Shri Armando Pereira and Another vs Shri Jose Sebastiao Pereira and Others

R.C. Chavan, J.—This petition was circulated for admission today. Adv. Sharma waives service for the respondent Nos. 1 to 5 and 11 to 13. Advocate Singh waives service for the respondent Nos. 6 to 10. By consent, the petition was taken up for final hearing at the admission stage. The petitioners claimed that suit property was purchased by one Paulina D''Souza and petitioner No. 1 Armando in the name of respondent No. 1 Jose Sebastiao Perreira and Paulina. Petitioner No. 1 then entered in oral partnership with said Paulina and some construction was raised on the suit property. A suit had been filed on behalf of the heirs of Paulina against the petitioner as well as respondent No. 1 Jose and others, wherein respondent No. 1 Jose had admitted that property had been purchased by the petitioner in his name. However, Jose started obstructing petitioner''s possession and sought to remove a shed for raising some construction, after obtaining permission from the Municipal authorities, allegedly by making misrepresentations. The petitioner, therefore, approached the Civil Court by filing suit and prayed for temporary injunction to restrain demolition of structures and carrying out new construction during the pendency of the suit. The learned Trial Judge granted temporary injunction. Jose and others preferred an appeal, which was allowed by the learned District Judge-I, who vacated the injunction granted by the Trial Court. Aggrieved thereby, the plaintiffs have filed this petition.

I have heard the learned Counsel for the petitioners and respondents. The objection of the learned Counsel for the petitioners to the approach of the learned District Judge, need not be dealt with in view of the facts, which have been unfolded in the course of the argument. There can be no doubt that an Appellate Judge should be slow in interfering with discretionary relief granted by the Trial Court. All the same, the learned District Judge, possibly had a justification for interference in this matter in the light of facts unfolded. There is no dispute that the property was purchased in the name of respondent No. 1 Jose. Whether the petitioner No. 1 had purchased the property with his own funds or whether there was any contribution from others, will have to await decision of the Trial Court. The petitioner No. 1''s contention was that he had been dealing with the property as owner thereof all along and, therefore, in fact respondent No. 1 Jose had no right to enter the property or dabble with it, even though he may have been holder of title in respect of the property.

This contention is not on a solid foundation, particularly because of a power of attorney, which was fairly made available for my perusal by the learned Counsel for the petitioners. This power of attorney is stated to have been filed in the trial Court. This document dated 16.7.71 executed by Jose Sebastio Perreira, respondent No. 1, begins with claim that Jose was one of the co-joint owner of the property. It then recites that " and whereas a building has been constructed, on the said plot of land, which is jointly owned by Smt. Paulina D''Souza and Shri Armando Perriera;." Now, this recital would show that the plaintiff may have a very good claim to the building, which has been constructed on the plot. It does not show that the plot of land itself is jointly owned by Paulina and Armando. This is the first impression that can be gathered by reading this power of attorney. The parties may have to tender evidence on the interpretation of this document as well at the trial.

Petitioner''s reliance on his dealing with the property all along with municipal and other authorities duly gets explained by this power of attorney, which authorised him to do so. This debunks petitioner No. 1''s claim to have been dealing with the property in his own right. Number of leave and licence agreements and lease deeds on which petitioners sought to rely (at pages 83 to 98 of the compilation) too are unhelpful, first, because of the power of attorney, and secondly, because the agreements do not describe petitioner No. 1 as the owner of entire property, but of specific shops/tenements.

Apart from this, Dr. Sharma, learned Counsel for the respondent Nos. 1 to 5 and 11 to 13 drew my attention to the recitals in paragraph 14H of the plaint filed by the petitioners. The plaintiff claimed that "the power of attorney was never misused or abused at any point," till it was revoked on 10.12.2005. This would make the case of the plaintiff that he was dealing with the property all along as owner thereof doubtful.

Relying on judgment in Dalpat Kumar and another Vs. Prahlad Singh and others, , the learned Counsel for the petitioners submitted that requirement to make out prima facie case need not be confused with requirement to prove prima facie title. There can no doubt that a party has to make out a prima facie case, which it may make out, even without a title. A trespasser in settled possession, for instance, could seek Court''s protection from being high handedly removed. But in this case, petitioner No. 1 not only claimed title in himself, but negatived title of respondent No. 1, though the title document is in the name of respondent No. 1, and petitioners themselves relied on a power of attorney executed by respondent No. 1 way back in 1971.

In this view of the matter, reliance by the Trial Judge on an admission by the respondent No. 1 in written statement filed in Civil Suit No. 140/1992 filed by Paulina''s heirs, in which petitioner No. 1 as well as respondent No. 1 were arrayed as defendants, would not have been conclusive of the matter. In any case, it is not disputed that rightly or wrongly, the admission has been withdrawn by an amendment. In the face of admission by the petitioner himself that the sale deed was obtained in the name of the respondent No. 1, and reliance on the power of attorney, it would not be open for the petitioners to claim, at least prima facie, that petitioner No. 1 has been dealing with the property as owner thereof, and as corollary, it would follow that respondent No. 1 could not have been called rank trespasser, who could be prevented by petitioners, claiming to be persons in settled possession, from interfering with the property. In this view of the matter, the impugned order does not call for any interference in exercise of writ jurisdiction, as it does not smack of any perversity or non-application of mind or drawing untenable conclusions. The petition is, therefore, dismissed.