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Judgment
Heard Mr. De Sa, learned Counsel for the petitioners and Mr. Menezes, learned Counsel for the respondents.
Rule. By consent heard forthwith.
By this petition, the petitioners challenge the order dated 17th April, 2010 passed by the District Judge, South Goa, Margao in Miscellaneous Civil Appeal No.56/2009 allowing the appeal preferred by Laurena Pedrina Colaco, (since deceased) the appellant in the said appeal against the order dated 9th September, 2009 passed by Additional Civil Judge, Senior Division, Margao in Civil Miscellaneous Application No.07/1998/I in Inventory Proceedings No.19097/79/I.
The petitioners herein filed an application bearing Civil Miscellaneous Application No.7/1998 in the above inventory proceedings seeking direction to deliver possession of the suit property to the applicant on the basis of the orders passed by the Additional District Judge, Margao in Miscellaneous Civil Appeal No.13/2001 confirming the order passed by the trial Court dated 31st August, 2000 in Civil Miscellaneous Application No.320/1998 in Regular Civil Suit no.174/1998. It was the case of the petitioners herein that the petitioners were in possession of the suit property and they were dispossessed pursuant to order passed by the Inventory Court to which they were not parties. According to the petitioners, the trial Court has dispossessed them in terms of the order passed by the Inventory Court. They were in possession of the suit property as is evident from the order passed by the District Court confirming the order dated 31st August, 2000 passed in C.M.A. No.320/1998 by the Civil Judge, J. D., Margao. The Inventory Court by order dated 9th September, 2009 directed restitution of the possession in favour of the petitioners herein in terms of order dated 2nd March, 2005 passed by IIIrd Additional District Court. However, in appeal preferred by the respondents, the lower appellate Court allowed the appeal and directed the suit property to be given to Basker Acharya.
Mr. Menezes, learned Counsel appearing for the petitioners submitted that in view of the findings given by the trial Court which has been confirmed by the lower appellate Court in Miscellaneous Civil Appeal No.13/2001, the impugned order is liable to be set aside and in no case, the Inventory Court could have put Basker Acharya, who claimed to be the tenant of the suit property, in possession in inventory proceedings. Learned Counsel further submitted that the order passed by the trial Court was a well reasoned order and as such, the lower appellate Court could not have interfered with the order thereby directing that the possession of the suit property to be handed over to Basker Acharya.
Mr. De Sa, learned Counsel for the respondents supported the impugned order.
Having heard the learned Counsel for the parties and having perused the record, I am of the considered opinion that the lower appellate Court could not have directed the possession of the suit property to be given to Basker Acharya since Basker Acharya was not a party and could have been party to inventory proceedings in which the application was filed by the present petitioners. Moreover, perusal of the record discloses that Miscellaneous Civil Appeal No.13/2001 preferred by the respondents against the order of injunction granted by the trial Court against Laurena Pedrina Colaco and Basker Acharya was dismissed by the lower appellate Court holding that the petitioners herein were in possession of the suit property and a clear finding was given in the order passed by the lower appellate Court dated 3rd August, 2004 that the petitioners herein, who were the plaintiffs in the suit, were in possession of the suit property.
In view of the order dated 3rd August, 2004 passed by the Additional District Judge, Margao in Miscellaneous Civil Appeal No.13/2001, the lower appellate Court could not have passed the order directing the possession of the suit property to be handed over to Basker Acharya inasmuch as the same would amount to varying or setting aside the order passed by the coordinate Judge. Admittedly the findings given by the Additional District Court in Miscellaneous Civil Appeal No.13/2001 have become final. On this ground alone, the impugned order passed by the lower appellate Court, is liable to be set aside. The trial Court, upon correct appreciation of the material placed on record, by order dated 9th September, 2009 granted restoration of the possession of the suit property in favour of the petitioners herein. There was absolutely no case made out by the respondents for interference with the impugned order and, therefore, the impugned order is hereby quashed and set aside and the order dated 9th September, 2009 passed by the Ist Additional Civil Judge, Senior Division, Margao is maintained. The petition stands allowed in aforesaid terms. However, the parties to bear their own costs.