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Judgment
A.P. Lavande, J.—Heard Mr. Sardessai for the appellant and Mr. Diniz for respondents No. 1(f), 1(g) and 2. By this second appeal, the appellant takes exception to the Judgment and Order dated 2nd August, 2008, passed by the District Judge -3, South Goa, Margao in Regular Civil Appeal No. 153/2002, by which the appeal preferred by the appellant against the Judgment and Decree dated 17th August, 2002, passed by the Civil Judge, Jr. Division, Vasco in Regular Civil Suit No. 78/89, has been dismissed.
Leopoldina Pereira e Mendonca, whose respondents No. 1a to 1g are the legal representatives, and respondent No. 2 herein, filed the above suit against the present appellant/defendant, seeking relief of declaration and permanent injunction. Plaintiff No. 1 sought a declaration in respect of two properties; whereas plaintiff No. 2 sought a declaration in respect of one property.
The suit was contested by the defendant who, inter alia, pleaded that the suit was bad for non-joinder of necessary parties.
Upon appreciation of the evidence led by the parties, the Trial Court decreed the suit. An appeal preferred to the District Court, Margao was also dismissed by the impugned Judgment and Decree.
Mr. Sardessai, learned Counsel for the appellant, in support of the appeal, urged that the suit for declaration filed by the plaintiffs, more particularly, plaintiff No. 2 was not maintainable since her husband was not made a party in the suit. He, therefore, submits that in the absence of other co-owner being a party to the suit, the suit for declaration filed by the plaintiffs was not maintainable. In support of his submission, Mr. Sardessai placed reliance upon a Judgment of this Court in the case of Yeshwant Siuram Porobo and ors. vs. Gangarama Loximona Shet Gaunkar and others., 1990(2) Goa L.T. 220.
Mr. Diniz, learned Counsel appearing for the respondents submitted that at no point of time, the defendant disclosed the names of the parties who, according to the defendant, were necessary parties and, as such, in view of the vague plea taken by the defendant, the appellant is not entitled to urge this ground for the first time in second appeal without laying foundation before both the Courts below. Mr. Diniz submitted that plaintiff No. 2 has claimed title by virtue of a sale deed dated 19.11.1982 and, as such, the declaration sought in prayer clause (b) of the plaint, was maintainable, more particularly having regard to the fact that at no point of time the defendant specifically took a stand that the suit was not maintainable in view of non-joinder of husband of plaintiff No. 2. In support of his submission, Mr. Diniz placed reliance upon a judgment of the Apex Court in Laxmishankar Harishankar Bhatt Vs. Yashram Vasta (dead) by L.Rs., .
Having considered the rival submissions and having perused the record, and the judgments relied upon by the learned Counsel for the parties, I find that no case has been made out for admission of this appeal. Mr. Diniz is right in contending that at no point of time the appellant-defendant took a specific plea that the suit was not maintainable for non-joinder of particular parties. In the absence of such a plea, the suit for declaration filed by the plaintiffs cannot be said to be non-maintainable. Moreover, perusal of the judgments and decrees passed by both the Courts below discloses that both the Courts below have held in favour of the plaintiffs, in so far as the title to the suit properties is concerned and consequently, the defendant is restrained from interfering with the suit properties. Both the Courts below have held against the defendant in so far as the title and possession of the suit properties is concerned. The decree passed by the Trial Court, which has been confirmed by the first Appellate Court in so far as injunction is concerned, deserves no interference. Therefore, in my considered opinion no case has been made out by the appellant for interference with the decree passed by the first Appellate Court, confirming the decree passed by the trial Court. The appeal does not raise any substantial question of law. Hence, the same stands dismissed. No order as to costs.