RAGHU GANESH SHET PARKAR Vs. VINAYAK SAGUN SHET PARKAR
HIGH COURT OF BOMBAY
Raghu Ganesh Shet Parkar
Vinayak Sagun Shet Parkar
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N.M. Jamdar, J. -
(1.) By this Second Appeal, the Appellants-Original Plaintiffs have challenged the judgment and order passed by the learned Additional District Judge, South Goa, partly allowing the appeal arising from the judgment and decree passed by the learned Civil Judge Junior Division, Sanguem Goa. The learned Civil Judge had decreed the suit and directed the Respondents-Defendants to hand over the possession of the suit property and also granted an injunction in favour of the Appellants. The learned District Judge, by the impugned Judgment and decree declared that the Appellants-Plaintiffs and the Respondents-Defendants were occupying and holding the property as shown in the exhibit specified and that the Appellants-Plaintiffs and the RespondentsDefendants are both restrained from interfering with each others possession, and set aside the decree directing handing over the possession. Being aggrieved, the original Plaintiffs have filed the present Second Appeal.
(2.) The Appellants filed a Special Civil Suit No.18 of 1978 in the Court of Civil Judge Senior Division, Quepem on 9 October 1978. It was the case of the Appellants that in the year 1912, the then Government had issued a grant known as 'Aforamento' to Ganesh Parkar. The grant was for a land identified in the plan annexed to the plaint, which as of today is known as survey no.19/1 of Village Camarconda, Sanguem Taluka. The Government subsequently transferred the grant to the original Plaintiff No.1 Raghu, the son of Ganesh Parkar. According to the Appellants, the Respondents-Defendants were allowed to erect their residential houses since they did not have any shelter and they were distantly related. It is further the case of the Appellants that after the tenancy legislation was brought into force, the Respondents started interfering with the possession. The proceedings under Section 145 of Criminal Procedure Code were initiated and culminated in favour of the Appellants in the year 1973. According to the Appellants, inspite of this position, the Respondents interfered with the possession of the Appellants in respect of the suit property. It was the contention of the Appellants that the Respondents have no right, title in the suit property. On these averments, the Appellants filed a suit for recovery of possession and for an injunction.
(3.) The Respondents-Defendants filed their written statement and contended that the property given as Aforamento to Ganesh was not for himself alone, but as a representative of the family. It was contended that by a mutual understanding, a peaceful division of the property had taken place. Right from the year 1940, the Respondents were in possession of the suit property.
It was contended that the Respondents have a right of ownership in respect of the houses and it is not correct that they only have right to reside. It was contended that the Appellants are not entitled to the relief of permanent or temporary injunction in view of the long standing possession of the Respondents, which was peaceful, continuous and open. The allegation that the Respondents tried to disturb the possession of the Appellants was denied. On these and other grounds the Respondents resisted the prayers made by the Appellants.;
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