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Judgment
A.P. Lavande, J.—Heard Mr. Dukle, learned Counsel for the appellant, Mr. Sudesh Usgaonkar, learned Counsel for the respondent Nos. 1 to 8 and 19 to 27 and Mr. Sudin Usgaonkar, learned Counsel for the respondent Nos. 9 to 18. By this appeal, the appellant takes exception to the order dated 4th April, 2008 passed by the IInd Civil Judge, Senior Division, Margao in Special Civil Suit No. 15/2008 by which application for temporary injunction filed by the appellant has been dismissed.
The appellant is the original plaintiff in the above suit filed against the respondents / defendants seeking declaration and permanent injunction in respect of properties bearing Survey No. 349/1 and 358/19 situated at Canacona, Goa admeasuring about 2,78,000 square metres. Along with the suit, the plaintiff had filed an application seeking temporary injunction against the defendants from selling or creating any third party rights in respect of the suit properties. The application was contested by the defendants. Upon appreciation of the materials placed before the Court, the Trial Court, by the impugned order dismissed the application holding that the plaintiff has not been able to establish prima facie case in his favour and balance of convenience was also not in his favour. The Trial Court held that the plaintiff did not even prove the prima facie title to the suit property and, therefore, held that the plaintiff was not entitled to the temporary relief sought for.
Mr. Dukle, learned Counsel for the appellant, in support of the appeal, submitted that although the plaintiff has not been able to lead any documentary evidence to prove that he is co-owner of the suit property, the fact remains that the defendants / respondent Nos. 1 to 8 and 19 to 27, in their written statement, have taken the plea of adverse possession and, therefore, impliedly the defendants admit the title of the plaintiff. Placing reliance upon the judgment of Apex Court in Binapani Paul Vs. Pratima Ghosh and Others, , Mr. Dukle submitted that once a plea of adverse possession is taken by a party, that party impliedly accepts the title of opposite party and in view of the ratio laid down by the Apex Court in the said judgment, the plaintiff is entitled to the interim relief sought for. According to Mr.Dukle, the defendants have not proved any title to the suit property and since the defendants are intending to sell the property, the plaintiff is entitled to injunction sought for.
Per contra, Mr. Sudesh Usgaonkar, learned Counsel for the respondent Nos. 1 to 8 and 19 to 27 submitted that the plaintiff has not been able to establish even prima facie any title to the suit properties and, therefore, the question of granting any interim relief in his favour, does not arise. He invited my attention to the pleadings and more particularly the affidavit-in-rejoinder filed by the plaintiff which clearly discloses that the plaintiff, even prima facie, has not been able to establish his title to the suit properties. He, therefore, submitted that no interference is called for with the impugned order.
Mr. Sudin Usgaonkar, learned Counsel for the respondent Nos. 9 to 18, adopted the submissions made by Mr. Sudesh Usgaonkar, learned Counsel for the respondent Nos. 1 to 8 and 19 to 27.
Having considered the submissions made by learned Counsel for the parties and having perused the record, I am of the considered opinion that no case is made out by the appellant for interference with the impugned order. The learned Counsel for the petitioner / plaintiff has fairly conceded that at this stage, he has no documentary evidence to prove the title to the suit properties even prima facie. In so far as the submission made by Mr. Dukle that defendants/ respondents, in the written statement, have claimed adverse possession and, therefore, impliedly accepted the title of the plaintiff, is concerned, I find myself unable to place any reliance upon the said statement made in the written statements. Perusal of the entire written statement discloses that the defendants have denied the title of the plaintiff to the suit properties and have claimed title in themselves. In support of the claim of the adverse possession, the defendants have not furnished any details which are required to be given, in case the party wants to set up a case of adverse possession. Unless a party gives details regarding the time when the adverse claim was set up and against whom it was set up, a vague plea of adverse possession has no substance. Therefore, I find myself unable to agree with Mr. Dukle that on the sole ground that the defendants have claimed adverse possession in respect of the suit properties, the plaintiff is entitled for temporary injunction sought for. Therefore, the ratio laid down by the Apex Court in Binapani Paul''s case (supra) is not attracted in the present case. It is well settled by catena of decisions of the Apex Court that in order to succeed in an application for temporary injunction, three basic ingredients namely prima facie case, balance of convenience and irreparable loss or injury, have to be made out by the party and unless all the three ingredients are made out, a party is not entitled to the injunction. Having regard to this principles, I am of the considered opinion that no interference is called for in the present appeal.
Since Mr. Sudesh Usgaonkar, learned Counsel for the respondent Nos. 1 to 8 and 19 to 27 has stated that the respondents intend to sell the suit properties, it would be in the interest of justice, to direct the defendants to put transferee on notice about the pendency of the suit in question before execution of the sale deed and the defendants are directed to put the transferees on notice about the pendency of the suit before executing the sale deed. Further, the defendants or the transferees will not be entitled to claim any equity in their favour, in case the plaintiff ultimately succeeds in the suit. In other words, any transfer effected during the pendency of the suit, shall be subject to the result of the suit. This will sufficiently protect the interest of the plaintiff. The appeal is dismissed subject to the observations made and directions given above.