JOAQUIM GAMA Vs. CUSTODIO GAMA ALIAS KISTOD GAMA

JUDGEMENT

(1.) THIS is a revision application against the Order dated 30th April 1997 passed by the District Judge, South Goa, Margao in Miscellaneous Civil Appeal No. 24 of 1997. By the impugned Order the lower Appellate Court has allowed the appeal filed by the respondent herein against the Order of the trial Court dated 28th February, 1997 passed in Civil Miscellaneous Application No. 55/96 in Regular Civil Suit No. 22/96.

(2.) UPON hearing Shri D. Pangam the learned Advocate appearing for the petitioners and on perusal of the entire records placed before me, it is seen that the respondent herein filed a civil suit being Regular Civil Suit No. 22/96 in the Court of Civil Judge, Senior Division, Vasco for permanent injunction to restrain the appellants from interfering in any manner in the open space situated in the property Voll, bearing Survey No. 87/5 in the village of Cortalim and belonging to the respondent. It was the contention of the respondent that the petitioners upon trespass in the said open space of the suit property on 21st April, 1996 started digging a pit and that it was learnt by the respondent that the petitioners were planning to raise a fence around the said open space and to erect a pandal cum stage for sitting arrangement for the public gathering for the purpose of social, cultural and religious activities. On such apprehension, the said suit was filed alongwith an application for temporary injunction with a prayer for ex parte relief. On the other hand, it was the case of the petitioners that there is a cross in existence in the said open space/land and the annual feast is being celebrated by the villagers in the said open space on every first day of May of every year for the period of last 40 years and for that purpose there is an Association of Villagers called as "sociedade de Santa Kuris". It is the case of the petitioners that they have been celebrating this feast by erecting necessary pandal and making necessary arrangement for providing all the necessary facilities to the people gathering for such feast every year on 1st May without any obstruction or objection from the respondent. The trial Court on analysis of the entire materials on record found that the respondent had suppressed the fact of existence of the cross and celebration of its annual feast in the said open space by the villagers. The trial Court also found that the documentary evidence produced by the petitioners clearly disclose that such feast was being celebrated for the last about 40 years without any objection from the respondent. Moreover, the trial Court found that there was no dispute as far as ownership of the land was concerned and that it belonged to the respondent. The trial Court, therefore, partly allowed the application and the petitioners and their agents were restrained from constructing any permanent structure in the open space. As far as other reliefs were concerned, the same were rejected by the said Order dated 28th February, 1997. The respondent herein preferred an appeal being Miscellaneous Civil Appeal No. 24/97 before the District Judge and the same was heard and disposed of by the impugned Order. The lower Appellate Court on the ground that the possession and enjoyment of the open space by the respondent being not disputed and in view of the fact that the entries in the record of right disclose the property to be in occupation of the respondent, held that petitioners have not been able to produce any cogent evidence to rebut the presumption arising from the said entry in the record of rights in respect of the suit property. Simultaneously, the District Court also observed that the respondent had admitted that he had allowed the villagers to offer prayers to the Holy Cross existing in the said suit open space and to celebrate the annual feast and therefore, the lower Appellate Court while allowing the appeal, confirmed the relief of temporary injunction granted by the trial Court as well as further restrained the petitioners from erecting even pandal or stage in the suit open space but permitted them to arrange the chairs in the open space only for the feast for the year 1997.

(3.) INDEED as rightly submitted by the learned Advocate for the petitioners the suppression of the relevant facts regarding the existence of the cross and annual celebration of feast on every 1st of May by the petitioners at the time of filing of the suit was itself sufficient for denial of equitable relief to the respondent. Moreover the petitioners have fairly conceded that the property belongs to the respondent though the open space therein has been annually used for the purpose of celebration of the feast by the villagers and for that purpose they have formed an Association called Sociedade de Santa Kuris. The petitioners have also produced documentary evidence to show that such Association has been celebrating such a feast every year on 1st May without any obstruction and or disturbance. It is pertinent to note that both the courts below have observed that the respondent in his rejoinder has admitted the fact about the existence of cross in the open space and the celebration of the annual feast on 1st May every year in the said open space in the suit property. The only contention that was sought to be raised by the respondent was that the same was being done with permission of the respondent. This stand is apparently afterthought as is evident from the fact that the respondent while approaching the Court did not disclose even the fact of existence of the cross in the suit property and the celebration of said feast every year.