MARIA CATARINA SEBASTIANA DSOUZA Vs. SADANAND KRISHNA NARVEKAR

JUDGEMENT

(1.) HEARD Shri J.E. Coelho Pereira, learned Senior Counsel appearing for the petitioners and Shri D. Pangam, learned Counsel appearing for the respondents. The above petition challenges the Judgment dated Miscellaneous Civil Application preferred by the petitioners bearing no.12/2007 was partly allowed and the respondents were restrained by a temporary injunction from carrying out any further construction to the suit structure or any other construction to the suit property pending final disposal of the suit.

(2.) THE petitioners filed the suit on the ground that there is a property known as "Malna Pequeno" surveyed under no.12/5 admeasuring an area of 8925 square metres and also a property known as "Malna Pequeno Corona" surveyed under no.24/1 admeasuring an area of 21,500 square metres situated at Pilerne and that the property has been divided at the time of the new survey. It is further the case of the appellants that in the property surveyed under no.12/5 there exists an old structure having an area of 100 square metres approximately which has been gradually and illegally extended by the respondents to the extent of 143 square metres. It is further their case that illegal construction consists of new structure of wooden bamboo frame of 53 square metres, new structure under construction consisting of half constructed unplastered laterite stones masonary walls occupying a plinth area of 144 square metres, a new structure of wooden frame work with A.C. room admeasuring an area of 27 square metres, earlier structure of wooden framework with an area of 3 square metres and another new structure under construction having an area of 36 square metres besides a new wooden frame occupying an area of 34 square metres, an illegal extension carried out to the old house. It is further his case that illegal work of construction started about 8 to 10 days prior to 5/04/2006 and accordingly the suit has been filed along with an application for temporary injunction praying inter alia that the respondents and their family members, agents, labourers and all person/s be restrained from interfering with the possession of the appellants in respect of the suit property in whatsoever manner and also from carrying out any further construction work to the suit property. By order dated 25/01/2007 the learned Civil Judge Senior Division at Mapusa dismissed the application for temporary injunction filed by the appellants. Being aggrieved by the said judgment the appellants preferred an appeal before the learned Additional District Judge whereby the appeal was partly allowed and the respondents were inter alia restrained from carrying out any further construction to the suit structure and any other construction work in the suit property pending disposal of the suit. The remaining part of the injunction prayed by the appellants came to be rejected.

(3.) ON perusal of the impugned judgment passed by the lower Appellate Court it has been held therein that the question as to who is in possession of the suit property would have to be adjudicated after recording of evidence and, as such, at this stage injunction cannot be granted to restrain the respondents from interfering with the possession of the petitioners over the suit property. As it is an admitted fact that the respondents had their house and structures constructed in the suit property, only part of the relief was granted in favour of the petitioners restraining the respondents from carrying out any construction work in the said property.