Appeal From Order No. 63 of 2008

4th March, 2009

Petitioner Counsel: Mr. M. S. USGAONKAR,Mr. SUDESH USGAONKAR
Respondent Counsel: Mr. V. R. TAMBA

Cases Cited:
Sri Chand Vs. Inder, 1993 Supp (2) SCC 560 [Para 10]
Maharwal Khewaji Trust Vs. Baldev Dass, (2004)8 SCC 488 [Para 14]
A.C.C. Ltd. Vs. State, AIR 1981 Raj 133 [Para 15]
M/s. Fomento Restorts and Hotels Ltd. Vs. Amilcar Cunha Souza, 1999(1) GLT 156 [Para 15]
Nani Bala Vs. Charu Bala, AIR 1979 Cal 308 [Para 16]
State of Maharashtra Vs. Ramdas Shrinivas Nayak, AIR 1982 SC 1249 [Para 18]
Ambalal Maganlal Patel Vs. Indumati Narayan Mohile, AIR 1990 Bom. 187 [Para 18]

JUDGMENT

JUDGMENT :- 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.

4. The learned Judge, after hearing the parties, in fact, found as can be seen from the reasons given by her that the plaintiffs have made out a prima facie case although she answers such question of prima face case in the negative. She however, found that the application for injunction, was liable to be rejected because of the fact that there was delay on the part of the plaintiffs in approaching the Court and the Law does not help those, who sleep over their rights. Because of this findings, she rejected the application and the plaintiffs feel aggrieved.

5. I have heard the Counsel for the parties.

6. A few undisputed facts may be narrated as below :

The original owner of the suit property Filalete Minguel do Rosario Sebastioa de Castro Monteiro and his wife Dona both had gifted the property in favour of Longuinos De Xavier Castro Monteiro by Gift dated 27.01.1958. Even before the property was gifted to Longuinos De Xavier Castro Monteiro, he has been residing in Indonesia i.e. since 1953.

7. Now it is the contention of the plaintiffs that since then i.e. 1953, the plaintiff No.4 Mr. Jose Esbelto De Xavier De Castro Monteiro, Paulo Antonio De Castro Monteiro and Ena Edviges De Castro Monteiro were in uninterrupted possession. Further the plaintiffs have pleaded specifically that in the city survey held in 1984, the possession of Ena Edviges De Castro Monteiro was confirmed and the order to that effect, was passed on 24.03.1984. The extract of city survey enquiry register Nos.82 to 83, show that the name of Ena, is recorded in possessor's column and Longuinos De Xavier Castro Monteiro is held to be the holder of the title. Thus, what is confirmed, is the title of Longuinos De Xavier Castro Monteiro and possession of Ena Monteiro.

8. The next thing that needs to be noted here is that the plaintiffs' plead that the plaintiff No.4 Jose Monteiro, brother Paulo Monteiro and Ena Edviges instituted a special civil suit No.169/1993 against Longuinos De Xavier Castro Monteiro ( the real owner) for declaration of title on basis of adverse possession. The suit was decreed and they were declared as the owners. The defendants therein, had remained ex-parte. The decree has yet not been set aside. Thereafter, it is alleged that the plaintiff No.4 Jose and his wife Julia sold their 1/3rd share to the plaintiff Nos.5 and 6 i.e. Antonio Martins and Olga Martins. Thereafter, the plaintiffs submit that the plaintiff Nos.1 to 3 entered into two agreements of sale, one with the plaintiff No.4 and his wife and Ena Monteiro and the other with the plaintiff Nos.5 and 6. The plaintiffs claim that the public notice was also issued before agreement was entered into.

9. It is on the basis of the above facts that the plaintiff Nos.1 to 3 claim to be in possession and having a right to develop the suit property. The defendants' pleadings show that they had not claimed title over the property either on the basis of sale or any registered instrument. Their claim appears to be once again on adverse possession and, easementary right. Therefore, the defendants do not claim any title on the basis of any registered instrument or any Will.

10. Mr. Tamba, the learned Counsel for the respondent, submits that the plaintiffs have no title whatsoever and are as such, not entitled to an injunction. He submits that the plaintiffs in order to seek discretionary relief, should prove their rights in the suit property. The learned Counsel for the appellants/ plaintiffs, submits that the defendants do not have even a semblance of right in their favour. Shri. Tamba submits that the defendants' weakness cannot strengthen the plaintiffs' case. He relied on the decision of the Supreme Court in Sri Chand Vs. Inder and Others reported in 1993 Supp (2) SCC 560. This proposition of law is well settled and I need not to dilate any more on it.

11. However, the Court certainly will have to look into the question as to who has a better title and who is in possession of the suit property. If the facts as stated above, are considered, then, it is obvious that the plaintiff Nos.1 to 3 claim title through plaintiff Nos. 4 to 6 and Ena. The above facts also make it clear that the plaintiff Nos. 4 to 6 and Ena do not have registered instrument in their favour transferring the property in their favour. The original owner Longuinos De Xavier Castro Monteiro, is alive. So, there is no question of there being any Will. Thus, they claim their title on the basis of the decree passed in their favour in the civil suit No.169/1993.

12. The learned Counsel for the respondent, submits that this decree is void as no suit for declaration of title on the basis of adverse possession in maintainable. He submits that adverse possession is a shield and not sword. The decree has been passed, is a fact. The question is whether it is a void decree or not, which is nonest. To my mind, the decree is not void and the decree becomes void only when the decree is passed by the Court inherently lacking in jurisdiction. It must be a jurisdictional error. The jurisdictional error alone, renders the decree void and not an error of law. Passing of such a decree may, at the most, be an error of law. The Civil Court does have jurisdiction to pass the decree for declaration of ownership. In the circumstances, it cannot be said that the Civil Judge inherently lacked the jurisdiction to pass the decree in the matter. In the circumstances, the decree as passed, cannot be said to be void. The decree is, therefore, valid. It declares the plaintiff No.4, Ena and Paulo as the owners of the property. There is no alternative, therefore to hold these 3 persons to be the owners of the property on the basis of the decree. The plaintiffs have placed on record the sale deed dated 29.09.2000 executed by the plaintiff No.4 and his wife Julia in favour of the plaintiff Nos.5 and 6 in respect of their half share. Obviously, the plaintiff No.5 and his wife, who is the plaintiff No.6 become exclusive owners of the half share under this sale deed. The plaintiff No.5 and his wife, plaintiff No.6, have agreed to sell their share, which they purchased, to the plaintiff No.1. Second agreement of sale is executed by Ena and Jose i.e. plaintiff No.4 in favour of plaintiff No.1 to 3 on 05.05.2006. Thus, there are two agreements dated 08.05.2006 and 05.05.2006 in favour of the plaintiff Nos. 1 to 3 executed by the plaintiff Nos. 4 to 6 and Ena. Ena's name appears as an exclusive possessor of the property in the revenue record and she is also declared as an owner under the decree. In this suit, the proposed Vendor and Vendee both are plaintiffs . Thus, the persons apparently having the title, are plaintiffs in this suit.

13. If the defendants' contentions are seen, they too do not claim that there is any kind of conveyance in their favour. They too have filed a civil suit No.14/2007 claiming declaration that they have acquired the title by adverse possession. A person raises a plea of adverse possession only when he knows that there is no legal title in him. Filing of such suit by defendants/ respondents itself is an admission of a fact that there is no conveyance whatsoever in favour the defendants / respondents. They have not as yet been declared to be the owners under the adverse possession. The defendants not only filed a suit for declaration of ownership by adverse possession, but also filed a suit under Section 6 of the Specific Relief Act. The fact that the defendants filed suit under Section 6, once again establishes that they are not in possession of the suit property at all. The defendants, therefore, do not have even a semblance of right, title and interest in the suit property nor are they in possession. On the other hand, the plaintiffs had obtained a declaration and even Ena's name was recorded in the revenue record. Obviously, the plaintiffs have better title.

14. Mr. Tamba submits that the suits are pending between the parties and, therefore, the nature of the property should not be allowed to be changed. He submits that no irreparable loss will be caused to the plaintiffs if the nature is not allowed to be changed. He relied on a decision of the Supreme Court in Maharwal Khewaji Trust Vs. Baldev Dass reported in (2004)8 SCC 488. The facts of the reported case, are that the plaintiff had filed a suit for possession and sought injunction against the defendants to prohibit alienation of the property and the defendants sought to make construction. The Supreme Court in the facts and circumstances of that case, found that the status-quo should be maintained. Such observations were made by the Supreme Court in the facts and circumstances of that case. There is no ratio that the status-quo in all such cases has to be maintained. The above decision of the Supreme Court, therefore, has no bearing on the case at hand.

15. The next submission made by Mr. Tamba, is that there is delay on the part of the plaintiffs to come to the Court and, therefore, upon rule of equity, the Court should not exercise the discretion in favour of the plaintiffs. He relied on two decisions i.e. A.C.C. Ltd. Vs. State reported in AIR 1981 Rajasthan 133 and M/s. Fomento Resorts and Hotels Ltd. Vs. Dr. Amilcar Cunha Souza reported in 1999(1) G. L. T. 156. The discretion is not normally used in favour of a person, who does not promptly come to the Court and if there are latches on his part. Shri. Tamba submits that the suit is filed on 01/02/2008 and cause of action is of March, 2007. Shri. Tamba submits that the pleadings of the plaintiffs in para 39, do not make out a case of recurring cause of action. Shri. Usgaonkar, on the other hand, submits that there is no delay nor are there any latches on the part of the plaintiffs/ appellants. He submits that the defendants themselves had filed two suits against the plaintiffs and the plaintiffs have strongly contested both the suits and there was no serious threat to the plaintiffs' right. Since the matter was subjudice already, the plaintiffs did not feel it necessary to file the suit until the plaintiffs found that their possession was being frequently disturbed. He submits that thereafter, the suit was immediately filed. It appears that the defendants had filed an injunction application against the plaintiffs in his civil suit No.14/2007. Thus, the question of grant of injunction in favour of the defendants, was also pending before the Court. In such circumstances, it cannot be said that there were any latches. The learned Judge of the Trial Court, has certainly fallen in error in finding that there was delay as well as latches on the part of the plaintiffs. When there were repeated obstructions, the plaintiffs had moved the Court immediately and, therefore, the application could not have been rejected on that count.

16. Shri. Tamba again submitted before me that as far as irreparable loss is concerned, it would be defendant, who would suffer more if the plaintiffs are allowed to carry out construction. He submits that if the plaintiffs are restrained, no loss whatsoever, would cause to the plaintiffs. He had relied on a decision in Nani Bala Vs. Charu Bala reported in AIR 1979 Calcutta 308, wherein Their Lordships have observed as under :

"16. It follows from the above principles laid down by different authorities that the grant of injunction is discretionary with Court, the discretion has, however, to be exercised after due consideration of all surrounding circumstances. It will not be correct to say that whenever there is an invasion of a right, the Court should grant an injunction. "And the principle is well settled that, in granting or withholding an injunction, the Courts exercise a judicial discretion, and weigh the amount of substantial mischief done or threatened to the plaintiff, and compare with that which the injunction, if granted, would inflict upon the defendant" (Shamnugger Jute Factory Co. Vs. Ram Narain Chatterjee, ((1887)ILR 14 Cal 189).

17. At the risk of repetition, it may be stated that if the injunction be not granted, the plaintiffs will not suffer any loss or injury whatsoever, but the grant of an injunction would do definite harm to the defendants. After carefully considering the facts and circumstances of the case and the above principles of law, we are of the view that it is not a fit case where an injunction should be granted to the prejudice of the defendants. The learned Judge, in our opinion, was not justified in granting the injunction solely on the consideration of the plaintiffs' right to the fifteen inch spaces in the balconies. In our view, the learned Judge did not exercise his discretion in accordance with the principles of law discussed above."

17. Here in the case at hand, the plaintiffs have prima facie established their rights in the property while the defendants have none whatsoever. They were only parking their vehicles in the suit property as can be seen from the pleadings. If such unauthorized act is stopped by an order of injunction, it cannot be said that the defendants would suffer any loss. On the other hand, the plaintiffs have invested a large sum of money. They have possession of the property and they have at least semblance of title. The defendants have no right, title and interest whatsoever and have no right to object to the construction being made. In the circumstances, I find that the plaintiffs have made out a prima facie case. They would suffer irreparable loss. The plaintiffs being in possession of the property, the balance of convenience lies also in their favour.

18. Shri. Tamba has placed before me two decisions i.e. State of Maharashtra Vs. Ramdas Shrinivas Nayak reported in AIR 1982 SC 1249 and Ambalal Maganlal Patel Vs. Indumati Narayan Mohile reported in AIR1990 Bombay 187. These decisions have no bearing on the case at hand.

19. It is no doubt established law that the Appellate Court is not supposed to interfere with the discretion used by the Trial Court. In the instant case, the Trial Court itself had held that the plaintiffs have prima facie case, but rejected the application because of delay. On facts, I find that there was no deliberate delay or there were no latches and, therefore, I find no hesitation to interfere with the order of the Trial Court, rejecting the application. In the circumstances, the appeal is allowed. The defendants, their servants, agents are restrained from in any manner entering into the suit premises and interfering with the possession of the suit property until decision of suit. Costs shall be costs in cause.

Ordered accordingly.