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Mr. Armando Pereira and Another Vs. Mr. Krishnanath V. Malvancar (Since Deceased) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 57 of 1997
Judge
Reported in1999(2)ALLMR660; 1999(3)BomCR511
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rules 1 and 2
AppellantMr. Armando Pereira and Another
RespondentMr. Krishnanath V. Malvancar (Since Deceased)
Appellant Advocate S.D. Lotlikar, Adv.
Respondent AdvocateMrs. A.A. Agni, Adv.
Excerpt:
.....procedure, 1908 - grant of interim injunction for restraining applicants from interfering with suit property challenged - dispute was related to title of property - respondent claimed suit property as sub-lessee and applicants claimed the same on basis of two agreements entered between him and owner of land - applicants contended that they were in possession of land since 1982 - they however failed to establish the same - respondent succeeded in establishing his long anterior possession of suit property - held, respondent entitled to get temporary injunction sought by him. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order,..........batta, j.1. the deceased respondent had filed a suit for permanent injunction in relation to suit property 'vale verde' or 'butabaradacho ollo,' surveyed under no. 54/1 of reis magos village at pilerne. an application for temporary injunction was filed seeking to restrain the applicants from interfering with the suit property. this application for temporary injunction was dismissed by the civil judge, junior division, panaji. the deceased respondent filed an appeal before the district judge, north goa, panaji, who, by the impugned judgment dated 3rd march, 1997, set aside the order of the civil judge, junior division and granted the application for temporary injunction filed by the deceased respondent. this order is challenged in this revision.2. the suit property admittedly.....
Judgment:
ORDER

R.K. Batta, J.

1. The deceased respondent had filed a suit for permanent injunction in relation to suit property 'Vale Verde' or 'Butabaradacho Ollo,' surveyed under No. 54/1 of Reis Magos village at Pilerne. An application for temporary injunction was filed seeking to restrain the applicants from interfering with the suit property. This application for temporary injunction was dismissed by the Civil Judge, Junior Division, Panaji. The deceased respondent filed an appeal before the District Judge, North Goa, Panaji, who, by the impugned judgment dated 3rd March, 1997, set aside the order of the Civil Judge, Junior Division and granted the application for temporary injunction filed by the deceased respondent. This order is challenged in this revision.

2. The suit property admittedly belongs to the Communidade of Pilerne and it stands recorded in the records of the Communidade in favour of the heirs of Manuel Vaz. This property is also recorded under Matriz No. 115 in favour of the heirs of Manuel Querobino Vaz. Both the parties to the litigation claimed the suit property through the heirs of Manuel Vaz. The respondent, now deceased, claimed the suit property as sub-lessee of Fr. Vaz, who was lessee of the Communidade and the applicants claim the suit property on the basis of two Agreements dated 7th October, 1982 and 21st October, 1986, executed by Maria Assuncao Vaz, who claims the suit property through heirs of the said Manuel Vaz. The deceased respondent claimed to be in possession of the suit property from 1960, whereas the applicants claim to be in possession of the suit property from the year 1982.

3. Learned Advocate Shri S.D. Lotlikar, appearing on behalf of the applicants, has submitted before me that the Appellate Court erred in interfering with well-reasoned order of the trial Court and in doing so has ignored the relevant factors taken into consideration by the trial Court. According to him, the deceased respondent had failed to prove any document in the nature of sub-lease or rent receipts in order to substantiate his claim in relation to the suit property; that no affidavit of Pandurang Naik, to whom the cashew and mango crop from the suit property is alleged to have been sold in the past, was filed; that the affidavits on behalf of the applicants were wrongly discarded, while accepting the affidavits filed on behalf of the deceased respondent and that the registration certificate, inventory proceedings and other documents produced by the applicants had been over looked by the District Judge. It is further contended that the respondent had failed to prove any connection with the heirs of Manuel Vaz in whose favour the property is registered in Communidade records and that the deceased respondent is a rank trespasser, having no title of title in respect of the suit property.

4. On the other hand, learned Advocate Mrs. Agni, argued that the respondent is in possession of the suit property from 1960; that he has been paying 'for' to the Communidade from 1975 onwards; that the respondent being in possession, is entitled to continue with possession of the suit property and the long settled possession of the respondent itself is sufficient against all, except the real owner. She pointed out that agreement dated 7th October, 1982, does not at all speak of handing over possession to the applicants, nor there is anything on record to show that the earnest money of Rs. 50,000/ - under the said Agreement was, at any time, paid by the applicants; that Maria Assuncao Vaz had claimed right only to half of the suit property in Civil Suit No. 109/77 filed by her against the present respondents, yet the said Agreement dated 7th October, 1982, was in respect of the entire property and the subsequent Agreement dated 21st October, 1986, states that the said Maria Assuncao Vaz is owner of 2/3rds of the suit property, but she entered in an agreement with the applicants in respect of the entire property. It is also pointed out that it cannot be accepted that possession of the property valued at Rs. 3,00,000/- would be given to the applicants only on payment of Rs. 5,000/-. According to her, the agreements have been created during the pendency of Civil Suit No. 109/77 and thereafter with a view to defeat the right of the deceased respondent. According to her, the respondent claims to be tenant of the suit property, but the Civil Court is empowered to grant injunction. In support of this submission, she has placed reliance upon Sujanbai Haribhau Kakde & others v. Motiram Gopal Saraf & another, reported in : AIR1980Bom188 , Laxmi & others v. Savanta Bapu Mali, reported in : AIR1986Bom169 and Marybai Marshal Pimento & another v. Ramnath Gopal Bhuskute & others, reported in : AIR1988Bom108 . She has further relied upon the judgment in Appeal from Order No. 117/1994 Shri Madhai Yeshwant Gaude & others v. Shri Yadu Rama Gaude, decided on 20th December, 1996, and. Shri John Fernandes & another v. Shri Kaviraj Kamath & another, reported in 1997 (1) Goa L.T. 163 in support of her submission that in view of the settled position the deceased respondent is entitled to maintain his possession against all except true owner or a person having better title.

5. I have already pointed out that the suit property is admittedly recorded in favour of the heirs of Manuel Vaz, through whom both the parties lay their claim to the suit property. The claim of both the parties insofar as title to the suit property is concerned, appears to be imperfect. In the previous Suit No. 109/77 filed by Maria Assuncao B. Vaz, the stand taken by the deceased respondent was that the suit property belonged to the family of Delgado and in the present suit filed by the deceased respondent, he claims the suit property as sub-lessee of one Fr. Vaz, who through the intervention of Armando Souza had sub-leased the property to him prior to the Liberation of Goa. No lease documents or rent receipts have been produced. The respondent has also not been able to satisfactorily connect his case of sub-lease through the heirs of Manuel Vaz. In fact, it appears that the case of the deceased respondent is mainly based upon the possession of the suit property claimed by him from the year 1960. On the other hand, Maria Assuncao B. Vaz had filed Civil Suit No. 109/77 against the present respondents in which she had claimed that the suit property Varle Varde registered under Matriz No. 115 belonged to her. An issue to that effect was framed which was answered in the negative, which means that Maria Assuncao B. Vaz had failed to establish her ownership that half of the suit property belonged her. The applicants are claiming right to the suit property through the said Mafia Assuncao Vaz on the strength of Agreements dated 7th October, 1982 and 21st October, 1986. In Agreement for Sale dated 17th October, 1982, the said Maria Assuncao Vaz had agreed to sell the suit property to the applicants. She had claimed only half right to the suit property in the Civil Suit No. 109/77 and it is not understood as to how she can enter into agreement for sale of the entire property. In Agreement for Sale dated 21st October, 1986, the said Maria Assuncao Vaz claimed to be owner of 2/3rds share of the suit property and in exclusive possession thereof and agreed to sell her 2/3rds right in the suit property. How could she enter in to an Agreement for Sale of 2/Srds of the property when she had claimed only half right to the same property in the earlier Civil Suit No. 109/77, is not quite understandable. Moreover, it does not appeal or sound to reason that a party would put a person in possession in pursuance of an Agreement for Sale of a property worth Rs. 3,00,000/- by accepting only a deposit of Rs. 5,000/-. This agreement was entered into after the previous Civil Suit No. 109/77 filed by Maria Assuncao Vaz had been dismissed on 24th July, 1984. Thus prima facie, the applicants cannot acquire any title to the suit property through the said Maria Assuncao Vaz, who had failed to establish her right to the suit property in Civil Suit No. 109/77 filed by her against the present respondents. The parties are trying to find fault with each other's title, when the title of both the parties appears to ,be imperfect. The inventory proceedings as well as registration in favour of Jose Vaz husband of Maria Assuncao B. Vaz, cannot prima fade, be given credence in view of the failure of Maria Assuncao B. Vaz to establish her right to the suit property in Civil Suit No. 1,09/77. In such an eventuality the possession of the suit property would be overriding the consideration for the purpose of grant of temporary injunction. It is also to be borne in mind that the respondent has produced some 'for' receipts from the year 1973, which is paid in the name of the heirs of Manuel Vaz and two affidavits to show how the produce from the suit property was being disposed of by him.

6. Coming to the question of possession, the deceased respondent had succeeded in establishing his possession of the suit property and the conclusion arrived at by the learned District Judge that the deceased respondent had been in possession of the suit property at least since before 1977, cannot be faulted with. The dismissal of the Civil Suit No. 109/77 filed by Maria Assuncao B. Vaz against the respondent would go to suggest that the deceased respondent was in possession of the suit property. Subsequently, this possession of the deceased respondent was also accepted in Criminal Case No. 230/82/D filed before the J.M.F.C., Panaji. In para 4 of the said judgment, it was held that the prosecution has proved that the property under Survey No. 54/1 was in possession of the deceased respondent. Besides this, the respondent had produced receipts of payment of 'foro' from 1975 onwards and affidavits of two persons who worked in the suit property. These affidavit have been rightly accepted by the learned District Judge and the affidavits filed on behalf of the applicants were rightly rejected. The applicants did not speak a word about the produce from the suit property. The claim of the applicants that they are in possession from 1982 onwards is not based upon any material on record. Agreement dated 7th October, 1982 does not even state that possession of the suit property has been handed over to the applicants. Eventhough Agreement for Sale dated 21st October, 1986, speaks of handing over of possession, yet it is difficult to accept this stand for the simple reason that this document was prepared after Maria Assuncao Vaz had already lost the Civil Suit No. 109/77 filed by her against the deceased respondent In which she had claimed that she was owner of half of the suit property. Secondly, it does not sound to reason, nor the same can be accepted that property worth Rs. 3,00,000/- would be put into possession under Agreement for Sale on payment of only Rs. 5,000/-. The theory of possession of the suit property put forward by the applicants therefore, could not be accepted and the same rightly rejected by the learned District Judge.

7. On balancing the material produced on either side, the respondent had succeeded in establishing his long anterior possession of the suit property, whereas the applicants had failed to make out even a semblance of case of possession of the suit property. It is now well-settled and this aspect has been dealt with by me in detail in the judgment in Appeal from Order No. 117/1994 decided on 20th December, 1996 Shri Madhi Yeshwant Gaude & others v. Shri Yadu Rama Gaude, that a person in long anterior and peaceable possession at the time of threat of dispossession is, until the contrary is shown, entitled to maintain his possession against all, except against the true owner or against a person who has better title than him. The applicants having failed to prove better title as well as possession over the suit property and the deceased respondent is entitled to continue in possession of the same through his heirs. Accordingly, the respondent was entitled to the temporary injunction sought by him against the applicants in relation to interference with the suit property. The learned District Judge had, therefore, rightly allowed the temporary injunction application filed by the respondent.

8. For the aforesaid reasons, I do not find any merit in this revision and the revision is accordingly dismissed with costs. Status quo ordered on 26th June, 1997, stands vacated.

9. Revision dismissed.


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