RAYMOND APOCIANO ROSARIO Vs. EUSEBIA ESPERANCE RODRIGUES

JUDGEMENT

(1.) THE above appeal challenges the order dated 31/07/2009 passed in CMA No.110/2004 in Special Civil Suit No.23/2004 by the learned Civil Judge, Senior Division, Mapusa whereby the application for temporary injunction filed by the appellants came to be dismissed. It is the case of the appellants, in short, that the suit property is the property surveyed under no.198/5 of Calangute village belonging to Mr. Aleixo Rodrigues and his wife Mrs. Maria Joaquina Miranda, who have now expired. It is further their case that there is a residential house in the suit property which was constructed by Mr. Apociano Vicente Rodrigues at his own expenses and who was a bachelor. The appellants are claiming to be one of the heirs of the said Mr. Aleixo Rodrigues and his wife Mrs. Maria Joaquina Miranda and, consequently, claiming the share in the suit property. The appellants do not dispute that the respondents nos.1 to 8 are also co -heirs and are entitled to the estate of the said Shri Aleixo and Mrs. Maria and according to the appellants the suit property which consists of the said residential house has not been partitioned and, as such, they have right and interest therein. It is further their case that the appellants had kept a care taker in the suit house in view of the fact that they were abroad and during their absence respondents nos.1 to 8 have forcibly taken possession of the suit house and executed a Sale Deed in favour of respondent no.9 without their consent including the said Sale Deed on the basis that the same is null and void the appellants have filed the suit claiming for eviction of the respondents nos.1 to 9 and for other consequential reliefs. During the pendency of the said suit the appellants filed the application for temporary injunction.

(2.) THE respondents resisted the suit filed by the appellants and disputed the claim of the appellants to the suit property. It is further their case that the respondents nos.1 to 8 were in possession of the suit property and that in exercise of their proprietary right the suit property came to be continued in favour of respondent no.9. Apart from that in the written statement and reply filed by the respondents, it is further their contention that after the execution of the Sale Deed in favour of respondent no.9, the said defendants had by concluded contract transferred the possession of the suit house in favour of some third party. The respondents disputing the claim put forward by the appellants submitted that the application for temporary injunction deserves to be rejected.

(3.) AFTER hearing Shri S.D. Lotlikar, the learned Senior Counsel appearing for the appellants and Shri A.D. Bhobe, the learned Counsel appearing for the respondents. Without going into the correctness or otherwise of the rival contentions raised by the parties, I find that prima facie there is no dispute that the suit property originally belonged to said Mr. Aleixo Rodrigues and his wife Mrs. Maria Joaquina Miranda. The fact as to whether the rights in the suit property have devolved in favour of the appellants or that such rights have been established is the matter which has to be considered after recording of evidence. Nevertheless, considering that there is nothing shown on record as to the manner in which the title of the appellants has been extinguished and established, I find that in the interest of justice, it would be appropriate that without going into the correctness or otherwise of the rival contentions that the suit filed by the appellants can be ordered to be expedited so as to reach its logical conclusion, but however, during the pendency of the said proceedings, considering the facts and circumstances of the case, the respondents had to be put on terms so that at the time of the final disposal of the suit an equitable order on that count can be passed by the learned Judge while disposing of the suit. In such circumstances when asked as to what would be reasonable amount which could be deposited during the pendency of the suit, Shri S.D. Lotlikar, the learned Senior Counsel pointed out that according to him the income derived from the suit house would be more than Rs.1 lac, but however, Shri Bhobe the learned Counsel appearing for the respondents pointed out that such claim has no basis as according to him the appellants themselves have claimed mesne profit/compensation at the rate of Rs.10,000/ -per month during the pendency of the suit.