Case Note & Summary
The writ petition under Article 227 of the Constitution of India challenged the judgment dated 17.11.2018 of the District Judge, Mapusa, in Miscellaneous Civil Appeal No. 31/2018, which confirmed the trial court's order dated 20.02.2018 dismissing the petitioner's application for temporary injunction. The petitioner was defendant no.27 in a suit filed by respondent nos.1 to 8 for declaration, cancellation of sale deed, and permanent injunction concerning property bearing survey nos.212/3, 212/2 (part) and 213/0 in village Sal, Bicholim, Goa. The plaintiffs claimed title as successors of Gopal Shiva Raut, asserting that the property was mortgaged in 1929 but released in 1930, and that the petitioner's claim derived from a sale deed executed in 1994 by Soma Dattaram Raut and others in favour of the petitioner's mother, who was not the true owner. The petitioner, in his counterclaim, asserted ownership through a series of transactions originating from a purchase in 1947 by Soma Dattaram Raut and a subsequent court decree in 1942, and relied on mutation entries, inscription records, and other documents. The trial court dismissed the injunction application, finding no prima facie case in the petitioner's favour. The appellate court confirmed this, observing that the petitioner had failed to demonstrate possession and that the sale deed was suspect. The petitioner argued that the appellate court erroneously considered an admission of possession that was not made, and that the documentary evidence established title. The High Court, after hearing submissions, reserved judgment.
Issue of Consideration
Whether the lower courts committed material irregularity in dismissing the temporary injunction application
Law Points
- Article 227 supervisory jurisdiction limited to patent illegality or perversity
- temporary injunction requires prima facie case
- balance of convenience and irreparable injury
- mutation entries under Land Revenue Code do not confer title
- inscription certificate under Portuguese Civil Code as evidence of title
Case Details
2020 LawText (BOM) (04) 14
Writ Petition No. 1188 of 2018
Mr. Shivan Desai, Mr. Ashwin D. Bhobe, Mr. Sagar Sarmalker, Mr. V. R. Tamba, Mr. P. Sawant
Smt. Laxmi Vaman Raut & Ors
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Nature of Litigation
Civil suit for declaration, cancellation of sale deed, and permanent injunction with a counter claim for injunction.
Remedy Sought
Petitioner (defendant) filed application for temporary injunction against plaintiffs from interfering with the suit property.
Filing Reason
Petitioner claimed ownership and possession based on a sale deed and mutation entries, alleging plaintiffs were disturbing possession.
Previous Decisions
Trial Court dismissed the temporary injunction application on 20.02.2018; District Judge dismissed the appeal on 17.11.2018; petitioner filed writ petition under Article 227.
Issues
Whether the lower courts committed patent illegality or material irregularity in dismissing the application for temporary injunction?
Whether the petitioner established a prima facie case for grant of temporary injunction?
Whether the concurrent findings of fact were perverse?
Submissions/Arguments
Petitioner's counsel argued that the appellate court wrongly assumed an admission of possession; that the documentary evidence (inscription certificate, sale deed, mutation entries) proved ownership and possession; that lower courts ignored material evidence; and that mutation entries have presumptive value under Section 105 of the Land Revenue Code.
Respondents opposed the petition and contended that the sale deed was fraudulent and that the plaintiffs had prior possession and title.
Judgment Excerpts
The challenge in this Petition under Article 227 of the Constitution of India, is to the judgment and order dated 17.11.2018 passed by the learned District Judge at Mapusa in Miscellaneous Civil Appeal No. 31/2018 thereby confirming the order dated 20.02.2018 passed by the learned Civil Judge Junior Division at Bicholim in Regular Civil Suit No. 62/2013.
The petitioner filed application Exhibit D-24 for temporary injunction in the aforesaid terms.
The learned Trial Court by an order dated 20.02.2018 dismissed the application, which order has been confirmed by the learned District Judge.
I have heard Mr. Desai, the learned Counsel for the petitioner and Mr. Bhobe, the learned Counsel for the contesting respondent nos. 1 to 8.
Mr. Desai, the learned Counsel for the petitioner has strenuously urged that the Appellate Court has proceeded on the wrong assumption and premise that the petitioner had admitted that the respondent nos. 1 to 8 (original plaintiffs) were in possession of the suit property.
It is submitted that the inscription records are title documents under Article 953 of the Portuguese Civil code.
It is submitted that the name of the petitioner has also been mutated in the revenue record long back which has a presumptive value under Section 105 of the Land Revenue Code.
Procedural History
The suit for declaration, cancellation of sale deed and permanent injunction was filed by respondents 1-8 against the petitioner and others. Petitioner filed a counter claim and an application for temporary injunction (Exhibit D-24). On 20.02.2018, the Civil Judge Junior Division, Bicholim, dismissed the application. The petitioner appealed to the District Judge, Mapusa, in Miscellaneous Civil Appeal No. 31/2018, which was dismissed on 17.11.2018. The petitioner then filed the present writ petition under Article 227 of the Constitution.
Acts & Sections
- Constitution of India: Article 227
- Goa Land Revenue Code: Section 105
- Portuguese Civil Code: Article 953
