MAHADEV PARSEKAR Vs. EDUARDO SIMAO DCOSTA

JUDGEMENT

(1.) HEARD Shri D. Pangam, learned Counsel appearing for the petitioners and Shri S. Usgaonkar, learned Counsel appearing for the respondents. The above writ petition challenges the order passed by the learned Courts below whereby the application for temporary injunction filed by the respondents in Regular Civil Suit No.27/2006 was allowed and the petitioners, inter -alia, were restrained from interfering, trespassing, intimidating or doing any other act of trespass or acts of dispossession of the respondents of whatsoever nature in the suit property.

(2.) SHRI D. Pangam, learned Counsel appearing for the petitioners has essentially assailed the impugned judgment on the ground that there is no definite finding arrived at by the Courts below to the effect that the respondents were in possession of the suit property. The learned Counsel has further pointed out that the petitioners are in possession of the suit property and according to him such possession cannot be disturbed at this stage on the basis of the impugned order. The learned Counsel further pointed out that there is a house which is existing in the suit property which according to him was in occupation of the petitioners. The learned Counsel has taken me through the judgment passed by the Courts below and pointed out that the learned Courts have erroneously appreciated the evidence on record and have come to an erroneous conclusion that the respondents are entitled for the temporary injunction as prayed for in the suit. The learned Counsel, as such, pointed out that the impugned order deserves to be quashed and set aside. The learned Counsel further pointed out that in case the impugned order is allowed to stand, the respondents shall have a free hand to change the nature of the suit property and create third party right therein to the detriment of the interest of the petitioners in the suit property.

(3.) HAVING heard the learned Counsel for both the parties and on perusal of the records, I find that the grievance of the petitioners is essentially that the Courts below have not given categorical finding that the respondents were in possession of the suit portion of the property. But however, on perusal of the impugned judgment and specially the judgment of the Appellate Court it has been held therein after appreciating the evidence on record that the respondents have succeeded to prove that they are in possession of the suit property. The learned Counsel appearing for the petitioners was unable to point out any piece of evidence produced by the petitioners which has not been considered by the Courts below to arrive at such findings. Whiles considering the material on record, the learned trial Judge whiles passing the order dated 28/11/2007 has found that the petitioners who claimed to have produced the sketch of the area in their possession have failed to produce such sketch but only the survey plan in respect of the entire Survey No.91/0. The learned Judge has also found that there was a shack in the suit portion of the property which stands in the name of the respondents. The said finding has been arrived at on the basis of the house tax receipts and the NOC's issued by the Village Panchayat. The learned Judge has also noted that the petitioners have failed to establish any act of possession in respect of the suit portion of the property. The learned Additional District Judge has considered the evidence on record and has come to a categorical finding that the respondents are in possession of the suit property. The said findings by the learned Appellate Court has been arrived at after considering all the documents adduced by both the parties. The respondents have also produced a document dated 19/09/1965 which is stated to be executed by the owner of the property establishing inter alia that an area of 1000 square metres was given to the respondent no.1 on account of the fact that he was cultivating nachni, paddy and other cereals therein. Considering all the aforesaid evidence, I find that Courts below have given a categorical finding that the respondents have prima facie established that they are in possession of the suit portion of the property.