Raghuvir Mhadu Naik, s/o late Mhadu Naik v. Prakash Krishna Shet s/o Krishna Shet, major and others
1996-06-21
T.K.CHANDRASHEKHARA DAS
body1996
DigiLaw.ai
JUDGMENT - T.K. CHANDRA SHEKHARA DAS, J.:---The plaintiff in Special Civil Suit No. 68 of 1993 on the file of Civil Judge, Sr. Division, Ponda is the appellant herein. The appellant challenges in this appeal, the order passed on 17-1-1994 in Civil Misc Appin. No. 196/93/A by the trial Court. By the impugned order, the interim application filed by the appellant before the Court below, seeking an interim mandatory injunction to demolish the construction that is being constructed by the first defendant in the suit property and also recovery of possession of the suit property was dismissed by the Court below. 2.The Lower Court, taking into account the nature of the construction and the property being it belongs to the Communidade found that the petitioner has no locus standi to file the suit. 3.Admittedly, the suit property belongs to the Communidade. The appellant is a component of the Communidade. He asserted that even as a component, when the Communidade is illegally meddling with the property of the Communidade, he has got every right to take the matter before Court and seek appropriate remedy to protect the property of the Communidade. The Lower Court found that if at all any unauthorised dealing of the property by the Communidade is there, it is for the Government and also for the fourth defendant to take necessary action. In this context, the Lower Court found that the appellant has no locus standi to file the suit, and the injunction sought for was rejected. I think the findings of the locus standi of the Court below should be restricted only for the purpose of interim application. Any citizen can approach the Court of law to bring to the notice of the Court when a public property is being destroyed. In that context, I think that the findings of the Lower Court that the appellant has no locus standi to file the suit has to be restricted only for the purpose of interim application. The matter, therefore, has to be further gone into and decided in the trial of the suit. Therefore, I make it clear that the question of locus standi, as already found by the Lower Court is only confined to the interim application and the question of locus standi should be tried, as an issue in the suit.
The matter, therefore, has to be further gone into and decided in the trial of the suit. Therefore, I make it clear that the question of locus standi, as already found by the Lower Court is only confined to the interim application and the question of locus standi should be tried, as an issue in the suit. 4.The learned Counsel for the petitioner submits that in as-much-as, the Court below erroneously found that the appellant has no locus standi, the injunction application was rejected, therefore, the rejection of his injunction application has to be set aside. I do not agree with the contention of learned Counsel for the appellant. As I have already pointed out, the locus standi of the appellant, is a matter of debate and has to be decided by the Court. Therefore, it is not safe at this stage to inject the defendants from doing further construction. I make it clear that if at all construction is continued and completed during the pendency of the suit, the defendants should without any demur, surrender the property, without claiming any compensation for the construction, if ultimately the plaintiff succeeds in that suit. 5.With these observations, the appeal is dismissed. There shall be no order as to costs. Appeal allowed. *****