Monday, 4 April 2016

Whether court can grant injunction without giving finding as to who is in possession of suit property?

I have carefully considered the submissions of the learned
Counsel and also gone through the plaint filed by the respondent for
injunction simplicitor. It is now well settled that in a suit for injunction
simplicitor, one paramount consideration to be examined by the Court
is as to whether the plaintiff (respondent herein) has been in
possession of the disputed portion. Even assuming that the respondent
has title and if he failed to establish that he was in possession of the
portion thereof, the suit for injunction simplicitor would fail. As a
matter of fact, as rightly pointed out by Shri S.D. Lotlikar, learned
Senior Counsel appearing for the appellants, there was a sanctioned
plan produced on record, which was approved way back in the year
1980 in respect of the house constructed by the appellants in the
property survey No.59/1 which shows that there is a set back of 4.20
metres from southern boundary to the outer wall of the proposed
construction. This material piece of evidence which would assist the
Court to examine as to who is in possession of the disputed portion, as
well as to decide the demarcating line separating the property of the
appellant and the respondents towards the southern boundary, has not 
at all been examined by the Courts below while examining the
evidence of the respondent. It is also to be noted that the demarcation
claimed by the appellants would have to be examined in a manner as
provided with the law in force. Even to grant such a relief, the
question of possession would be relevant to fix the demarcating line.
Shri C. A. Coutinho, learned Counsel appearing for the respondent has
fairly conceded that the Courts below have not given any definite
finding on possession of the disputed portion. In such circumstances,
the impugned judgment passed by the lower appellate Court cannot be
sustained and deserves to be set aside.
 IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 32 OF 2008
 Francisco Xavier Rose Almeida,

 Versus
Antonio Columban Wilson
das Dores Fernandes alias
Wilson Fernandes,

 CORAM :- F.M. REIS, J.
 Date : - 6th February, 2015.

Citation;2016(1) ALLMR 615

2. The above appeal came to be admitted by an order dated
20th January, 2009, on the following substantial questions of law :
1. Whether it was necessary for the courts below
to have framed a issue/point for determination as to
which party was in possession of the disputed
portion ?
2. Whether the courts below should have
considered the evidence on record to find out which
party was in possession and that having not been
done, whether the judgment and order passed by the
courts below should be said to be perverse ?  
3. Shri S.D. Lotlikar, learned Senior Counsel appearing for
the appellants submits that there is a boundary dispute between the
property belonging to the appellants and the respondent as, according
to him, the property of the appellants is surveyed under No.58/9 of
village Sernabatim and a portion thereof is surveyed under No.59/1A.
The learned Senior Counsel submits that the demarcating line of the
property of the appellants was a drop of nearly one metre in height,
which was accepted to be the boundary line between the two
properties. The learned Senior Counsel further submits that on the
basis of such boundary line, the appellants got their plans approved for
construction of a house, after obtaining all necessary permissions
somewhere in the year 1980. The learned Senior Counsel further
points out that the appellants always had an impression that the
boundary line separating the property of the appellants and the
respondent towards the southern side was the said drop and
consequently, according to him, such boundary line was shown to the
authorities while obtaining the sanctions. The learned Senior Counsel
has, thereafter, taken me through the plan and pointed out that the
setback from such demarcating line to the outer southern wall of the 
house of the appellants is 4.25 metres. The learned Senior Counsel
further points out that considering the said distance, the claim of the
respondent that the whole property surveyed under No.59/1A belongs
to the respondent is totally erroneous. The learned Senior Counsel
further points out that the property was resurveyed somewhere in the
year 1981 on the basis of the statement recorded of the mother of the
appellants fixing the demarcating line, separating the property of the
appellants and the respondent on the southern side. The learned Senior
Counsel, however, points out that the said statement, in any event,
cannot defeat the claim of the appellants to the disputed portion as
the mother did not know the legal position about the title of the
property at the relevant time. The learned Senior Counsel further
submits that the appellants, as well as their ancestors, were always
enjoying the property as per the demarcating vestige, which was a drop
separating the property of the appellants and the respondent and, as
such, the Courts below were not justified to grant the injunction,
without examining as to who is in possession of the disputed portion.
The learned Senior Counsel further points out that the appellants also
filed a counter claim to fix the demarcating line between the property
of the appellant and the property of the respondent towards the 
southern side. The learned Counsel further points out that the
respondent had encroached into the property of the appellants
sometime before the filing of the suit and taking advantage of such
mischief, the respondent claimed that they were in possession of the
disputed portion. The learned Senior Counsel has, thereafter, taken me
through the judgment of the lower appellate Court to point out that
there is no scrutiny of the materials produced by the appellants and the
respondent to come to the conclusion that the respondent was entitled
for an injunction. The learned Senior Counsel further points out that
merely on the basis of the survey record, the Courts below have nonsuited
the appellants with regard to their claim over the disputed
portion of the property. The learned Senior Counsel further submits
that there can be no dispute against their title and as such, considering
that the property of the appellant is registered in the land registration
office, the property of the appellant is an independent property,
corroborated with the demarcating line as shown in the plan. As such,
the learned Senior Counsel submits that the substantial questions of
law be answered in favour of the appellants.
4. On the other hand, Shri C.A. Ferreira, learned Counsel 
appearing for the respondent, has pointed out that the lower appellate
Court has rightly assessed the material on record to come to the
conclusion that the title of the properties surveyed under Nos. 58/9
and 59/1 of village Sernabatim are referable to the title of the
appellants and the respondent. The learned Counsel further points out
that there was a Deed of Gift executed by the mother in the year 1980
in favour of the appellants which clearly shows that the property of the
appellants is restricted to the property surveyed under No.58/9. The
learned Counsel further points out that in the documents produced by
the appellants, there is nothing to suggest that any portion of the
property surveyed under No.59/1 was part and parcel of the property
belonging to the appellants. The learned Counsel further points out
that the Courts below have rightly appreciated the evidence on record
to come to the conclusion that the respondents were entitled for the
injunction as prayed for. The learned Counsel further points out that
the question of demarcation would not arise considering that the Courts
below have construed the title documents of the parties to come to the
conclusion that the respondent was entitled for the relief as sought for.
The learned Counsel, as such, submits that the appeal be rejected and
the substantial questions of law be answered in favour of the 
respondent.
5. I have carefully considered the submissions of the learned
Counsel and also gone through the plaint filed by the respondent for
injunction simplicitor. It is now well settled that in a suit for injunction
simplicitor, one paramount consideration to be examined by the Court
is as to whether the plaintiff (respondent herein) has been in
possession of the disputed portion. Even assuming that the respondent
has title and if he failed to establish that he was in possession of the
portion thereof, the suit for injunction simplicitor would fail. As a
matter of fact, as rightly pointed out by Shri S.D. Lotlikar, learned
Senior Counsel appearing for the appellants, there was a sanctioned
plan produced on record, which was approved way back in the year
1980 in respect of the house constructed by the appellants in the
property survey No.59/1 which shows that there is a set back of 4.20
metres from southern boundary to the outer wall of the proposed
construction. This material piece of evidence which would assist the
Court to examine as to who is in possession of the disputed portion, as
well as to decide the demarcating line separating the property of the
appellant and the respondents towards the southern boundary, has not 
at all been examined by the Courts below while examining the
evidence of the respondent. It is also to be noted that the demarcation
claimed by the appellants would have to be examined in a manner as
provided with the law in force. Even to grant such a relief, the
question of possession would be relevant to fix the demarcating line.
Shri C. A. Coutinho, learned Counsel appearing for the respondent has
fairly conceded that the Courts below have not given any definite
finding on possession of the disputed portion. In such circumstances,
the impugned judgment passed by the lower appellate Court cannot be
sustained and deserves to be set aside.
6. It is now well settled that a first appeal is a valuable right
of a party and it is expected of the first appellate Court to examine each
and every piece of evidence produced by both the parties to determine
the correctness of the findings of the trial Court.
7. The Apex Court, in its recent judgment reported in 2015
SCC OnLine SC 26, in the case of Shasidhar & others vs. Smt.
Ashwini Uma Mathad and another, has observed at paragraph 16
thus :  9 SA 32-08ssm
“In Santosh Hazari v. Purushottam Tiwari
(Deceased) by L.Rs. (2001) 3 SCC 179, this Court
held (at pages 188-189) as under :
“.... the appellate court has jurisdiction to reverse
or affirm the findings of the trial court. First
appeal is a valuable right of the parties and
unless restricted by law, the whole case is therein
open for rehearing both on questions of fact and
law. The judgment of the appellate court must,
therefore, reflect its conscious application of
mind and record findings supported by reasons,
on all the issues arising along with the
contentions put forth, and pressed by the parties
for decision of the appellate court..... while
reversing a finding of fact the appellate court
must come into close quarters with the reasoning
assigned by the trial court and then assign its
own reasons for arriving at a different finding.
This would satisfy the court hearing a further
appeal that the first appellate court had
discharged the duty expected of it.....”
8. Considering the said judgment of the Apex Court and
taking note of the judgment passed by the lower appellate Court, I find
that the lower appellate Court has not at all scrutinized every piece of 
evidence produced by both the parties to come to a definite conclusion
that the appellants were entitled for the relief as claimed in the suit.
Apart from that, the lower appellate Court has also not examined the
title documents, including the land registration document to ascertain
the demarcating line between the property of the appellants and the
respondent. Having failed to exercise the jurisdiction as expected of
the first appellate Court, I find, in the interest of justice, that the
impugned judgment passed by the first appellate Court needs to be
quashed and set aside and the matter be remanded to the lower
appellate Court to decide the appeal preferred by the appellants afresh,
after hearing the parties in accordance with law. The substantial
questions of law are answered accordingly.
9. In view of the above, I pass the following order :
(I) The appeal is partly allowed.
(II) The impugned Judgment and Order dated 16/10/2007,
passed by the Adhoc District Judge – 2, FTC-II, South Goa, Margao in
Regular Civil Appeal No.48/2007 is quashed and set aside.
(III) Regular Civil Appeal No.48/2007, is restored to the file of
the learned Judge.  11 SA 32-08ssm
(IV) The learned Judge is directed to decide the above appeal
afresh, in the light of the observations made herein above, in
accordance with law.
(V) All the contentions of both the parties, on merits, are left
open.
(VI) The appeal stands disposed of accordingly, with no order
as to costs.
(VII) The parties are directed to appear before the Court of
learned Principal District Judge on 16/4/2015, at 10 a.m..
 F.M. REIS, J.
ssm. 
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