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IN THE HIGH COURT OF BOMBAY AT GOA
C. V. BHADANG, J.
Mr. Jayprakabh Karekar, son of Ramnath Karekar – Petitioner
Versus
Smt. Laxmi Vaman Raut and ors. – Respondents
Writ Petition No. 1188 of 2018
Decided On : 27-04-2020
Constitution of India, 1950 - Articles 227 and 953 - Land Revenue Code - Section 105 - Possession Of Suit Property - It is submitted that finding by appellate court that respondents have prima facie established their ownership and possession over suit property is patently erroneous and perverse - It is submitted that documents on which reliance is placed by plaintiffs cannot be said to be title documents and cannot outweigh title documents of petitioner - It is submitted that entire case of petitioner is based on name of property - It is submitted on basis of rejoinder filed on behalf of petitioner that there are several other survey numbers as set out in rejoinder - It is submitted that in any case local name of property cannot override effect of title documents which alone have to prevail - Learned Counsel for petitioner has then referred to judgment and order passed by learned district judge in regular civil appeal - It is submitted that claim of respondents that property described corresponds to survey and also corresponds to old cadastral survey has been discarded - It is submitted that this has not at all been considered by learned district judge which shows non application of mind - Lastly it is submitted that exercise to compare boundaries and to find some alleged discrepancies is not sustainable - Held, It cannot be accepted that reference to defendant is a typographical error as claimed on behalf of respondents - It can thus be seen that prima facie finding as to alleged settled possession of respondents over suit property as recorded by learned appellate court is based on erroneous assumption that petitioner has not disputed same - This in my considered opinion clearly shows non application of mind by learned appellate court while recording an important finding having a bearing on grant or otherwise of relief of temporary injunction - Appellate Court has held that judgments relied on by petitioner would not apply as petitioner has failed to establish prima facie case which finding as noticed earlier is based on erroneous assumption that possession of respondents is not disputed by petitioner - I have extensively set out other rival submissions made on behalf of parties which arose in matter - I find that all these contentions were required to be dealt with by learned appellate court in its judgment - Even assuming that an appeal is an appeal on principle appellate court is expected to closely consider rival pleadings of parties in context of finding recorded by learned trial court and settled principles as to grant of temporary injunction - Petition is allowed.
JUDGMENT :
Rule made returnable forthwith. The learned Counsel for the respective respondents waive service. Heard finally by consent of parties.
2. The challenge in this Petition under Article 227 of the Constitution of India, is to the judgment and order dated 17.11.2018 passed by the learned District Judge at Mapusa in Miscellaneous Civil Appeal No. 31/2018 thereby confirming the order dated 20.02.2018 passed by the learned Civil Judge Junior Division at Bicholim in Regular Civil Suit No. 62/2013. By the said order, an application Exhibit D-24 for temporary injunction filed by the petitioner, has been dismissed.
3. The brief facts necessary for the disposal of the Petition may be stated thus:
The petitioner is the defendant no. 27 in the aforesaid suit pending before the Trial Court. That suit is filed by respondent nos. 1 to 8 (plaintiffs) against the petitioner (defendant no. 27) and the respondent nos. 9 to 39. That suit is filed for declaration, cancellation of sale deed and permanent injunction. The subject matter of dispute is property bearing survey nos. 212/3, 212/2 (part) and 213/0 of village Sal, admeasuring 73,936 square metres, which is locally known as “Polsocho Sorvo” or “Firangeche Gulav”, which is more specifically described in plaint para no 1. According to the plaintiffs, the said property corresponds to old cadastral survey no. 351. The plaintiffs are the successors of Gopal Shiva Raut. The case made out in the plaint is that the said property was owned by Gopal Shiva Raut. The said property was mortgaged by Gopal Shiva Raut alongwith his wife Gopiki and others by a Deed of Usury Mortgage and Consignment dated 21.5.1929. However, the possession of the said property continued with Gopal Raut. The said mortgage was released by Gopal Raut by a public deed dated 02.02.1930 upon payment of the entire debt. The plaintiffs have also placed reliance on the proceeding in summary suit filed by one Narayan Soma Raut against Rama Chandru Raut and Krishna Chandru Raut in the year 1929, in which, it is claimed, that the heirs of late Chandru, admitted the ownership of Gopal Raut over the suit property. Reliance is also placed on criminal proceedings filed in respect of the suit property by Gopal Shiva Raut in the year 1929 against Narayan Soma Raut and by one Krishna Chandru Raut in the year 1956 against Vaman Gopal Raut in order to claim that Gopal Raut was the owner in possession of the said property.
4. It is the material case made out that in February/ March 2013, the plaintiff nos. 2 and 8 learnt that a police complaint has been filed against them by the petitioner alleging illegal trespass by them in the said property. The plaintiffs thereafter obtained Form No. I and XIV of the said property and noticed that the said property has been mutated in the name of the petitioner on the basis of a sale deed dated 22.8.1994 executed by Soma Dattaram Raut and Ramabai Soma Raut in favour of Mangala Karekar defendant no. 26, who is the mother of the petitioner and Inventory Proceeding No. 42/2003 decided on 30.11.2006. The plaintiffs also found that the mutation entries nos. 17774, 17775 and 17777 were accordingly recorded. The plaintiffs obtained the certified copies of the sale deed as well as the mutation entries. The plaintiffs found that the description no. 3325 given in the sale deed is not relating to the suit property. In other words it is contended that the petitioner or the defendant nos. 26 to 32 cannot claim any right, title or interest in respect of the said property on the basis of the said sale deed. It is in these circumstances that the suit came to be filed for cancellation of the said sale deed to the extent it relates to the suit property (in as much as the sale deed also includes property survey nos. 214/1 and 214/2 apart from the suit property) and other consequential reliefs.
5. The defendant no. 1, who is the wife of Soma Dattaram Raut and the defendant nos. 2 to 20 and 24, who are the legal heirs claimed t
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