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2013 DIGILAW 641 (BOM)

Isabel Mascarenhas v. Estela Godinhoe Mascarenhas

2013-03-14

F.M.REIS

body2013
Judgment : Heard Shri A. D. Bhobe, learned Counsel appearing for the Petitioners, Shri Agni, learned Counsel appearing for the Respondent nos. 1 to 4 and Shri Arolkar, learned Counsel appearing for the Respondent nos. 5 and 6. 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the Respondents, waive service. 3. The above Petition challenges the order passed by the learned Appellate Court whereby the Petitioners, inter alia, have been restrained from enjoying the fruit bearing trees situated in the suit property. 4. Shri Bhobe, learned Counsel appearing for the Petitioners, has pointed out that the Petitioners have got a purchase certificate issued by the learned Mamlatdar permitting the petitioners to purchase the disputed property on the basis of the claim of tenancy therein. Learned Counsel further pointed out that the Petitioner no.1 is the second wife of the original tenant and, as such, she is entitled to inherit the tenancy rights. Learned Counsel further submits that the Petitioners are in possession of the suit property and, as such, the learned Judge was not justified to pass the impugned Order to the extent referred to above. Learned Counsel further pointed out that the learned Trial Judge had, inter alia, also directed the Petitioners by mandatory injunction to remove the construction/structures existing therein which the learned Lower Appellate Court has set aside to that extent. 5. On the other hand, Shri Agni, learned Counsel appearing for the Respondent nos. 1 to 4 pointed out that the purchase certificate relied upon by the Petitioners has been obtained by fraud and, consequently, the suit has been filed for appropriate reliefs by the Respondents. Learned Counsel further submits that the Respondents/plaintiffs are the legal descendants of the original tenant from the first wife and, as such, they are also entitled to inherit the suit property. Learned Counsel further pointed out that the possession in respect of the suit property was always with the Respondents. 6. I have considered the submissions of the learned Counsel appearing for the respective parties. I have also gone through the records. The dispute with regard to possession has been strongly disputed by both the parties and the matter would have to be decided on its own merits during the course of trial of the suit. 6. I have considered the submissions of the learned Counsel appearing for the respective parties. I have also gone through the records. The dispute with regard to possession has been strongly disputed by both the parties and the matter would have to be decided on its own merits during the course of trial of the suit. Taking note of the fact that the fact finding Courts have found, prima facie, that the Respondents were entitled for the injunction as granted, I find that as such Orders are within the discretion of the Courts below, no interference is called for by this Court in exercise of jurisdiction under Article 227 of the Constitution of India. I cannot find any perversity and arbitrariness of the learned Trial Court whilst passing the impugned Order as, the lower Court has rightly set aside the Order granting the Order of mandatory injunction by the Trial Court. 7. In the facts and circumstances of the case, no interference is called for in the impugned Order, nevertheless, I find it appropriate in the interest of justice, that the Respondents/original Plaintiff nos. 1 to 6 be put to terms during the pendency of the suit. Considering the contentions of the learned Counsel and the nature of the disputed property, I find it appropriate that the Respondents be directed to deposit a sum of Rs.5,000/- per annum before the learned Trial Judge from the year 2011 until the disposal of Regular Civil Suit no. 90/2005/D. The arrears of the amounts as directed will be deposited by the Respondents within four weeks from today and continue to deposit the subsequent amounts every year before the learned Trial Judge until the disposal of the suit. The amounts so deposited shall be subject to the final orders that may be passed in the suit filed by the Respondents on merits. The learned Trial Judge shall invest the said amount in fixed deposit in any Nationalised Bank initially for a period of two years and the same shall be renewed from time to time till the disposal of the suit. 8. Subject to the said modification referred to herein above, I find no reason to interfere in the impugned Order. Hence, the Petition is disposed of accordingly. 9. Rule stands disposed of in the above terms.