Shri Edward Jose Salvador Arez and his wife and Smt. Carmelina Fernandes e Arez vs Shri Manuel Francisco Gustavo Arez

N.A. Britto, J.—Heard learned Counsel on behalf of both the parties. Applicant no.1 herein is the defendant no.1 in Civil Suit No. 85/2004 and he is the brother of the plaintiff. Their father gifted the property which has house in favour of the plaintiff. By order dated 27.8.2008, learned Trial Court concluded that the defendants had disputed the validity of the Gift Deed and if the said Gift Deed was left out for consideration, it meant that the property was common belonging to the plaintiff and defendant no.1 and since one co-owner could not construct in common property without the consent of other, proceeded to injunct the defendants from doing any construction in the suit property. This Court by order dated 6.10.2008 found that there was no perversity in the finding given by the Trial Court and therefore proceeded to dismiss the appeal. A review application was filed against the said order but the same came to be dismissed on 4.3.2009 in the absence of the applicant no.1/defendant no.1 or his counsel observing that this Court has already come to the conclusion that there was no perversity in the findings of the Trial Court. Another review application came to be filed and dismissed on 24.3.2009 and this application has been filed for the review of the order dated 24.3.2009. Admittedly, after the death of the father of the plaintiff and defendant no.1, the property has not been divided. The property has been gifted by the plaintiff''s father to the plaintiff and as rightly pointed out by the Trial Court, even if the defendants succeed in challenging the validity of the said Gift Deed, the plaintiff would still remain a co-owner of the suit property and the defendants without the consent of the plaintiff cannot reconstruct the house in it, in which the defendant no.1 might be residing. Learned Advocate Mr. J. P. D''Souza contends that defendant no.1 is the elder son and has been residing in the suit house, which admittedly belongs to the plaintiff and defendant no.1. There cannot be any right to the defendant no.1 to reconstruct the same or carry out any further construction. There might have been a mistake in giving answers to the points raised at page 3 of the order dated 27.8.2008 of the learned Trial Court of which the applicant no.1/defendant no.1 cannot take advantage since the learned Trial Court after discussing the material has also come to the conclusion that all the principles for the grant of temporary injunction were in favour of the plaintiff.

There is absolutely no merit in the application for review and consequently the same is hereby dismissed with cost of Rs. 5000/- to be paid by the applicant no.1/defendant no.1 to the original plaintiff who is respondent in this application.