DATTARAM LAXIMAN GAWAS Vs. VITHOBA KESHAV GAWAS

JUDGEMENT

(1.) The above appeal came to be admitted by an order dtd. 14/7/2009 on the following substantial questions of law:-

(2.) Mr. Nigel Costa Frias, learned Counsel appearing for the appellants points out that the appellants would press only for the relief of permanent injunction in the suit and does not press for the relief of declaration therein. Mr. Nigel Costa Frias, learned Counsel submits that the appellants have purchased a specific share of the property pursuant to the sale deed dtd. 11/12/1959 whereby 7/126th part of the 2/3rd of the property which according to him corresponds to the property surveyed under survey nos. 195/4, 5, 6 and 7 and survey no.196/2 of village Latambarcem, Bicholim Taluka. The learned Counsel further points out that on the basis of the sale deed which is at Exh. PW1/B, the mother of the appellants and respondent no.1 along with four others have purchased the said share of the said property 4and as such, the appellants are entitled for the relief of permanent injunction against the respondents. The learned Counsel further points out that the respondent nos.5 to 8 have no right to the property and as such, the Courts below were not justified to refuse the relief of permanent injunction to the appellants. The learned Counsel further submits that the Lower Appellate Court has erroneously come to the conclusion that the relief of permanent injunction has become time barred, as it is well settled that cause of action for filing of a suit for injunction is a continues cause of action. The learned Counsel further submits that the survey record reflects the name of the appellants as well as the respondents and, as such, the findings of the Courts below that the appellants have not identified the property is totally erroneous. The learned Counsel further points out that the respondent nos. 5 to 8 have miserably failed to establish their claim that they have right to the suit property and, as such, the question of refusing the relief to the appellants against the respondent nos. 5 to 8 is totally unjustified. The learned Counsel has thereafter taken me through the findings of the learned Trial Judge in the judgment dtd. 30/4/2003 to point out that though the respondents have admitted that the appellants are co-owners of the property, the learned Trial Judge has erroneously come to the conclusion that the appellants have failed to establish their co-ownership right over the disputed property. The learned Counsel further submits that 7/126th part of 2/3rd of the property have been identified by the appellants and as such, the appellants was entitled for permanent injunction as prayed for. The 5learned Counsel has thereafter taken me through the judgment of the Lower Appellate Court to point out that the Lower Appellate Court has erroneously dismissed the appeal filed by the appellants.

(3.) Mr. A. Kansar, learned Counsel appearing for the respondents on the other hand has submitted that the respondent nos. 1 to 4 are co-owners with the appellants in respect of the property purchased, pursuant to the sale deed dtd. 11/12/1959 to the extent of 7/126th part of 2/3rd of the said property. The learned counsel further submits that this part portion of the property purchased by the appellants has not been identified and as such, the question of granting any relief of permanent injunction would not arise. The learned Counsel further points out that the respondent nos. 5 to 8 are also co-owners as they have a right to the remaining share of the larger property and, as such, the Courts below were justified to come to the conclusion that the appellants have failed to establish or identify the suit property. The learned Counsel further submits that unless and until the share of the purchased share by the appellants is clearly identified, the question of granting any permanent injunction against the respondents is not at all permissible. The learned Counsel further submits that the substantial question of law no. 2 framed by this Court is to be answered in favour of the respondents and as such, the appeal be dismissed. The learned Counsel further submits that the respondents have produced cogent evidence on record to establish their right over the suit property, and as such, the third substantial 6question of law is also to be answered in favour of the respondents.