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1980 Supreme(Goa) 6
Goa High Court
K. M. MISHRA, ADDL. J.C.
Dilkush Dessai and another - Appellant
Versus
Don Bosco Farmers Rehabilitation Society, Sulcorna - Respondents
Civil Revn. Appln. No. 150 of 1979
Decided On : 9 May 1980
N.S. Verlekar, for Petitioners; S.K. Kakodkar with M.B. DCosta, for Respondent.
A court should consider the factors of irreparable loss, balance of convenience, and identity of the suit property before granting an injunction.
Headnote:
INJUNCTION - POSSESSION - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - IDENTITY OF SUIT PROPERTY - LOCUS STANDI - GRANT OF INTERIM RELIEF - PRINCIPLES.
Fact of the Case:
The plaintiff, Don Bosco Farmers Rehabilitation Society, filed a suit for permanent injunction and damages against the petitioners, claiming ownership and possession of a landed property known as Bindalechi-Golli or Bindalechem Molla or Borichem Molla, Ponsuletil Molla or Dentordochem Tollem, Kurpem Molla and Aforamento Molla, registered under Land Registration Office at Quepem under Nos. 4110, 4111, 4112, 4113 and 4114, in the name of Salesian priests. The petitioners claimed ownership and possession of the disputed property, alleging that it was part of properties enrolled in the Land Revenue Office under Nos. 4, 5 and 6, and that they had developed and possessed the property for many years.
Finding of the Court:
The trial court granted an ex parte temporary injunction in favor of the plaintiff, which was confirmed by the appellate court. The High Court, on revision, set aside the injunction, holding that the plaintiff had failed to establish irreparable loss or balance of convenience in its favor, and that there was a dispute regarding the identity of the suit property.
Issues: 1. Whether the plaintiff had locus standi to file the suit? 2. Whether the plaintiff had made out a prima facie case of title and possession? 3. Whether the plaintiff would suffer irreparable loss if the injunction was not issued? 4. Whether the balance of convenience lay in favor of the plaintiff? 5. Whether the identity of the suit property was in dispute?
Ratio Decidendi: 1. The High Court held that the plaintiff had locus standi to file the suit, as the connection between the plaintiff and Pia Sociedade Salesiana de Sao Joao de Bosco, the original owner of the properties, would be relevant only at a later stage of the suit to prove prescription alleged by the plaintiff. 2. The High Court held that the plaintiff had not made out a prima facie case of title and possession, as the evidence relied upon by the plaintiff was insufficient and there was a dispute regarding the identity of the suit property. 3. The High Court held that the plaintiff had failed to establish that it would suffer irreparable loss if the injunction was not issued. 4. The High Court held that the balance of convenience did not lie in favor of the plaintiff, as the construction of a temple on the suit property should not be permitted pending decision of the suit. 5. The High Court held that there was a dispute regarding the identity of the suit property, as the plaintiff and the petitioners claimed ownership of different properties.
Final Decision: The High Court allowed the revision, set aside the injunction, and directed the trial court to dispose of the suit as early as possible.
ORDER :- This revision is directed against an Order dated 26th September, 1979 passed by the District Judge in Civil Appeal No. 319/78. By the aforesaid order the appellate Court has confirmed the order dated 4-12-1978 passed by the Civil Judge, Senior Division, Quepem, making absolute the ex parte temporary injunction granted by him on 12-9-1978.
2. The suit was filed by the respondents (Don Bosco Farmers Rehabilitation Society through Fr. Olivia Miranda, Sulcorna, Taluka Quepem, a Society registered under the Societies Registration Act No. XXI of 1860), for permanent injunction and damages against the petitioners. According to the plaint case, certain landed properties known as Bindalechi-Golli or Bindalechem Molla or Borichem Molla, Ponsuletil Molla or Dentordochem Tollem, Kurpem Molla and Aforamento Molla stand registered in the Land Registration Office at Quepem under Nos. 4110, 4111, 4112, 4113 and 4114, in the name of Salesian priests. The aforesaid landed properties were recently surveyed by the Survey Department and one of the four plots has been assigned the present survey No. 53/1 and it stands recorded in the name of the plaintiff Society and that is the suit property. It is a mixed garden having extensive cultivation of guava trees, cashew trees, chicoo trees, etc. bounded in the North by a road, on the South by the property of the plaintiff Society bearing survey No. 52, on the West by the village Perla and on the East partly by the said road and partly by the plot bearing survey No. 52. The suit property has been in enjoyment and possession of the Salesian priests or the Society of Salesian Priests since 1948 and prior to that of the predecessors in title, peacefully, publicly and without interruption as their own and hence the plaintiff Society has acquired full title to the suit property by virtue of the law of prescription or adverse possession.
On 7th August, 1978 the petitioner No. 1 (defendant No. 1) informed Fr. Olivio Miranda that he would build a temple in the suit property. Fr. Miranda advised him to refrain from acting in that manner. When he found some labourers under the leadership of the petitioner No. 2 (defendant No. 2) engaged in digging the suit property he asked them to go away and they left the place. On 10th August, 1978, the petitioner No. 1 again threatened to trespass into the suit property. On these allegations the plaintiff Society brought the suit for issuance of permanent injunction restraining the petitioners from trespassing into the suit property and interfering in his possession over the said property. A sum of Rs. 1,000/- has also been claimed on account of damages with a prayer to grant a temporary injunction pending disposal of the suit.
3. On 12th September, 1978 the Civil Judge, Senior Division, Quepem granted an ex parte temporary injunction under Order 39, Rules 1 and 2 of the Civil Procedure Code. He called upon the defendants/petitioners to file their objection which was done by the defendant/petititioner No. 2 only. The efendant/petitioner No. 2 in asking the Court to vacate the ex parte temporary injunction has stated that the plaintiff has not made out any case entitling him to the reliefs in the suit. Fr. Miranda cannot represent the plaintiff or file the suit on behalf of the plaintiff Society. Further if the injunction is not vacated irreparable injury would be caused not only to him but to Gaonkars, Devidas Shetkars and Velipos, etc. of the village as also to the people at large of the Hindu community whose feelings would be hurt. On merits it has been stated that there exist properties known as Nomossa Nollcacodil Sorod and Doulacodil Chactam all situated at Datordem, enrolled in the Land Revenue Office under Nos. 4, 5 and 6, the first standing enrolled in the name of Dropadi Velpina and the last two in the name of Purso Gaonkar occupying a contiguous area whose boundaries are mentioned therein.
In the property Deulacodil Chactam there exists a temple of Go
