BRUNO JOSE DIAS Vs. LAXMIKANT SUBRAY KUNDAIKAR

JUDGEMENT

(1.) THE petitioner (hereinafter referred to as "the plaintiff") had filed a suit for declaration and permanent injunction in which an application for temporary injunction was filed seeking to restrain the respondent (hereinafter referred to as "the defendant"), from entering and interfering with the suit property under survey No. 3/3, or disturbing possession of the said property, or plucking coconut trees, or removing fruits from the said trees or cutting trees/leaves/branches from the suit property and from doing any construction such as fencing, structures, or wall in the said property. This application for temporary injunction was dismissed by the Civil Judge, Senior Division, Panaji, vide order dated 13th August, 1998, on the ground that the Civil Court had no jurisdiction to grant declaration of tenancy sought by the plaintiff; that the Confraria has not been made party, nor any relief is sought for declaration of Sale Deed in favour of the defendant as null and void; that in view of the Sale Deed, the defendant being owner, is presumed to be in possession of the suit property under Survey No. 3/3; that even though in the plaint it is alleged that the defendant had unloaded two trucks of stones in the suit property, yet though the stones were not removed the plaintiff did not take any further steps and that the pleadings suggest that the defendant has been in possession of the suit property and not the plaintiff.

(2.) THIS order of the Civil Judge, Senior Division, was challenged before the District Court and the learned Additional District Judge, Panaji, vide judgment dated 22nd January, 1999, came to the conclusion that at this stage it was not necessary to go into the question of jurisdiction. The learned Additional District Judge came to the conclusion that though the plaintiff has established prima facie case with reference to the suit property, yet the balance of convenience was not in his favour since the plaintiff acquiesced in the act of possession of the defendant as back as 1992, against which no action was taken and that the plaintiff was not likely to suffer any irreparable loss.

(3.) THIS order of the learned Additional District Judge is the subject-matter of challenge in this Revision Application. Learned Advocate Shri Ashwin Bhobe argued for the plaintiff and learned Advocate Shri A. R. Kantak, argued for the defendant.