MARGARET ALBUQUERQUE Vs. JOAQUINA ANA OLYMPIA CASTELINO ALBUQUERQUE

JUDGEMENT

(1.) The Appeal challenges the Order dated 31.07.2009, passed by the learned Civil Judge, Senior Division at Mapusa, in Special Civil Suit no. 69/2006/C, whereby an application for temporary injunction filed by the Appellant came to be dismissed.

(2.) The suit has been filed by the Appellant claiming inter alia that her father was the owner and had a right to the property known as "Soronto", admeasuring 10,025 square metres surveyed under no. 209/6, described in the Land Revenue Office under no.2878, which property includes an old residential house bearing no. 648/1 situated at Anjuna. It is further the contention of the Appellant that her grandmother Anna Cristalina E. D. Albuquerque by a Registered Public Will, bequeathed to her father Mr. Irineu Vincente Escolastico Albuquerque, one half of all the assets, rights and shares of her free and disposable quota/share which she was entitled. It is further her contention that the revenue records stand in the name of the father of the Appellant. It is further her case that her mother, the original Defendant no.1, had executed an Agreement of Licence dated 27.11.1998, which she learnt only in the year 2002, with one Mr. Ronley Erez, to carry on some business activity therein. Upon inquiries, she learnt from the said third party that they were occupying a portion of the house existing in the said property since November, 1998 on the basis of the Agreement of Licence which was renewed on 23.03.2002. A letter was addressed to the third party to the effect that the Appellant was also co-owner of the suit property and that his possession was illegal in the eyes of law. Claiming that the Appellant is entitled in law to a share in the suit property, the Appellant has filed the suit, inter alia, to restrain the Respondents from creating any third party right by way of sale, gift, transfer, lease, licence, mortgage, etc., in respect of the suit property without the consent of the Appellant. A mandatory injunction was also sought restraining the Respondents from prohibiting the entry of the Appellant, her servants and agents from enjoying the suit property. The Appellant has also prayed for other reliefs as mentioned in the plaint.

(3.) The suit was resisted by the Respondents on the ground that the same has been filed without any cause of action and that the Appellant had approached the Court with unclean hands and further that the suit is barred by limitation. The Respondents have also disputed the existence of the suit house within the suit property and further contended that the suit property surveyed under no. 209/6 of Anjuna, does not comprise of the suit house bearing house no. 648/1. The Respondents, however, admitted that the Survey Records indicate the name of the deceased father Vincent Alburquerque as a sole occupant thereof. It is further their contention that the Appellant never enjoyed any right within the suit property nor in respect of the suit property from any point of time for more than thirty years and, consequently, had lost all her rights over the suit property. It is further their contention that the income derived by the deceased mother, original Defendant no.1, was for her own maintenance and livelihood. The Respondents also contend that they never intended to sell or alienate or create any third party rights in respect of the suit property. For other reasons as stated in the written statement, the Respondents contend that the suit deserves to be dismissed..