RANGANTH SHANKER BHOSLE Vs. MULLA SAJJAD

JUDGEMENT

(1.) HEARD Shri A. D. Bhobe,, learned Counsel appearing for the Appellant, Shri M. B. D' Costa, learned Senior Counsel appearing for the Respondent no.1 and Shri Mahambrey, Addl. Government Advocate for the Respondent no.2. The above Appeal challenges the Order passed by the learned Addl. District Judge, North Goa, at Panaji, whereby, an application for temporary injunction filed by the Respondent no.1 came to be partly allowed and the Appellant, his agents, servants, representatives, family members or any person acting on his behalf were restrained from interfering with the suit property and/or from interfering with the Plaintiff's possession over the suit property.

(2.) SHRI Bhobe, learned Counsel appearing for the Appellant, has assailed the impugned Order essentially on the ground that the Appellant is in occupation of an area of 2000 square metres from the property surveyed under no. 248/1. The learned Counsel further points out that the Appellant has a residential house in the property surveyed under no. 248/2 and that he has put up a storeroom in the portion of the property surveyed under no. 248/1 for the last several years. Learned Counsel further pointed out that as far as the disputed portion admeasuring 2000 square metres is concerned, the Appellant has planted fruit bearing trees existing besides various other trees which are in their occupation and possession. Learned Counsel further pointed out that there was an earlier proceeding filed by some other co -occupants of the property surveyed under no. 248/1 against the Appellant herein, inter alia, claiming that the Appellant has encroached into the property surveyed under no. 248/1 and the suit came to be disposed of on 22.07.1994. Learned Counsel has taken me through the impugned Order and pointed out that the said co -occupants had failed to establish their claim of title and possession in respect of their suit property. Learned Counsel further pointed out that immediately thereafter, the Respondent no.1 has filed the present suit seeking identical reliefs. Learned Counsel further pointed out that considering that the co -occupants have failed to establish title and possession in respect of the suit property, the question of granting any injunction in favour of the Respondent no.1 by the impugned Order does not arise. The learned Counsel has pointed out that there is also a compound wall which has been constructed by the Appellant and that such compound wall itself establishes that the disputed portion is in possession of the Appellant herein. Learned Counsel has taken me through the impugned Order and pointed out that the learned Judge has misconstrued the evidence on record and has come to an erroneous conclusion that the Appellant has failed to establish that he is in occupation and possession of the disputed portion of the property admeasuring 2000 square metres. Learned Counsel as such submits that the impugned Order deserves to be quashed and set aside.

(3.) I have carefully considered the submission of the learned Counsel appearing for the respective parties. I have also perused the impugned Order and the material on record. On perusal of the records, it cannot be disputed that the name of the Appellant does not figure in the Survey Records neither as a co -occupant or as a tenant thereof. The claim of the Appellant that he is a tenant of the Communidade of Bandora, is a matter which has to be established in appropriate forum. But, however, in the earlier Judgment passed in the suit filed by other co -occupants as against the Appellant herein, the learned Judge has come to the conclusion that the Appellant has failed to establish that the disputed portion belonged to the Communidade of Bandora. Apart from that, it is also to be noted that the learned Judge has also come to the conclusion that the Plaintiffs in the said suit had failed to establish their title and possession in respect of the disputed portion. Be that as it may, the learned Judge whilst passing the impugned Order on the basis of the Survey Records and other material adduced by the parties, has come to the conclusion that the Appellant has failed to establish his claim of possession in respect of the disputed portion in the suit property. Shri Bhobe, learned Counsel appearing for the Appellant, has pointed out that proceedings for declaration of tenancy are pending before the learned Mamlatdar which have not been disposed of. Considering the said aspect, it cannot be overemphasized that the learned Mamlatdar has to independently decide the claim of tenancy put forward by the parties after hearing the parties in accordance with law. Unless such claim is established, the question of the Appellant claiming prima facie that he is in possession of the disputed portion on such basis, does not arise. In the present proceedings, the records suggest that the name of the Appellant does not figure in the Survey Records and, as such, the learned Judge was justified to come to the conclusion that the disputed portion belongs to the Respondent no.1. But, considering the earlier Judgment produced on record, there is a specific averment made therein by the Plaintiffs in the earlier suit who were the co -occupants in the suit property that the Appellant has put up a construction in the disputed portion. Considering the said aspect, as far as such construction existing in the suit property is concerned, the Appellant has established prima facie that he is in possession of the area of such construction. When this was pointed out to Shri M. B. D' Costa, learned Senior Counsel appearing for the Respondent no.1, upon instructions, the learned Senior Counsel stated that the said portion of the construction can be excluded from the injunction granted by the impugned Order. Shri Bhobe, learned Counsel appearing for the Appellant had also raised a grievance that he had planted some trees in the suit portion of the property which the Respondent no.1 destroyed. As such, Shri D' Costa, learned Senior Counsel appearing for the Respondent no.1, upon instructions, made a statement that the Respondent no.1 shall not cut any of the trees existing in the disputed portion nor change the nature of the disputed portion without prejudice to his rights and contentions, until the disposal of the suit. The said two statements of the learned Senior Counsel on behalf of the Respondent no.1 are accepted.