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Judgment
F. M. Reis, J.—Heard Shri Joseph Vaz, learned Counsel appearing for the Petitioners and Shri Nigel Da Costa Frais, learned Counsel appearing for the Respondent. The above Writ Petition challenges the Judgment passed by the learned District Judge-I, Mapusa, in Misc. Civil Appeal No. 172/2010, whereby the Appeal preferred by the Respondent challenging the Order dated 12.08.2010 passed by the learned Civil Judge, Junior Division, Mapusa, in Regular Civil Suit No. 117/2010 came to be allowed and the application for temporary injunction filed by the Petitioner came to be dismissed.
Briefly, the facts of the case are that there exists a property bearing survey No. 66/2 situated in Village of Saligao and which is surveyed in the Record of Rights of the said Village in the name of Manuel Salvador D'' Souza, who is the grandfather of the Petitioner No. 1. It is further their case that the house existing therein stands in the name of the Petitioner No. 1 and he has been in physical possession and in charge of the said house. It is further their case that the mother of the Petitioner No. 1 Olympia, was paying the house tax in respect of the house and that Manuel Salvador D'' Souza died in the year 1912 and his wife Mrs. Victoria died in the year 1952. It is further their case that the father of the Petitioner No. 1namely Bernard Caitano Francisco D'' Souza, expired on 22.04.1960. It is further the case of the Petitioners that they along with the other co-owners of the suit property and the house are in possession of the house existing therein. It is further their case that on 15.04.2010, when the attorney of the Petitioner No. 1 went to the suit property, he saw the Respondent with a labourer carrying out some activity in the suit house. It is further their case that on 19.04.2010, the said attorney noticed that the Respondent was attempting to trespass into the said property. It is further the contention of the Petitioners that the Respondent is in a habit of creating false documents in order to transfer the property in his name. Apprehending that the Respondent may interfere with the suit property, the Petitioners filed the suit praying, inter alia, for a permanent injunction to restrain the Respondent from interfering with the suit property. Pending the hearing of the said suit, an application for temporary injunction also came to be filed by the Petitioners.
The Respondents denied the claim put forward by the Petitioners and have stated that by an Agreement for Sale dated 31.10.2005, he had agreed to purchase the suit property along with the house existing therein from Caitano Manuel Cedric Salvador D'' Souza @ Manuel F. D'' Souza @ Manuel Salvador D'' Souza and that pursuant to the said Agreement, he has been in possession of the suit house existing therein. It is further his case that Regular Civil Suit No. 162/2009 has been filed by the Respondent for the specific performance of the said Agreement for Sale and that he has entered into the said Agreement in view of the fact that the name of the said Manuel Salvador D'' Souza was figuring in the Survey Records. It is further his case that as per the said Agreement, he has been in possession of the suit property. It is further his case that he has done all the repairs and maintenance of the suit house pursuant to the said Agreement and that the Petitioners have never done any such activities. The Respondent further contends that in view of the said Agreement for Sale, the Respondent is entitled to the possession of the suit house. The Respondent prayed, inter alia, that the application for temporary injunction deserves to be rejected.
The learned Trial Judge after hearing the parties and considering the material adduced by the Petitioners and the Respondent, came to the prima facie conclusion that the Petitioners have established their right to the suit property and for the reasons stated in the Order dated 12.08.2010, the learned Trial Judge granted the injunction in favour of the Petitioners.
Being aggrieved by the said Order, the Respondent preferred an Appeal before the learned Addl. District Judge, which came to be allowed by the impugned Judgment dated 19.10.2010. Being aggrieved by the said Judgment passed by the Lower Appellate Court, the Petitioners have preferred the present Petition.
Shri Joseph Vaz, learned Counsel appearing for the Petitioners, has assailed the impugned Order on the ground that the alleged Agreement relied upon by the Respondent is a fictitious document upon which no rights can flow in favour of the Respondent. Learned Counsel has pointed out that the suit property and the house existing therein, belongs to the father of the Petitioner No. 1 and upon his death, the right to the suit property devolved upon the Petitioners and his other sisters and one brother Manuel Fedrico D'' Souza. Learned Counsel further pointed out that the possession of the suit house was with the Petitioner No. 1 and though he is presently abroad on account of his professional work, nevertheless, he had an attorney residing in the vicinity of the suit property who was looking after the suit property on behalf of the Petitioner. Learned Counsel has taken me through the impugned Order and pointed out that the learned Judge has erroneously come to the conclusion that as per the said Agreement for Sale, the Respondent was in possession of the suit property. The learned Counsel further pointed out that on bare reading of the alleged Agreement itself discloses that such an Agreement has been executed in suspicious circumstances. Learned Counsel further pointed out that in the written statement filed by the Respondent, there is a specific averment that the said Manuel Fedrico D'' Souza, was residing in the suit house despite of the execution for the said Agreement for Sale. Learned Counsel further pointed out that it cannot be accepted that the said Manuel Fedrico D'' Souza, would give the keys of the suit house to the Respondent as sought to be contended by the said Respondent in the written statement. Learned Counsel further pointed out that there is sufficient material on record to the effect that the said Manuel Fedrico D'' Souza, was of ill health and that the Respondent purported to take advantage of such situation by entering into the alleged Agreement. Learned Counsel further disputes the execution of the said Agreement by the brother of the Petitioner No. 1 as, according to him, no such Agreement was executed by the said brother. Learned Counsel further pointed out that the alleged activities claimed to have been done to the said house by the Respondents are in fact carried out by the attorney at the instance of the Petitioner No. 1. Learned Counsel further pointed out that even assuming the Respondent is claiming right to possess the suit house in view of Section 53-A of the Transfer of Property Act as the alleged Agreement is not registered, no legal effects can accrue to the Petitioners on that count in view of Section 17(i) of the Registration Act. Learned Counsel further pointed out that the Lower Appellate Court has wrongly appreciated the evidence on record by allowing
On the other hand, Shri Nigel Da Costa Frais, learned Counsel appearing for the Respondent, has supported the impugned Judgment. Learned Counsel pointed out that though the evidence discloses that prima facie the said Manual Fedrico D'' Souza, is not the exclusive owner of the suit property and the suit house nevertheless considering the fact that the Respondent is in possession of the suit house, the question of granting of injunction as prayed for by the Petitioners does not arise. Learned Counsel has taken me through the Agreement executed by the said Manuel Fedrico D'' Souza and pointed out that there is a specific clause therein which discloses that the keys of the suit house were delivered to the Respondent. Learned Counsel has taken me also through the photographs on record and pointed out that there is sufficient evidence on record to establish that the repairs of the suit house were carried out by the Respondent. Learned Counsel further points out that considering that the Respondent is in possession of the suit house, the question of any injunction in favour of the Petitioners would not arise. Learned Counsel has further submitted that there is already a suit filed by the Respondent for specific performance of the said Agreement and, as such, the question of interfering with the impugned Order at this stage by the Court would not arise. The learned Counsel as such submits that the Petition deserves to be rejected.
Having heard the learned Counsel and on perusal of the record and on going through the Judgments passed by the Lower Appellate Court, I find that the learned Judge at para 19 has come to the conclusion that the suit property originally belonged to the grandfather of the Petitioner No. 1. The learned Judge has further considered the family tree and prima facie held that Manuel Fedrico D'' Souza, was the brother of the Petitioner No. 1. The learned Judge has further found that prima facie the said Manuel Fedrico D'' Souza can be the person who has signed the alleged Agreement dated 31.10.2005 who can be considered to be the brother of the Petitioner No. 1. The learned Judge has perused the alleged Agreement and pointed out that possession of the suit property was delivered to the Respondent. In view of the said findings, the learned Judge set aside the impugned Order.
On the basis of the material on record, it cannot be disputed that the learned Judge has prima facie accepted the case of the Petitioners that they are the co-owners of the suit property. It is also not in dispute that the alleged Agreement relied upon by the Respondent has not been executed either by the Petitioners nor the other co-owners nor any person on their behalf. Hence, prima facie, the alleged Agreement relied upon by the Respondent No. 1 agreeing to dispose the whole property and the house is null and void and cannot create any legal effects as against the Petitioners and the other co-owners of the suit property are concerned. In view of the provisions of Section 17 (1-A) of the Registration Act, the question of claiming any part performance u/s 53-A of the Transfer of Property Act without such agreement being registered would not arise. Prima facie, as such the Petitioners are the co-owners of the suit property and are as such entitled to the possession of the suit house. As such, the learned Judge was not justified to come to the conclusion that the Respondent was in possession of the suit property. Apart from that the learned Judge has also taken note of the fact that the electricity bills stands in the name of the Petitioner No. 1. Besides that, in the written statement filed by the Respondent, it was contended that despite of the possession having been given to the Respondent, the suit house was in occupation of the said Manuel Fedrico D'' Souza alongwith the Respondent which the Respondent herein prima facie has not established by any evidence on record. As such, the findings of the learned Judge to the effect that the Respondent is in possession of the suit house on the basis of the disputed Agreement dated 31.05.2005 cannot be sustained. But, however, the evidence discloses that in the written statement and the reply filed by the Respondent, it is alleged by the Respondent that he had carried out some construction work in the suit house. It is also not in dispute that the Petitioners were at the relevant time abroad. The fact that such work has been carried out has been strongly disputed by the Petitioners. It is alleged by the Petitioners that the Respondent has not carried out any such repairs as contended by the Respondent. But, however, the Respondent has produced some bills purported to have been in respect of repairs carried out by him for the suit house.
Be that as it may, considering that the relief of injunction is an equitable relief and taking note of the fact that the alleged Agreement relied upon by the Respondent cannot in any way create prima facie any right on the Respondent in respect of the suit property, I find it appropriate that the Petitioners should be directed to deposit a sum of Rs. 1,50,000/-in the Court before the learned Trial Judge, which shall be subject to further Orders to be passed at the time of the final disposal of the suit. The said amount shall be deposited by the Petitioner No. 1 within five weeks from today. In case such amount is deposited, the learned Judge shall invest the said amount in fixed deposit with any Nationalised Bank initially for a period of one year and the same shall be renewed from time to time till the disposal of the suit. Subject to the deposit of the said sum of Rs. 1,50,000/-, the impugned Judgment passed by the Lower Appellate Court deserves to be quashed and set aside.
At this stage, Shri Nigel Da Costa Frais, learned Counsel appearing for the Respondent, has pointed out that Regular Civil Suit No. 162/2009 is pending before the learned Civil Judge, Senior Division, Mapusa, for specific performance and that it would be appropriate that both the suits be tried by the same Court as expeditiously as possible. Learned Counsel further submits that the Petitioners should not create any third party rights during the pendency of the above suits
Shri J. Vaz, learned Counsel appearing for the Petitioners, has no objection and submits that the Petitioners will not create any third party rights in respect of the suit property during the pendency of the suit.
Considering the request of the learned Counsel, it is hereby directed that Regular Civil Suit No. 117/2010 is to be taken up by the learned Civil Judge, Senior Division, Mapusa along with Regular Civil Suit No. 162/2009 and both the suits shall be disposed of by the learned Judge as expeditiously as possible in any event preferable within a period of one year from the date of receipt of this Order. The learned Judge shall decide the suits on its own merits without being influenced with any prima facie findings of this Court whilst disposing the above Petition. In view of the above, I pass the following :
ORDER
(i) The impugned Order dated 19.10.2010 of learned District Judge, North Goa, Panaji, is quashed and set aside.
(ii) The statement of the learned Counsel appearing for the Petitioners that the Petitioners shall not create third party rights in respect of the suit property is accepted.
(iii) The Petitioners shall deposit the said sum of Rs. 1,50,000/-within five weeks from today without prejudice to his rights and contentions which shall be invested in Fixed Deposit of a Nationalised Bank by the learned Judge.
(iv) The learned Civil Judge, Junior Division, Mapusa, is directed to dispose of the said two suits Regular Civil Suit No. 162/2009 and Regular Civil Suit No. 117/2010, preferably within one year from receipt of this Order. The learned Judge shall decide the said suit on its own merits without being influenced with the prima facie findings herein.
(v) Rule is made absolute in the above terms.
(vi) Petition stands disposed of accordingly.