Case Note & Summary
The present appeal arises from an order dated 26/3/2018 passed by the learned Ad-hoc District Judge-I, FTC, Mapusa, dismissing the application for temporary injunction filed by the original plaintiffs (appellants herein) against the State of Goa and the Executive Engineer, Water Resource Department (respondents). The plaintiffs, Edgar Melo Furtado and Thomas Aquina Pereira, claimed to be co-owners of suit properties bearing Survey No.76/1-B2 admeasuring 8102 sq.mts. and Plot No.'A' admeasuring 17100 sq.mts., part of a larger property known as 'Odlem Sorgul' situated at Pilerne. Their names were recorded in the survey records as co-owners. The plaintiffs alleged that the defendants, without any lawful authority, attempted to construct a road over the suit property and threatened to interfere with their possession. They filed a suit for permanent injunction and sought temporary injunction under Order 39 Rules 1 and 2 CPC. The trial court dismissed the injunction application, holding that the plaintiffs failed to establish prima facie case and balance of convenience. Aggrieved, the plaintiffs filed the present appeal under Order 43 Rule 1 CPC. The High Court heard the matter with consent of both parties. The court examined the documentary evidence, including survey records and photographs, and found that the plaintiffs had made out a strong prima facie case of possession and title. The court noted that the trial court had not properly appreciated the material on record and had erroneously concluded that the plaintiffs were not in possession. The balance of convenience was in favour of the plaintiffs as they would suffer irreparable injury if the defendants were allowed to proceed with construction. The High Court allowed the appeal, set aside the impugned order, and directed the parties to maintain status quo in respect of the suit property until the disposal of the suit. The court also directed the trial court to expedite the hearing of the suit.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - The plaintiffs, claiming to be co-owners of the suit property, sought injunction to prevent the defendants from constructing a road and interfering with possession. The trial court dismissed the application without properly considering the plaintiffs' documentary evidence of possession and title. Held that the plaintiffs had made out a prima facie case and the balance of convenience was in their favour, warranting grant of temporary injunction (Paras 5-10). B) Civil Procedure - Appeal from Order - Order 43 Rule 1, Code of Civil Procedure, 1908 - The appeal was filed against the order of the Ad-hoc District Judge dismissing the injunction application. The High Court found that the trial court had not applied its mind to the material on record and had erroneously concluded that the plaintiffs were not in possession. Held that the appeal was maintainable and the impugned order was liable to be set aside (Paras 4, 11-12). C) Property Law - Co-owner Rights - Possession - The plaintiffs, as co-owners, were entitled to maintain possession against strangers including the State. The defendants failed to show any lawful authority to enter upon the suit property. Held that the plaintiffs had established a strong prima facie case of possession and title, and irreparable injury would be caused if injunction was not granted (Paras 5-9).
Issue of Consideration
Whether the trial court was justified in dismissing the application for temporary injunction filed by the plaintiffs seeking to restrain the defendants from interfering with their possession and from constructing a road over the suit property.
Final Decision
The High Court allowed the appeal, set aside the order dated 26/3/2018 passed by the Ad-hoc District Judge-I, FTC, Mapusa, and directed the parties to maintain status quo in respect of the suit property until the disposal of the suit. The trial court was directed to expedite the hearing.
Law Points
- Temporary injunction
- prima facie case
- balance of convenience
- irreparable injury
- Order 39 Rules 1 and 2 CPC
- Order 43 Rule 1 CPC
- possession
- co-owner rights
- status quo
