JUDGMENT - T.K. CHANDRASHEKHARA DAS, J. :---Original defendants Nos. 1 to 9 in Special Civil Suit No. 143/92 on the file of Civil Judge, Senior Division, Vasco-da-Gama, filed Appeal No. 75/93 (the original defendant No. 10 being their mother since died). Defendant No. 11 in the said suit filed Appeal No. 80/93. The appellants in both the appeals are challenging the order passed by the learned Civil Judge, Senior Division, Vasco-da-Gama, in Civil Miscellaneous Application No. 254/93 dated 25-5-1993. Since these two appeals arise out of a common order, I propose to dispose of these two appeals by this common judgment. 2.The Special Civil Suit No. 143/92 was filed by the Comunidade of Chicolna, through its Attorney, for the reliefs of granting the declaration of title of the suit property and recovery of possession thereof. It also contained prayers for a declaration of annulling a sale deed executed by the defendants Nos. 1 to 10 in favour of defendant No. 11 and also cancellation of the mortgage alleged to have been executed by the defendant No. 11 in favour of defendant No. 12 for a loan of Rs. 30,00,000/-. The property in dispute is measuring about 1,23,150 square metres. It is alleged that there are properties belonging to defendants Nos. 1 to 10 lying contiguous to the suit property. Going by the allegations in the plaint and the written statement, it can be seen that the real dispute between the parties is with regard to the identification of boundaries of their properties. In the suit the respondent filed the aforesaid Civil Miscellaneous Application No. 254/92 for the following interim reliefs : (i) A temporary injunction granted ex-parte restraining the defendants Nos. 11, their contractors, agents, servants or members from in any manner interfering, developing or doing anything in or respect of the suit property bearing Survey No. 7/2 of Chicolna Village, Mormugao Taluka, pending the hearing and final disposal of the suit. 11, their contractors, agents, servants or members from in any manner interfering, developing or doing anything in or respect of the suit property bearing Survey No. 7/2 of Chicolna Village, Mormugao Taluka, pending the hearing and final disposal of the suit. (ii) For an order for preservation of the suit property bearing survey No.7/2 and 4/2 of Chicolna Village Mormugao Taluka, without altering its nature and further for appointment of a Government Head Surveyor as Commissioner authorising him to enter upon into the suit property to inspect the same, carry out survey and record his observation so as to verify whether the suit property Survey No. 7/2 and 4/2 of Chicolna Village form an integral part of plaintiffs property known as Lote No. XVII and Lote No. XVIII in terms of the old cadastral plan drawn by the Portuguese Government. The two prayers contained in the civil miscellaneous application have been granted by the Court in the order under appeal. These interim reliefs sought were granted by the Court below on the basis that it finds a prima facie case and the balance of convenience in favour of the plaintiff.Therefore, I am called upon to examine these findings of the Court below on the basis of the materials available before the Court. The Court below, of course, has gone in detail through the materials produced before it by either side. The main document relied upon by the plaintiff in order to prove a prima facie case is a plan of Tombo at Exhibit X-1 and also Exhibit P which show the position of the new survey in relation to the Tombo plan, whereas the dendants have produced the Matriz No. 77 having registration No. 2648. They have also produced an order passed by the Mamlatdar of Record of Rights dated 19-3-1976 under the provisions of the Civil Code. Both the parties contested the veracity and reliability of these documents produced by them. The plaintiff contended that the Matriz No. 77 does not tally with the suit property and therefore it cannot be relied upon. As regards the order of Mamlatdar of Record of Rights, the Court below finds that it is not binding on plaintiff as it was passed without hearing the Comunidade. The defendants, on the other hand, submit that the Tombo plan is a private plan which cannot be relied upon to prove title of the plaintiff. As regards the order of Mamlatdar of Record of Rights, the Court below finds that it is not binding on plaintiff as it was passed without hearing the Comunidade. The defendants, on the other hand, submit that the Tombo plan is a private plan which cannot be relied upon to prove title of the plaintiff. They cited various provisions of the Code of Comunidades. The witnesses were also examined and a surveyor was appointed and he has prepared the plan. Regarding the reliability on the certificate issued by the Mamlatdar of Record of Rights, the Court below observed thus :- "Learned Advocate Shri Gama submits that, the said defendant No. 1 to 9 played a trick by serving a notice to a stranger namely the said Gregorio Goes. He further submits that under the law the notice ought to have been sent through the Administrator, who is the only person and who is in position to know who are the office bearers of the Comunidade. Learned Advocate Shri Gilman Fernandes, on behalf of the defendant No. 11 submits, that the plaintiff has not filed any affidavit of any of the said three office bearers of the plaintiff. He further submits that the said Gregorio Goes is still living and the plaintiff ought to have filed at least his affidavit. In my opinion, there is no merit in these submissions of learned Advocate Shri G. Fernandes. The plaintiff has prima facie proved by virtue of the said certificate, who were the office bearers of the plaintiff at the relevant time and admittedly the said notice in form No. VI is not served on any of the office bearers and, therefore, the said order of the Mamlatdar of record of rights would not be binding upon the plaintiff and this position further strenghten the prima facie case required to be made by the plaintiff at this stage. The presumption under section 114(c) that official acts have been regularly performed will apply with greater force as far as the survey of Tombo was concerned, than to the order of the Mamlatdar of Record of Rights which was made without due notice to the plaintiff." 3.I do not think that the observation by the Court below regarding the reliability of the documents produced by the defendants is proper and legal. The learned Civil Judge, Senior Division was discussing about the presumption available under section 114(c) of the Evidence Act to the Tombo plan. I find no reason why the said presumption equally available to an order passed by the Mamlatdar under a statutory provision unless and until it is strongly rebutted by other cogent evidence. At this stage, however, it is not proper on the part of the Court below to discard an order passed by a statutory authority against another document which was prepared by the plaintiff for the purpose of finding out a prima facie case in favour of the plaintiff. This action of the Court below cannot be appreciated as it fails to approach in correct perspective. The only attack against that order issued by the Mamlatdar is that it was passed by him behind the back of Comunidade as the notice of enquiry was served not on the plaintiff. It is admitted that the notice was served on a person named Gregorio Goes on 9-12-1975. One cannot jump up to the conclusion about the competency and authority of the said Gregorio on 9-12-1975 to receive notice from the Revenue Authorities on behalf of the Comunidade without enquiring into under what circumstances, the Revenue Authorities served notice on him in compliance with the provisions of the Revenue Code. It is interesting to note that said notice was produced by the plaintiff. This fact will go a long way to infer that the notice was received in plaintiff's office and it was in its possession. The fact that the plaintiff was aware of the proceedings of the Mamlatdar, therefore, cannot be disputed. What is the authority of the person who received the notice and how he happened to receive that notice and when the notice came into the possession of the plaintiff are matters to be gone into. All these matters can be considered only during the stage of trial. Therefore, a public document unless it is finally disproved by set of cogent and strong evidence, cannot be rejected at the threshold, particularly when those documents are pressed into service for finding out a prima facie case. All these matters can be considered only during the stage of trial. Therefore, a public document unless it is finally disproved by set of cogent and strong evidence, cannot be rejected at the threshold, particularly when those documents are pressed into service for finding out a prima facie case. 4.Therefore, the finding of the Court below that the plaintiff has succeeded in proving the prima facie title of the suit property cannot be considered to be based on sound reasoning while equally competitive documents having strong probative value were produced by rival parties in the suit. The lower Court's finding about the prima facie title of the suit property is vitiated by another ground. The defendants have pleaded that even if the Court finds that they do not have any title to the suit property, they have in considerable force pleaded that their title is perfected by prescription in view of the possession they held in respect of the suit property for the last several years. When this plea was raised and without an objective discussion and consideration about the plea, the lower Court should not have entered a finding about the prima facie title in respect of the suit property in favour of the plaintiff. 5.The Court below has found balance of convenience also in favour of the plaintiff/respondent and granted the above two interim reliefs. It is discernible from the materials before me that the appellant in Appeal No. 80/93 is a Co-operative Housing Society which purchased the property to develop and divide the properties into housing plots and distribute amongst its members. The plaintiff complains in the suit that about 1,23,150 sq. metres of its land was illegally taken possession by the defendants Nos. 1 to 10 though they have no title over that property and, therefore, the plaintiff is entitled to recovery of possession of the property. On the other hand, the case of the defendants Nos. 1 to 10 is that the suit property is not belonging to the plaintiff and the defendants have got title of the property and they have never trespassed into the property of the plaintiff. The defendants Nos. On the other hand, the case of the defendants Nos. 1 to 10 is that the suit property is not belonging to the plaintiff and the defendants have got title of the property and they have never trespassed into the property of the plaintiff. The defendants Nos. 1 to 10 have another contention that, assuming that the suit property belonged to the plaintiff, they are in possession of the suit property for a long period openly and uninterruptedly and, therefore, they have perfected the title of the suit property by prescription. The Court below has failed to consider these facts in its correct perspective to reach its conclusion that the balance of convenience is in favour of the plaintiff. 6.Several documents have been produced by the either side. Oral evidence and affidavits were produced by the parties in support of their contentions. On evaluating the evidence and validity of the documents, the lower Court found a prima facie case and balance of convenience in favour of the plaintiff. The learned Counsel for the appellants submits that the order of the Court below is liable to be set aside as its findings with regard to the prima facie case and balance of convenience are perverse and contrary to the facts proved. They contend that the discretionary jurisdiction of the Court below was not properly exercised following principles laid down by the Apex Court. The Court below would not have passed the order under appeal if those principles were properly understood. Learned Counsel for the plaintiff/respondent, on the other hand, submits that no interference with order under appeal is called for as the Court below has properly exercised the discretionary jurisdiction consistent with the principles that are being followed in the matter of granting interim injunctions. 7.Before proceeding any further with discussions of this case, I would like to refer to the latest decision of the Supreme Court laying down the guidelines and norms for granting a temporary injunction. In (Mahadeo Savlaram Shelke ors. v. The Puna Municipal Corpn. anr.)1, 1995(3) Bom.C.R. 441 the Supreme Court has laid down, relying on its earlier decision, the principles to be followed in granting or not granting the injunction. In (Mahadeo Savlaram Shelke ors. v. The Puna Municipal Corpn. anr.)1, 1995(3) Bom.C.R. 441 the Supreme Court has laid down, relying on its earlier decision, the principles to be followed in granting or not granting the injunction. The Apex Court in para 7 of its judgment relying on a decision in (Shiv Kumar Chadha v. Municipal Corporation of Delhi)2, 1993(3) S.C.C. 161 held thus : "...a party is not entitled to an order of injunction as a matter of course. Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo." It is profitable to note here that, admittedly, the defendants Nos. 1 to 10 are in possession of the properties. They were dealing with the property freely and they sold the property to defendant No. 11 as early as 1989, and the defendant No. 11 took steps to develop the property for the purpose of distributing amongst the members as housing plots. It is borne out from records that all these activities were not done secretly. At various stages notifications were appearing in the newspapers regarding inviting applications from members of defendant No. 11 and the development of the site. The lower Court failed to appreciate these facts in its proper tenor. The Apex Court in the judgment supra repeating the observations made in (Dalpat Kumar v. Prahlad Singh)3, 1992(1) S.C.C. 719 held thus: "The phrases "prima facie case", "balance of convenience" and "irreparable loss" are not rethoric phrases for incantation but words of width and elasticity intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The Court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused." 8.Dwelling upon balance of convenience, it has been further observed in the decision of Mahadeo Savlaram Shelke (supra) as follows:- "Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages." 9.When the contentions raised and evidence are evenly balanced between parties and it becomes difficult to come to definite finding on issue involved before the trial is concluded. In such circumstances, the Supreme Court has laid down the guidelines for the courts to follow. In para 14 of its judgment supra, held as under:- "While exercising the power of discretion, the Court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the Court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the Court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining to proceed with the execution of the work etc. which is restrained by an order of injunction made by the Court. Even otherwise the Court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining to proceed with the execution of the work etc. which is restrained by an order of injunction made by the Court. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the Court." If these principles laid down by the Supreme Court are followed, it is essential to the courts which grant or refuse injunction to weigh objectively the pros and cons of granting injunction in favour of the plaintiff or refuse in granting injunction in support of the defendant. While doing so, apart from the prima facie case, the balance of convenience and the irreparable injury also should be counted. In other words, what the Supreme Court held is that depending upon the tilting of balance of convenience, injunction can be granted or refused by directing the parties in whose favour the order is passed to stick upon certain obligations made by the Court in the order to safeguard the interest of the parties against whom the order is passed, if that party ultimately succeeds in the suit. 10.The learned Counsel for the appellants submit that none of the above principles have been properly considered by the Court below. While elaborating this argument, Counsel for the appellants submit that the suit itself was not maintainable inasmuch as the necessary permission required to be taken as a condition precedent from the Administrative Tribunal in terms of Article 9 of the Code of Comunidades was not obtained. Even though this objection was taken by the appellants in the written statement, the lower Court does not appear to have addressed itself this point at all. I find this submission has considerable force. While evaluating the prima facie case to be made out by the plaintiff it is always the duty of the Court first to satisfy itself, prima facie, as to whether the suit is maintainable or is liable to be rejected under Order 7, Rule 11 of the Civil Procedure Code. I find this submission has considerable force. While evaluating the prima facie case to be made out by the plaintiff it is always the duty of the Court first to satisfy itself, prima facie, as to whether the suit is maintainable or is liable to be rejected under Order 7, Rule 11 of the Civil Procedure Code. Explanation offered by the Counsel for the plaintiff for not taking previous permission from the Tribunal is not at all impressive in terms of the reliefs sought in the suits and also in terms of above Article 9 of the Code of Comunidades. The learned Counsel for appellant further contends that normally a temporary injunction will not be granted in a suit for recovery of possession. It is well settled that a person who is not in possession cannot get temporary injunction. This has been authoritatively decided by this High Court in the case of (Ratiram Pundalik Khedkar v. Pundalik Arjun Khedkar)4, A.I.R. 1982 Bom. 79. Relevant para is para 10, which reads as follows :- "Now in the first place, I find that an application for temporary injunction in a suit for perpetual injunction proceeds on an assumption that the plaintiff on the date of the suit and on the date of making such an application is in actual possession of the property and that his peaceful possession is being threatened. If the plaintiff is not in possession then the suit for perpetual injunction simpliciter in fact would be untenable and if in such a situation if he applies for temporary injunction (not being in possession) and if the courts were to grant such a relief, there is every possibility that such an order obtained by an ingenious and crafty plaintiff on suppression of true facts is likely to be used not as a shield to preserve and protect his possession, but verily as a warrant of possession against which the courts issuing an order of injunction must guard themselves." 11.Learned Counsel for appellants, therefore, submits that going by the above principle plaintiff is not entitled to an interim injunction if he is not in possession of the suit property. It has been further submitted by the Counsel for the appellants that Tombo plan is the only documentary evidence produced by the plaintiff to prove the title of the suit property. It has been further submitted by the Counsel for the appellants that Tombo plan is the only documentary evidence produced by the plaintiff to prove the title of the suit property. It is submitted that the said plan is prepared by the plaintiff itself and, therefore, it cannot be relied upon to prove the title even for prima facie purpose. At the same time, the Court below has committed a serious error in rejecting the certificate issued by the Mamlatdar under the Land Revenue Code. Only objection raised by the plaintiff is that it was obtained behind the back of the plaintiff and, therefore, it is not binding on the plaintiff. I find nowhere in the order that the Court below has taken this aspect into consideration while reaching its conclusion. This, according to me, is a serious error in appreciating the evidence committted by the Court below. 12.Let me point out another anomaly contained in the order under appeal. Main prayers of the suit were one for recovery of possession and the declaration of title of the suit properties etc. Admittedly, the plaintiff alleges that the defendants are trespassers and they are illegally in possession of 1, 23, 150 sq. metres of land belonging to the plaintiff. The plaintiff also wants a declaration of title in favour of the plaintiff. As I pointed out earlier, one of the prayers in the suit is for recovery of possession which normally implies that the possession is with the defendants exclusively. At the same time it is astonishing to note the observation made by the Court below at the end of para 16:- "In my opinion, considering that the disputed portion is waste and barren land the aspect of possession can best be left to be determined at the trial of the suit." I am afraid as to how the lower Court has come to this conclusion when the prayer in the suit itself was for recovery of possession of the suit property. 13.We have seen here that the dispute involved is in respect of a vast area of land. We have to see as to what exactly is the controversy between the parties. There is no dispute that Survey No. 25 belongs to the defendants Nos. 1 to 10. There is also no dispute regarding properties situated contiguously. 13.We have seen here that the dispute involved is in respect of a vast area of land. We have to see as to what exactly is the controversy between the parties. There is no dispute that Survey No. 25 belongs to the defendants Nos. 1 to 10. There is also no dispute regarding properties situated contiguously. The new Survey No. 7/2 and 4/2 carved out from original 7 and 4 correspond to southern part of lot No. XVII. What is disputed is that though Survey No. 25 belongs to the defendants Nos. 1 to 10, the extent of the property of the defendants is only confined to that and nothing belongs to them beyond that. Admittedly, an extensive area of 1, 23, 150 sq. metres of land is in possession of defendants on the date of the suit. At least they claimed that they were in possession of this vast area lying adjoining to their own land in Survey No. 25 and possessing the said land as if their own land and bona fide transferred the property in favour of a Co-operative Society in 1989. The plaintiff came to approach the Court only in 1992 by way of this suit. One important point which we have to bear in mind in this context is that the plaintiff is a juristic person having power to own and possess immoveable properties and its office bearers are private individuals and persons nominated by the Governor. One cannot simply believe that such a Body were not aware of losing their vast area of land which is lying contiguously to the property of defendants Nos. 1 to 10. It also cannot be said that plaintiff is not vigilant or cautious or conscious about their rights to protect their property leaving 1,23,150 sq. metres of land to be trespassed by strangers. All these circumstances are relevant to be borne in mind before granting or refusing to grant injunction against the defendants. It is true that the titles of the property are in dispute and this dispute could be resolved only, as rightly pointed out by the Court below, after a detailed trial taking oral and documentary evidence and conducting a proper survey by a Commissioner duly appointed in that behalf. It is true that the titles of the property are in dispute and this dispute could be resolved only, as rightly pointed out by the Court below, after a detailed trial taking oral and documentary evidence and conducting a proper survey by a Commissioner duly appointed in that behalf. But the question is whether a Co-operative Society, defendant No. 11, which purchased the land bona fide for the purpose of distribution of house plots amongst its members, mostly are the employees of the Port Trust, should be stopped or injuncted from proceeding with development activities till the final decision in the suit by a Court of law. I do not think, viewed in this perspective, the balance of convenience is in favour of the plaintiff. As rightly pointed out by the Court below, in order to resolve the dispute involved in this case, particulars of boundaries of the disputed property enabling a proper measurement of the same by a duly appointed Commissioner, of course, can be made. If such boundaries are to be preserved for the purpose of resolving the dispute properly in future, the only question then remains is as to whether any development works done and building activities are to be stopped. In order to safeguard the interest of the plaintiff as regards the injury resulting from such development and construction, it can be protected by a proper order consistent with guidelines laid down by the Supreme Court. The balance of convenience has to be examined taking into account all aspects of the case. As I have pointed out earlier, the possession of the suit property is with the defendants. The defendants Nos. 1 to 10 claim title of the properties and defendant No. 11 is a bonafide purchaser from defendants Nos. 1 to 10. They are in possession of the property. There is a strong case pleaded by the defendants that their title is perfected by prescription. Supposing that in the ultimate result, the Court finds their possession was legal and title was perfected by prescription or otherwise, is it not hard in practical point of view to stop the defendants, particularly defendant No. 11, from developing the property for distribution amongst its members. The balance of convenience is a thing to be decided taking all the factors into consideration. In this case, dispossession of the plaintiff of a vast area of 1, 23, 150 sq. The balance of convenience is a thing to be decided taking all the factors into consideration. In this case, dispossession of the plaintiff of a vast area of 1, 23, 150 sq. metres of land, rival claims on title based on the plea of adverse possession are put up by the defendants, the development work has already been started with the approval of the concerned Authorities as early as 1989, the fate and future of providing shelters to a large number of families which is interlinked with the dispute involved in this case etc. and all things connected therewith will have a considerable bearing on the decision of balance of convenience. According to me, taking into account the nature of the suits and the nature of claims put up by the concerned parties, the injunction issued by the Court below restraining from developing or, in any other manner, interfering with the nature of the property is quite unwarranted and against the trend of balance of convenience emerging from this case. In view of this, I do not find any justification in continuing the first part of the order under appeal granting injunction restraining the defendants from levelling, developing and constructing or improving the land in any manner as ordered by the Court in the impugned order. I do hereby vacate the interim injunction granted by the Court below. 14.In the result, Appeals are allowed with following directions :- (i) The interim injunction granted by the Court below in the first part of its order stands vacated. (ii) The gradient in Survey No. 25 which is lying on the south-west corner of the suit property shall not be changed or altered in any manner and it should be preserved by the appellants till the Government Head Surveyor or Commissioner visits the property and carries out his work as directed by the Court below. (iii) Necessary orders for appointment of a Government Head Surveyor or Commissioner to inspect the suit property, to carry out the survey and record his observations, as laid down by the second part of the order of the lower Court shall be issued forthwith. (iii) Necessary orders for appointment of a Government Head Surveyor or Commissioner to inspect the suit property, to carry out the survey and record his observations, as laid down by the second part of the order of the lower Court shall be issued forthwith. (iv) The said Commissioner shall immediately visit the suit property and note the nature and the lie of the gradient in Survey No. 25 which is lying on the south-west corner of the suit property and submit an interim report to the Court within 4 weeks from today. (v) Pending the carrying out the direction contained in Clause (iv) above, the interim injunction granted by the impugned order will continue for another 4 weeks from today. (vi) If, pending the suit, development in the property, distribution of plots and construction of houses etc. are done by the defendants or any members of the defendant No. 11, it will be subject to the result of the suit and at the risk of the defendants and the concerned parties. In case the plaintiff succeeds ultimately, the defendants and members of the defendant No. 11, Co-operative Society, shall vacate the suit property without any demur. The defendant No.11 is directed to intimate all its members the conditions imposed by this Court in this order positively and report the facts to that effect to the Court below. (vii) Considering the magnitude of the housing problem facing several persons who are the members of the Co-operative Housing Society, defendant No. 11, and vast extent of the property involved in this dispute, I direct the Court below to expedite the trial of the suit and dispose of the same finally on or before 31-3-1996. 15.For issuing necessary orders by the Court below to the Commissioner to carry out the directions contained in this order, the suit is fixed for appearance of the parties or their Counsel before the Court below on 28-6--1995. 16.With the above modification and observations, the aforesaid Appeals from Order No. 75/93 and No. 80/93 are disposed of. There shall be no orders as to costs. Petition allowed. *****