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2014 DIGILAW 957 (BOM)

Sunita Narahari Parab v. Usha Anant Lad

2014-04-11

S.B.SHUKRE

body2014
Judgment : 1. Heard Mr. Naik learned Counsel appearing on behalf of the petitioners and Mr. Sardessai, learned Counsel appearing on behalf of the respondent. 2. By this writ petition, the petitioners have challenged the legality and proprietary of the order passed on 30.04.2013 by the learned District Judge-1, Panaji in Miscellaneous Civil Appeal No. 64 of 2012 thereby quashing and setting aside the order of the trial Court rejecting temporary injunction application of the respondent and partly granting it. 3. By the order impugned herein the first appellate Court has restrained the petitioners from interfering with the suit property bearing Survey No. 359/23 and also restrained them from carrying out any construction. Further, they have been restrained from selling or alienating or changing the user of the property or transferring or disposing it of in any manner. 4. Learned Counsel for the petitioners has submitted that the prima-facie consideration of documents produced on record by both sides made by the trial Court is correct and whereas the first appellate Court has half-heartedly considered these documents and therefore the findings recorded by the first appellate Court are perverse. He further submits that since the respondent did not produce any title document to show that the suit property belonged to her grand-father, Laxman alias Lacximona Sadashiv Lad, the finding of the trial Court that respondent failed to establish prima-facie case in her favour could not have been upset by the first appellate Court. 5. On the other hand, learned Counsel for the respondent submits that the appellate Court has appropriately considered prima-facie effect of the documentary evidence produced on record and has made proper prima-facie conclusions and, therefore, order of the first appellate Court cannot be said to be perverse and arbitrary so as to warrant interference in writ jurisdiction of this Court. 6. I have gone through the order of the trial Court. It is seen that the trial Court has held that the respondent failed to produce on record any title document showing that suit property belonged to her grand-father, Laxman alias Lacximona Sadashiv Lad and the name of Laxman alias Lacximona Sadashiv Lad also did not appear in the survey records. The trial Court has further found that in Forms I & XIV of the property bearing survey no. 359/14, the house has been shown as belonging to Narahari Khemu Parab, the husband of petitioner no. 1. The trial Court has further found that in Forms I & XIV of the property bearing survey no. 359/14, the house has been shown as belonging to Narahari Khemu Parab, the husband of petitioner no. 1. It is also found that the property bearing survey no. 359/23 was agreed to be sold by Govind Laximan Lad to Manohar Narahari Parab by the agreement of sale dated 24.05.2010 and that the respondent did not challenge the agreement dated 24.05.2010 by virtue of which possession of area of 500 square metres of survey no. 359/23 has been handed over to Manohar Narahari Parab and in which laterite stones in the said portion of 500 square metres had been dug out. On these findings, the trial Court held that respondent failed to make out any prima-facie case for grant of injunction. 7. The reasons so given by the trial Court, however, are not at all supported by the documents placed on record by both sides. On the contrary, the reasons given by first appellate Court to hold that respondent has established existence of prima-facie case in her favour appears to be prima-facie logically arising from these documents. 8. The first appellate Court has held that the suit property known as “Bilawachi Gali” surveyed under survey no. 359/14 and 359/23, bears description no. 1146 and inscription in the name of Laxman alias Lacximona Sadashiv Lad. This evidence, at this stage, has been considered by the first appellate Court as relevant for establishing prima-facie title of the respondent to the suit properties and having regard to the documentary evidence on record, I do not find any perversity in the importance given to the certificate of inscription and description by the first appellate Court. 9. The learned Counsel for petitioners has submitted that the first appellate Court has wrongly shifted the burden to prove the properties mentioned in the certificate to the petitioners. He submits that it was for the respondent to prove her case or fail. The argument cannot be accepted. The first appellate Court has observed that the petitioners have not shown that there is any other property in the locality with the same name “Bilwachi Gali” and which is surveyed under other survey number and, therefore, the first appellate Court concluded that it has to be accepted that the property “Bilwachi Gali” described under no. The first appellate Court has observed that the petitioners have not shown that there is any other property in the locality with the same name “Bilwachi Gali” and which is surveyed under other survey number and, therefore, the first appellate Court concluded that it has to be accepted that the property “Bilwachi Gali” described under no. 1146 and inscribed in the name of Laxman alias Lacximona Sadashiva Lada is the suit property prima-facie owned by Laxman. I do not think this observation can be understood to shift the burden of proof to the petitioners. By this observation, the first appellate Court has only meant that prima-facie, no doubt about the ownership of the Laxman alias Lacximona Sadashiva Lada in respect of the suit property could be entertained. 10. Learned Counsel for the petitioners has further submitted that respondent has also failed to prove that she is the grand-daughter of Laxman alias Lacximona Sadashiv Lad and niece of Shrikant Lad and that Shrikant and Sadashiv Lad was the same person. On going through the order of the first appellate Court, one can see that this aspect of the matter has been elaborately dealt with by the first appellate Court by considering the birth certificate of the respondent, death certificate of her father and the sale deed dated 02.09.1998 showing that Govind Lad was the brother of Anant Lad and that Shrikant Lad, another brother, was also known by the name Sadashiv. Upon such consideration, the first appellate Court has found that the respondent was the grand-daughter of Laxman alias Lacximona Sadashiv Lad and she being the daughter of Anant Lad, one of the co-owners of the suit properties, would inherit rights of her father. With such documentary evidence available on record, the first appellate Court has rightly recorded a further finding that prima-facie, Govind Lad could not have put the petitioners in possession of the suit property without consent of the other co-owners. Again, this conclusion cannot be found to be inconsistent with the prima-facie material available on record. 11. The first appellate Court has also given its anxious consideration to what it means when laterite stones were dug out in the suit properties. According to the first appellate Court, they indicated an intention of the petitioners to make some construction in the suit properties, especially when the petitioners were claiming rights over the same. 11. The first appellate Court has also given its anxious consideration to what it means when laterite stones were dug out in the suit properties. According to the first appellate Court, they indicated an intention of the petitioners to make some construction in the suit properties, especially when the petitioners were claiming rights over the same. This approach of the first appellate Court cannot be found to be faulty in any manner. 12. Thus, it can be seen that it was rather the trial Court which committed serious error of law in not considering the material available on record in a logical and rational manner, which error has been corrected by the first appellate Court by quashing and setting aside the order of the trial Court dated 11.05.2012 and partly granting the temporary injunction application filed by the respondent. The order of the first appellate Court dated 30.04.2003 is therefore, legal and calls for no interference, whatsoever. 13. One clarification needs to be made. The first appellate Court's order has not been made of temporary nature and the conclusions recorded by it have also not been qualified to be of prima-facie nature. Therefore, it is clarified that the order dated 30.04.2013 shall be read as the order which would be valid till the final disposal of the suit and whatever is concluded therein would be understood as of prima-facie nature, having no bearing upon the merits of the case. 14. The learned Counsel for the petitioners has referred to me the cases of Hindustan Petroleum Corporation Limited Vs. Sriman Narayan and Another reported in (2002) 5 SCC 760 and OmkarSingh Vs. Sain Singh and Others reported in AIR 10 Jammu and Kashmir, page-9 to support his argument that three principles namely, existence of prima-facie case, balance of convenience and causing of irreparable loss are required to be considered for deciding any application for grant of temporary injunction. These principles of law, I must state, are well entrenched in our legal system and need no reiteration while deciding the application for temporary injunction and that they have been followed by the first appellate Court. 15. Learned Counsel for the respondent has also referred to me some cases which I do not think are required to be taken up for consideration after having found that there is no perversity or arbitrariness in the order impugned herein. 16. 15. Learned Counsel for the respondent has also referred to me some cases which I do not think are required to be taken up for consideration after having found that there is no perversity or arbitrariness in the order impugned herein. 16. In the circumstances, I find that there is no merit in the writ petition and it deserves to be dismissed summarily. 17. At this stage, learned Counsel for the petitioners submits that the order of the first appellate Court as well as the order of this Court should not be so construed as to prevent the petitioners from carrying out necessary repairs in the house in their possession. He submits that according to the petitioners, it is a mundkarial house. The learned counsel for the respondent submits that the claim of mundkarship is yet to be established. Considering that there is a dispute about the claim of mundkarship of the petitioners in respect of the house existing in survey no.359/14, at the most liberty can be granted to the petitioners to approach the appropriate authority for asserting their rights, if any, in respect of the said properties, in accordance with law. 18. Subject to the observations made herein above, write petition stands dismissed summarily. No order as to costs.