DUKLE CONSTRUCTIONS Vs. DOMINGOS ANTONIO MONTEIRO

JUDGEMENT

(1.) This appeal is preferred by the original plaintiffs whose application for injunction came to be rejected.

(2.) The facts giving rise to this appeal, are as follows The subject matter of the suit, is a property known as 'Verica de Codxel' at Caranzalem which is surveyed under Chalta No. 28 of P.T. Sheet No.150 of Panaji. The suit property originally belonged to one Filalete Minguel do Rosario Sebastioa de Castro Monteiro and his wife Dona Ana Maria Clothildes Rodrigues. This Filalete and his wife gifted the suit property to one Longuinos De Xavier Castro Monteiro by a Gift Deed dated 27.01.1958. However, the said Longuinos has now settled down in Indonesia since 1953 and since that year, the plaintiff No.4 along with his brother Paulo and their sister Ena Edviges De Castro Monteiro have been uninterrupted, peaceful and actual possession and enjoyment of the property. The City Survey Department held enquiry with respect to the possession and ownership and the Enquiry Officer has passed an order on 24.03.1984 confirming the possession of Ena and holding Longuinos De Xavier Castro Monteiro to be the owner. The plaintiff No.4 along with his brother Paulo and their sister Ena, had instituted a civil suit No.169/1993 against Longuinos for declaration of ownership and adverse possession. The said suit came to be decreed. Since Longuinos remained absent, the suit proceeded ex-parte. As a result of this, Paulo Antonio De Castro Monteiro and Ena Edviges De Castro Monteiro, were declared as the owners of the suit property. There are Coconut trees and mango trees in the said property. The plaintiff No.4 and his brother Paulo and their sister Ena have always been enjoying the produce of those trees. The plaintiff No.4 along with his brother Paulo, who died as a bachelor and sister Ena resided in the suit house, which is situated on the diversion road, which goes to Caranzalem- Dona Paula. The said suit property is also accessible from the backyard of the property of the plaintiff No.4 through the paddy fields. By a registered sale deed dated 29.09.2000, the plaintiff No.4 along with his wife Julia Filomena De Castro Monteiro, sold their undivided 1/3rd share in the suit property to the plaintiff Nos. 5 and 6. As per the understanding between the plaintiffs in the year 2001, the plaintiff Nos. 4, 5 and 6 and Ena had decided to sell the suit property to the plaintiff No.1 for its development. As a result, notice was published in the English Daily, 'The Navhind times' inviting the objections. The plaintiff Nos.1 to 3 thereafter, entered into an agreement for purchase and development of the suit property with the plaintiff No.4, his wife and sister Ena and also plaintiff Nos. 5 and 6. The agreement between the plaintiff No.1 and plaintiff Nos. 5 and 6, was executed on 08.05.2006 and the agreement between the plaintiff No.1 and the plaintiff No.4 was executed on 05.05.2006. It is alleged that thereafter the defendants malafidely published notice in daily Gomantak times, falsely claiming right to the suit property. The defendants alleged that they were using the suit property for parking their vehicles for last 40 years and they have acquired right in the suit property. It is the contention of the plaintiffs that the defendants have no right whatsoever in the suit property. They are unnecessarily obstructing the construction sought to be made by the plaintiffs and they should be restrained from doing so.

(3.) The defendants filed their reply to the temporary injunction application and contended that they have also filed two suits against the plaintiffs being civil suit No.14/2007 and 61/2007. The defendants have filed civil suit No.14/2007 for declaration that they have become the owners by adverse possession and civil suit No.61/2007 under Section 6 of the Specific Relief Act. It is the contention of the defendants that the application filed by the plaintiffs, is misconceived. They also deny that they have no right whatsoever in the suit property. The defendants contend that the decree obtained in civil suit No.169/1993, is void and is a fraud played on the Court. Further it is contended that the plaintiffs have acquired the alleged title through fraudulent means. Since according to the defendants, the matter is subjudice, the plaintiffs cannot interfere with the suit property.