SHAIKH CHIRAGUIDDIN Vs. KRISHNA BABLO GAONKAR

JUDGEMENT

(1.) THE appellant (plaintiff in the suit and hereinafter referred as plaintiff) had filed a suit for permanent injunction seeking to restrain the defendants/respondents (defendants in the suit and hereinafter referred as defendants) from interfering in the possession of the plaintiff in respect of the suit paddy fields surveyed under Nos. 15/7, 17/1 and 14/5 situated at Ambelim, Sattari, Goa. The case of the plaintiff, in brief, is that the said paddy fields were granted to one Arjun Yesso Gaonkar on or about 2-10-1899 by Alvara No. 199 as a provisional grant of aforamento by the then erstwhile Portuguese Government and upon his death the said Arjun Yesso Gaonkar had transferred the said grant in favour of his daughter Kashi Mahadev Siddhikarin and that thereafter, the said Kashi Mahadev Siddhikarin and her son Shankar Mahadev Siddikar by agreement of sale dated 8-8-1962 transferred all their rights and possession in the suit paddy fields in favour of the plaintiff for the sum of Rs. 3,000/-, out of which Rs. 2500/- was paid at the time of execution of the said agreement and the balance was agreed to be paid at the time of execution of the sale deed. The said Kashi and her son did not execute the sale deed on account of the fact that they had not acquired final title. In the survey records the name of the Government figured as co-occupant in respect of the said paddy fields as also that of Smt. Kashi Mahadev Siddhikarin as well as the name of the plaintiff who is said to be in actual possession of the said paddy fields from the year 1962. In the year 1971 one Govind Gaudo tried to disturb the possession of the plaintiff and the plaintiff filed a suit before the Mamlatdar, Sattari who restrained the said Govind Gaudo by his Order dated 19-4-1971 from disturbing the possession of the plaintiff. The plaintiff claims to be in continuous possession of the said paddy fields from the year 1962 and it is alleged that on 4-11-1985 defendants No. 1 to 4 interfered in Survey No. 14/5 with the possession of the plaintiff. The said defendants also attempted to disturb the possession of the plaintiff of the paddy fields under Survey Nos. 15/7 and 17/1. On these averments the plaintiff filed a suit for permanent injunction.

(2.) THE case of the defendants No. 1, 2 and 5 who contested the suit is that Arjun Yesso Gaonkar in whose favour the grant was made was the head of Hindu undivided family and that defendants No. 1 and 2 are successors in interest of the original members of the said family as a result of which they are co-owners of the paddy fields which were always enjoyed in common by all the co-owners. They also took the plea that the agreement between Kashi and the plaintiff is null and void since the said Kashi and her son Shankar could not have agreed to sell and transfer the paddy fields which were belonging to the joint family. It was also urged that the said agreement was null and void because no private sale of the lands granted under Alvara by the erstwhile Portuguese Government was permissible in law. The defendants had also filed counter claim seeking declaration that the said agreement of sale dated 8-8-62 was illegal, null and void and that the plaintiff be directed to deliver peaceful possession of the suit paddy fields to the defendants.

(3.) THE trial Court after assessing the evidence produced by the parties, dismissed the plaintiffs suit and counter claim of the defendants was allowed declaring that the agreement dated 8-8-62 executed by Kashi and her son Shankar in favour of the plaintiff is null and void and not binding on the said defendants. This order of the Trial Court was challenged before the District Court, Panaji, Goa. The District Court dismissed the appeal filed by the plaintiff as well as rejected the counter claim of the defendants.