SURYA VINAYAK KAISSARE Vs. RAUJI YESSO NAIK

JUDGEMENT

(1.) THIS revision application arises from judgment and order dated 21st November, 1998 passed in Miscellaneous Civil Application No. 62/98 by the Additional District Judge, Panaji. By the impugned judgment, the lower Appellate Court has allowed the appeal filed by the respondent herein against the order dated 29th January, 1998 passed in Civil Miscellaneous Application No. 191/96/b in Regular Civil Suit No. 103/96/b by the Civil Judge, Junior Division, Ponda. While allowing the appeal, the lower Appellate Court has set aside the said order of the trial Court whereby the trial Court had granted the injunction in favour of the petitioner restraining the respondent from carrying out any construction in the suit property or from interfering whatsoever in the suit property. The lower Appellate Court has also dismissed the application for injunction filed by the petitioners in the trial Court.

(2.) THE case of the petitioners is that they are the co-owners in possession and enjoyment of the property bearing Survey No. 103/o which is mainly a coconut garden consisting of fruit bearing trees and situated at Nagzar, Ponda. It is their case that the coconuts and other fruits from the fruit bearing trees are being plucked by the petitioners through the pluckers/labourers and agricultural operations are also being carried out with the help of labourers. The respondent is a torl residing at Nagzar and rendering the services of watch and ward in relation to the suit property and on that count the petitioners pay to the respondent 8% of the coconut yield plucked at each plucking. It is the contention of the petitioners that the services rendered by the respondent are purely personal in nature and do not create any right in the suit property. However, the defendant filed tenancy proceedings laying claim of tenancy in the year 1983 and thereafter in January, 1994 constructed a shed of laterite stones occupying some area of the suit property and the petitioners thereupon lodged complaint with the Panchayat regarding the said construction and also represented to the Director of Panchayat and B. D. O. , Ponda for necessary action in relation to the said construction. On account of inaction on the part of the authorities, the respondent was further encouraged to dump construction materials in the suit property on or about 7th December, 1996 and as such the petitioners apprehending interference in the suit property filed the suit for injunction and also prayed for interim relief.

(3.) IT is the case of the respondent that he is the lawful tenant in possession of the petitioners in respect of the suit property and the tenancy case filed by him in that regard is pending before the competent authority. The suit property was earlier managed and looked after by one Anant Manguesh Sinai Kaissare and he used to collect the rents on behalf of the plaintiffs and it was only from 1980 onwards that the rents were collected by the petitioners and their family members. The suit property is not a merely coconut grove but also a cashew garden in which substantial plantation has been done by the respondent and pluckings are also being done by the respondent and at every such plucking a part of yield is taken by the petitioners as their share for which receipts were issued by the petitioners in note book kept by the respondent with the signatures of the petitioners and the remaining yield was taken by the respondent and in that manner the rents were settled which used to differ from time to time as per the yield of coconuts. The petitioners stopped bringing their pluckers since 1993 and then onwards it was exclusively done by the respondents. After recording the share of yield in favour of the petitioners in the note-book, the said yield used to be entrusted with the respondent who used to sell the same to the Bagaytdar Society and monies collected were distributed by the petitioners in two equal shares to the petitioners family. According to the respondents, receipts have been issued by the petitioners towards the coconuts and cashews from 1981 onwards. The respondent has paid rents upto the year 1992-93. It is his further case that the structure in the suit property is in existence for the last more than fifty years which was originally a thatched structure but since 1978, it was replaced with laterite stone structure and there is no other shed besides the said structure in the suit property. It is also his case that the respondent is not having any other property on tenancy basis either from the petitioners or even from any third party. It is his further case that since in the year 1981 it was noticed by the respondent that the shed was not entered in the Records of Right of the suit property and necessary application to the Mamlatdar for necessary entry in that regard in the survey records had been filed by the respondents.