COMUNIDADE OF POINGUINIM Vs. DIKSHA HOLDINGS LIMITED

JUDGEMENT

(1.) Heard Shri Sudesh Usgaonkar, learned Counsel appearing for the appellant and Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the respondent.

(2.) The above appeal came to be admitted by an order dated 24th June, 2009, on the following substantial questions of law :

(3.) Shri Sudesh Usgaonkar, learned Counsel appearing for the appellant, in support of the above appeal, has pointed out that the appellants have filed the suit for injunction simpliciter on account of alleged interference by the respondent with the suit property bearing Survey No.191/0 of Village Poinguinim. The learned Counsel further submits that it is the case of the respondent that they had purchased the property from the family of Wadiyars pursuant to a Deed of Sale dated 22/12/1994. The learned Counsel has, thereafter, taken me through the said sale deed to point out that the property claimed by the respondent is part of the property registered in the Land Registration Office under No.4181 and forming part of Survey No.191/0. The learned Counsel further points out that the respondent has not disclosed the matriz number of the specific portion purchased by them as, according to him, the property inscribed in the name of the appellant is one under Matriz No. 982. The learned Counsel further points out that the Matriz number in respect of the property belonging to the predecessor-in-title of the appellant was 981. The learned Counsel has, thereafter, taken me through the Land Registration documents to point out that the property inscribed under No.982 does not form part of the property registered in the Land Registration Office under No.4181. The learned Counsel has, thereafter, pointed out that the appellants were in possession of the disputed property and, as such, the Lower Appellate Court has erroneously allowed the appeal filed by the respondent. The learned Counsel further submits that the predecessors-in-title of the respondent were not in possession of the disputed property and according to him, the boundaries, as disclosed in the Matriz document of the property of the appellants, correspond to the boundaries in respect of the portion of the property purchased by the respondent pursuant to the sale deed. The learned Counsel has, thereafter, taken me through the boundaries as shown in the sale deed executed in favour of the respondent to point out that the boundaries in fact suggest that the Arabian Sea is on the southern side and the river towards the north, west and south and towards eastern side the property of "Devasthan Betal". The learned Counsel further points out that it is the case of the appellant that for the purpose of performing the religious functions of the temple, the appellants permitted the devotees of the said Devasthan to carry out their activities. The learned Counsel further submits that it is not in dispute that on the top of the hill, there is a religious monument, which was being used by the Devasthan for the religious functions and that the fruits of the trees were being offered for performing such religious functions. The learned Counsel further points out that as the predecessors-in-title of the respondent, namely the Wadiyar family were not in possession of the property in dispute, the question of dismissing the suit filed by the appellant is totally misplaced. The learned Counsel further submits that survey records in respect of the property in dispute though were standing in the name of the predecessor-in-title of the respondent, nevertheless, way back in 1994 there were proceedings initiated by the appellant for rectification of the said survey records in terms of Section 14 of the Goa Land Revenue Code. The learned Counsel further submits that though objections were rejected, nevertheless, the appellants have carried the dispute before the Civil Court and that such a suit was pending before the learned District Judge. The learned Counsel has further pointed out that as the respondent has purchased a part of the property in dispute, the appellants had filed an application for impleadment of the respondent which was objected to and, ultimately, such an application came to be rejected. The learned Counsel further submits that in any event, the predecessors-in-title of the respondent are parties to the said suit, along with the Government as, according to him, a part of the property was acquired by the Government. The learned Counsel has, thereafter, taken me through the Judgment of the Lower Appellate Court to point out that the findings arrived at by the learned Judge are on the basis of misconstruction of the documents, specially the document of Land Registration, as well as the Matriz record and, consequently, the Judgment of the learned Lower Appellate Court cannot be sustained. The learned Counsel has, thereafter, taken me through the contradictions in the findings of the learned Lower Appellate Court to point out that the learned Judge has erred in appreciating the evidence on record and misread the pleadings, as well as the deposition of the parties, to erroneously come to the conclusion that the appellants have failed to establish that they were owners in possession of the property in dispute. The learned Counsel further submits that the respondents were not in possession of the disputed property and, as such, the learned Lower Appellate Court erroneously allowed the appeal filed by the respondent. The learned Counsel has, thereafter, taken me through the sale deed dated 22/12/1994 exhibit- 36 to point out that on one side is the remaining portion of the Vendors which has not even been identified by the respondent. The learned Counsel has, thereafter, taken me through the substantial questions of law framed by this Court to point out that as the property claimed by the appellants is not the subject-matter of the property as described in the Land Registration Office, the inferences and the presumptions drawn by the learned Lower Appellate Court are totally erroneous and, as such, according to him, the substantial questions of law should be answered in favour of the appellants herein. The learned Counsel, therefore, submits that the appeal be allowed and the impugned judgment be quashed and set aside.