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Judgment
F. M. Reis, J
Heard Shri Kamat, learned Counsel appearing for the Appellant, Shri AO-6-12 M. B. D'' Costa, learned Senior Advocate appearing for Respondent no. 1 and Shri J. E. Coelho Pereira, learned Senior Advocate appearing for the Respondent no.2. Admit. Heard forthwith with the consent on the learned Counsel appearing for the respective parties. Learned Counsel appearing for the Respondents waive service.
The above Appeal challenges the Order dated 16.09.2011 passed by the learned Civil Judge, Senior Division, at Mapusa, in Special Civil Suit no. 10/11/A, whereby the application for temporary injunction filed by the Respondent no.1 against the Appellant and the Respondent no. 2 was partly allowed and the Appellant was directed to maintain status quo in respect of the suit property till the disposal of the suit and the Respondent no. 2 was directed to maintain status quo in respect of the remaining suit properties.
During the course of the hearing of the respective parties, it is not in dispute that the suit properties wherein the Appellant has been directed to maintain status quo are the properties which are surveyed under no. 135/10 and 331/6 situated at Village Saligao which have been purchased by the Appellant pursuant to two Sale Deeds both dated 21.05.2009. The Order of status quo granted against the Respondent no. 2 are in respect of the other remaining suit properties.
Upon hearing the learned Counsel appearing for the respective parties, it is brought to my notice that the subject matter of the properties which have been purchased by the Appellant by the said two Sale Deeds dated 21.05.2009 were also subject matter of the dispute raised by he Respondent no. 1 in Writ Petition no. 510/2011 which came to be disposed of by this Court on 24.11.2011. Whilst disposing of the said Writ Petition filed by the Respondent no.1, this Court has, inter alia, directed the Respondent no. 2 to pay the interest accrued on the consideration received by the Respondent no. 2 from 01.06.2009 on account of the usufruct right of the Respondent no.1 over the suit property. It is submitted by learned Senior Counsel appearing for the Respondent no. 2 that in accordance with the said Order, the amount has already been deposited in the Inventory Court.
Considering that the Respondent no. 1 only has the usufructory right in the said properties, this Court has already protected her interest whilst disposing of the said Writ Petition. As such, as the parties do not dispute that the subject matter of the properties in the said Writ Petition and the properties in the present proceedings are the same, the question of granting any injunction as directed against the Appellant in the impugned Order does not arise. But, however, as far as the injunction granted against the Respondent no. 2, the same shall continue to be in operation in respect of the other suit properties as the Respondent no. 2 has not raised any challenge to that effect nor the said other suit properties were the subject matter of the said Writ Petition.
Shri M. B. D'' Costa, learned Senior Counsel appearing for the Respondent no.1, has further raised the contention that according to the Respondent no.1, the Sale Deeds executed in favour of the Appellant itself is null and void as, according to him, such transaction has been executed contrary to the regulations 152 of the Statutes of the Confrarias read with resolutions passed by the Confraria. Learned Senior Counsel further pointed out that as the Sale Deed itself is null and void, the question of allowing the Appellant to change the status quo would not arise.
On the other hand, Shri Kamat, learned Counsel appearing for the Appellant has pointed out that such contention has not been raised by the Respondent no.1 in the plaint. Shri J. E. Coelho Pereira, learned Senior Counsel, also pointed out that such dispute was not raised by the Respondent no.1 before the Court below. Considering that there is no foundation on such submissions as sought to be raised by Shri D'' Costa, learned Senior Counsel appearing for the Respondent no.1, I find that the said contention cannot be considered by this Court in the above Appeal. But, however, the Respondent no.1, if so advised, is allowed to raise such contentions in accordance with law.
In view of the above, I find that the learned Judge was not justified to pass the impugned Order directing to maintain status quo in respect of the properties sold by Sale Deeds dated 21.05.2009 for the aforesaid reasons. In view of the above, I pass the following :
ORDER
(i) The Appeal is partly allowed.
(ii) The impugned Order dated 16.09.2011 passed by the learned Civil Judge, Senior Division, Mapusa, to the extent that it directs to maintain status quo in respect of the properties purchased by two Sale Deeds dated 21.05.2009, is quashed and set aside.
(iii) The Appeal stands disposed of accordingly with no Order as to costs