Advocates:
['ADV PRIYANKA KAMAT', '', 'ADV DEEPA SHIRGAONKAR', 'ADV DIKSHA ANIL FATERPEKAR', 'ADV VIDYA RAMESH NAIK', 'ADV ASHWIN D BHOBE', '', 'ADV SILAN BHANDARE', 'ADV KALPA DEVIDAS GOVENKAR', 'ADV FERNANDES ANNELISE']

1 1 WP 114 of 2020

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.114 OF 2020

NARAYAN KRISHNA NAIK

... Petitioner

V/S.

PRAKASH UTTAM NAIK

.....Respondent

Ms. Priyanka Kamat, Advocate for the petitioner.

Mr. A.D. Bhobe, Advocate for the respondent.

Coram:- SMT. BHARATI H. DANGRE, J.

Date :- 14^th January,2021

P.C.:

1.

By the present writ petition the petitioner is assailing the

judgment delivered by the District Judge-II, Panaji in an Misc. Civil

Appeal directed against an order dated 14/06/2017 passed by the

Civil Judge, Junior Division, Ponda in RCS No.150/2015/C. The

said order reject the application for temporary injunction on

13/09/2017 and being aggrieved the appeal has been instituted.

With the assistance of the learned Counsel for the

petitioner and the respondent I have perused the impugned

judgment which affirms the findings recorded by the learned Trial

Court.

2.

In the appeal the Appellate Court had determined the

issue as to whether the plaintiff had proved the existence of a prima

2 1 WP 114 of 2020

facie case in his favour and whether the non-grant of injunction

would result into irreparable loss and hardship. Deliberating the said

issue, the relevant facts were taken into consideration and which has

a bearing. In nutshell it revolves around the property bearing Survey

No.283/8 of Borim village and the plaintiff set its claim in the said

property as a Mundkar of the property. He rest his claim on the basis

of the order passed by the Mamlatdar where he has moved an

application seeking declaration to that effect and the Mamlatdar by

judgment and order dated 28/10/2014 issued a declaration in favour

of the plaintiff as Mundkar of the said house. He had preferred an

application before the Mamladar for purchase of the said house and

also claiming customary access to the public road. It is only when

there was an attempt on the part of the defendant to dispossess him,

he filed a civil suit.

3.

Both the Courts below have recorded that it is not in

dispute that the plaintiff was declared as a Mundkar by declaration

of the Mamlatdar. It was however alleged that the said declaration

was obtained by playing a fraud on the Mamlatdar Court and by

adopting a mode of misrepresentation. By recording of finding that

in the proceedings which were instituted before the Mamlatdar that

the two of the original owners were included as defendants, the one

3 1 WP 114 of 2020

of them Mr. Gurunath Janardhan Shenvi having been expired 40

years back and similarly Mr. Shantaram Borkar having been expired

18 years back. Attempts were made to serve the notice on defendant

No.2 but the address was found to be incorrect and he was never

served. Prima facie all these documents therefore according to the

Court raised a doubt about the plaintiff's case which recorded

finding in his favour that he is entitled for a declaration. Noting that

when the question comes to granting equitable relief of temporary

injunction, this fact could be looked into and since at the prima

facie stage it was recorded that the declaration in favour of the

plaintiff was doubtful and was backed by a misrepresentation, the

said could be dismissed. The learned Counsel for the petitioner has

vehemently submitted that the said order dated 28/10/2014 passed

by Mamlatdar is subjected to challenge by the defendants in the year

2016 before the Deputy Collector and the same is pending for

adjudication.

4.

This may be accepted as a fact but the concurrent

finding of the Courts below cannot be said to suffer from any

infirmity since while granting the equitable relief of temporary

injunction a prima facie case and balance of convenience are the