SURYA RAMCHANDRA NAIK Vs. SUXILA TUKARAM NAIQUE

JUDGEMENT

(1.) Heard Mr. Nitin Sardessai, learned Counsel appearing for the appellants and Mr. R.G. Ramani, learned Counsel appearing for the respondents.

(2.) The above second appeal came to be admitted by an order dated 5th January, 2011, on the following substantial questions of law :

(3.) Shri Sardessai, learned Counsel appearing for the appellants in support of the first substantial question of law has pointed out that the respondents have filed the suit for injunction simplicitor in respect of a property survey No.28/1 of Village Bandolim, Taluka Sanguem, Goa claiming that such a property was a grant by the Government to the respondents. The learned Counsel further points out that according to the appellants they are in possession of a portion of the said property, admeasuring an area of 20,000 sq. metres adjoining to their residential house. The learned Counsel further points out that the appellants have brought material on record to establish that the grant which was granted way back in the year 1942 was in fact resumed by the Government in 1973 on account of default committed by the respondents with regard to the terms of such grant. The learned Counsel further points out that as the grant was itself cancelled, the question of claiming such right to the property on the basis of the original grant/aframento would not arise. The learned Counsel further points out that the appellants have brought material on record to show that there was a checklist by the local Talathi wherein occupation by the appellants was detected to an area of 20,000 sq. metres from the property survey No.28/1. The learned Counsel further points out that after the said checklist, the appellants initiated proceedings for regularisation which were filed before the Deputy Collector concerned. The learned Counsel further submits that this document produced by the appellants, coupled with the document of the delivery of possession of the original grant, conclusively establishes that the respondents have no subsisting right over the suit property and, as such, the lower appellate Court was not justified to grant the injunction in favour of the respondents. The learned Counsel points out that the claim of the respondents that they were in possession of the property has not been established by the evidence on record, nor the learned judge has relied upon any documentary evidence to substantiate such a claim by the respondents. The learned Counsel further submits that when the Government Authorities themselves have found that the appellants were in possession of an area of 20,000 sq. metres, that would itself suggest that the claim of the respondents that they were in possession of the whole property cannot be accepted. The learned Counsel further points out that considering that the land was resumed and such a fact was notified in the official gazette, the respondents were not entitled to file a suit for injunction simplicitor, without seeking a declaration of their ownership and possession of the entire property. The learned Counsel further points out that there was a cloud in the title as well as the claim of possession of the respondents over the suit property and, as such, the suit for injunction simplicitor would not lie. The learned Counsel has, thereafter, taken me through the impugned judgment of the lower appellate Court and pointed out that the lower appellate Court has relied upon a judgment of the Apex Court in Wander Ltd. & Anr. V/s. Antox India P. Ltd., 1990 Supp1 SCC 727, which is applicable only in discretionary orders, passed in miscellaneous proceedings for temporary injunction. The learned Counsel further points out that without examining the case of the appellants that they were in possession of a specific area of the property, the learned Judge was not justified to pass the impugned judgment. The learned Counsel, thereafter, has taken me through the judgment of the lower appellate Court and pointed out that the learned Judge has misread the documentary evidence produced by the appellants, specially the checklist to draw a conclusion that such a document was not in respect of the suit property, when on a plain reading of the plan attached to the checklist it clearly shows that it pertains to the suit property survey No.28/1. The learned Counsel has thereafter taken me through the recovery possession document produced on record which shows that the possession was taken by the concerned authorities from the widow of the original grantee of the said land. The learned Counsel further points out that all official acts are presumed to be in accordance with law and, as such, as the respondents were disputing the correctness of such a document, it was incumbent upon the respondents to rebut such presumption which they have failed in the present case. The learned Counsel further points out that the learned Judge has erroneously put the burden on the appellants to establish that the thumb impression on the document was that of the widow of the original grantee Smt. Laxmi Naik. The learned Counsel has, thereafter, taken me through the relevant portion of the impugned judgment and pointed out that the learned Judge has totally misconstrued the evidence on record and has erroneously come to the conclusion that the respondents are entitled for the reliefs sought for in the suit.