Nutan D. Sardessai, J. - (1.) The petitioners have taken exception to the legality and propriety of the order dated 22/07/2015 passed by the Executing Court dismissing the application for police protection as also the order dated 08/02/2016 passed by the Civil Judge Junior Division, Sanguem in this petition under Article 227 of the Constitution of India.
(2.) Shri S.D. Lotlikar, learned Senior Advocate came to be heard on behalf of the petitioners who submitted that the suit filed by the petitioners against the respondents for injunction came to be decreed in their favour by the judgment and decree dated 26/11/1997 and pursuant to which the then Senior Civil Judge, Quepem observed at paragraph 7 that unless and until the respondents acquired the surface rights over the suit properties, their acts even under the garb of mining activities would amount to the acts of trespass and illegal interference and in that view of the matter restrained the respondents from trespassing and interfering in the suit property apart from other reliefs and costs. However, the learned Junior Civil Judge, Sanguem vide the impugned order dated 08/02/2016 dismissed the execution proceedings. The said judgment had considered the written submissions filed on behalf of the petitioners, the plea of the respondents that subsequent to the decree dated 26/11/1997, the Agreements were executed between them consequent to which whatever rights had accrued in favour of the petitioners pursuant to the decree were waived and acknowledging the rights of interference of the respondents in the property. The learned Judge had further recorded in the impugned order that the respondents consequent to the execution of the Agreement in July,1999 entered into the suit property which was the subject matter of the execution proceedings in the capacity of holder of mining concession / lease for carrying out mining operations and on an interpretation of the said Agreements the learned Judge concluded that the petitioners subsequent to the passing of the decree had assigned their interest in the subject matter forming a part of the decree in question and in that view of the matter dismissed the execution proceedings as not maintainable.
(3.) It was the further contention of Shri S.D. Lotlikar, learned Senior Advocate for the petitioners that no Agreement was entered into for assignment and yet the learned Trial Court clearly held to the contrary. In the absence of acquisition of any surface rights by the respondents, their entry in the suit property tantamounted to an act of trespass. There was a clear non-application of mind in passing the impugned order which was in excess of jurisdiction and hence the petition had to be allowed.;