MARIA COLACO Vs. ALBA FLORA HERMINDA D SOUZA

JUDGEMENT

(1.) This appeal is directed against the order dated 5.3.2001 passed in Second Appeal No.55 of 2000 by the High Court of Bombay at Goa whereby learned Single Judge has set aside the order of the first appellate court and allowed the suit of the original plaintiff and granted injunction restraining the defendants from proceeding with the construction in the suit property or doing anything in the suit property and the defendants were directed to restore the suit property in its previous condition by filling up the foundation trenches and removing anything done or might have been done by the defendants in the suit property. Aggrieved against this order the present appeal was filed.

(2.) Brief facts which are necessary for disposal of this appeal are that the suit property was granted by the Governor General Do Estado Da India, to one Mr. Antonio D' Souza on payment of Rupees four nine anna and twenty paise payable each year to the State. Antonio D'Souza died leaving behind his heirs, his children Jose Maria D' Souza and Elisa D' Souza. Jose Maria D' Souza expired leaving behind her daughter Umbelina D' Souza. Lawrance D' Souza, husband of Umbelina D' Souza also died. Umbelina D' Souza died leaving behind the plaintiff and his brothers. As the plaintiff was staying in Bombay, he requested one Amorim Velho, son of Elisa D' Souza to look after the property and accordingly, he was looking after the suit property till 1977. Thereafter, Joildo De Aguiar looked after the property. In August,1981 Aguiar went abroad and returned in November,1981. On his return he found that some construction work was undertaken by M/s.Pinto Engineers and Contractors, Defendant No.3 through their agents. Then Robert D' Souza filed a regular suit in the court of the Civil Judge, Junior Division, Panjim and prayed that the defendants and their agents should be restrained by perpetual injunction from interfering in any manner with the possession of the plaintiff and his brothers in respect of the suit property and they be restrained from proceeding with the works of construction in the suit property and to return the suit property in its original condition. The defendants filed their written statement and resisted the suit.

(3.) We have heard learned counsel for the parties and perused the record. Learned Single Judge after examining the matter found that in fact on the date Aguair came to know that the defendant Nos. 1 & 2 had induced the defendant No.3 to believe that they were the owners and possessors of the suit property and that on such a condition the defendant No.3 entered into an agreement with Defendant Nos.1 & 2 whereby the defendant Nos.1 & 2 had promised to sell the suit property to defendant No.3 and who was allowed to construct the building consisting of flats in the suit property and Aguair also came to know that on 1.9.1979 a deed of justification was recorded by the Registrar cum-Sub Registrar and Notary, ex- Officio Ilhas, Goa wherein it was falsely declared that Defendant No.1 was the owner and was in possession with exclusion of any other persons of the suit property and had possessed the suit property for more than 30 years. On further query he came to know that the defendant No.1 managed to get the suit property registered in the records of the land revenue office in her name and thereafter they got the plan for construction sanction approved by the Panaji Municipality. But when Aguair raised objection then defendant No.3 stopped construction work for four days and thereafter he again started the work by placing the steel reinforcement for casting footing. Therefore, the plaintiff apprehended that they would proceed with further construction and therefore, the plaintiff was constrained to file the suit. Therefore, on that basis it was submitted before the learned Single Judge of the High Court that from these facts it was more than apparent that the plaintiff lost the possession. Therefore, at the relevant time the plaintiff was not in possession of the suit property. As such, there was no cause for filing the suit for permanent injunction. Learned Single Judge after considering the matter found that these averments did not constitute the basis on the part of the plaintiff that he was not in possession of the suit property. On the contrary, learned Single Judge found in reply to paragraph 13 of the plaint, the defendants in their written statement admitted that the work was stopped by the defendant No.1 for some time but they restarted the work again.