GANESH PANTA GAUNKAR Vs. SANTU SANVLO GAUNKAR

JUDGEMENT

(1.) The challenge in this petition under Article 227 of the Constitution of India is to the Judgment and Order dated 2/3/2015 passed by the learned District Judge-1, South Goa, Margao, in Misc. Civil Appeal No.133/2013. By the impugned Judgment, the learned District Judge while reversing the order passed by the learned trial court has granted injunction in favour of the respondents/plaintiffs. The injunction granted is restraining the petitioners or anybody on their behalf from planting any trees or doing any construction in any manner whatsoever in the suit property, bearing survey no.66/4 till the disposal of the suit.

(2.) On hearing the learned counsel for the parties and on perusal of the record it appears that the learned trial court has restricted the consideration to the issue of delay and laches. The learned trial court found that the alleged attempt to encroach was first noticed by the respondents/plaintiffs in the month of May 2012, while the suit came to be filed six months later, in the month of November 201 A bare perusal of the order passed by the learned trial court shows that the injunction came to be refused solely on this ground.

(3.) The learned District Judge has taken note of the fact that admittedly the parties are co-owners and it would not be just for any other co-owner to encroach upon the portion of another co-owner when there is no partition of the property by metes and bounds. This aspect has not at all been adverted to or considered by the learned trial court. Admittedly a separate suit for partition is pending before the competent Civil Court.