agreement executed by the respondent's wife for the new house wherein the respondent and his family shifted on 1.4.1991 and thereafter got the agreement renewed on 7.3.1992. The respondent also owned one flat in Goa and occupied on 17.4.1991.

12. According to the appellant, the respondent handed over the suit property to his sister Maria in the first week of May, 1991 and requested her that some items which were already lying in the suit property which the respondent did not immediately require in his new place may be kept in the suit property. According to the appellant, her brother before shifting to the tenanted flat, handed over the keys of the house to the appellant. The appellant did not take any receipt from her brother or click a photograph to create evidence showing handing over of the custodian possession of the suit property.

The respondent shifted to his new flat and the suit property was lying almost vacant because the appellant along with her husband was living outside Goa on his different official postings.

13. According to the appellant, the details of electricity, water and telephone bills clearly demonstrate that the house was locked and the small amounts payable in the said months, i.e., August, September, October and November in the year 1991, February 1992 also showed very nominal payments of Rs.30/-, Rs.33/-, Rs.68/- which conclusively proved that a house comprising of several rooms, drawing, dining, bathrooms, verandah, lawns etc. was lying vacant.

14. On 20.5.1992, the appellant returned with her family to Goa and occupied and enjoyed the said suit property. The appellant submitted that she has a valid title/ownership and was in possession of the suit property and she could not be dispossessed by a Court in a suit for injunction. The appellant submitted that under Section 6 of the Specific Relief Act, the appellant could not have been legally compelled to hand over the possession to the respondent. It may be pertinent to mention that the respondent had filed a suit for injunction before the Trial Court. The Trial Court granted injunction in favour of the respondent and the same was upheld by the High Court in the impugned judgment in Civil Revision Application.

17. On 17.6.1992, the respondent filed a suit for permanent and mandatory injunction in the Court of Civil Judge, Senior Division at Panaji as a Special Civil Suit No.131/92/A. On 22.6.1992, an ex-parte order for depositing the keys was passed while the appellant and her family members were living in the suit premises. The Trial Court decreed the suit.

22. The learned counsel for the parties reiterated the submissions made before the Courts below. The appellant submitted that she is a helpless and hapless sister of the respondent who has been kept out from her own house for more than two decades. The appellant is the owner of the suit property which is evident from the Certificate of the Probate Proceedings known as Inventory Proceeding No.1075/935.

Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.

70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.

Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.

Suit for Mandatory Injunction

83. We approve the findings of the High Court of Delhi on this issue in the aforesaid case.

False claims and false defences

84. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount.

Grant or refusal of an injunction

87. The safe and better course is to give short notice on injunction application and pass an appropriate order after hearing both the sides. In case of grave urgency, if it becomes imperative to grant an ex-parte ad interim injunction, it should be granted for a specified period, such as, for two weeks. In those cases, the plaintiff will have no inherent interest in delaying disposal of injunction application after obtaining an ex-parte ad interim injunction. The Court, in order to avoid abuse of the process of law may also record in the injunction order that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution, actual or realistic costs. While passing the order, the Court must take into consideration the pragmatic realities and pass proper order for mesne profits. The Court must make serious endeavour to ensure that even-handed justice is given to both the parties.

88. Ordinarily, three main principles govern the grant or refusal of injunction.

Mesne Profits

102. In this view of the matter, the impugned judgment of the High Court as also of the Trial Court deserve to be set aside and we accordingly do so. Consequently, this Court directs that the possession of the suit premises be handed over to the appellant, who is admittedly the owner of the suit property.

103. In the peculiar facts and circumstances of this case, the legal representatives of the respondent are granted three months time to vacate the suit premises. They are further directed that after the expiry of the three months period, the vacant and peaceful possession of the suit property be handed over to the appellant. The usual undertaking to this effect be filed by the legal representatives of the respondent in this Court within two weeks.

105. As a result, the appeal of the appellant is allowed. In the facts and circumstances of the case, the respondents are directed to pay a cost of Rs.50,000/- to the appellant within four weeks. (We have imposed the moderate cost in view of the fact that the original respondent has expired). Ordered accordingly.

March 21, 2012