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Rama Shanu Naik Dessai v/s The Director, Goa State Urban Development Agency & Others


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Company & Directors' Information:- R K URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC223591

Company & Directors' Information:- A & N AGENCY PRIVATE LIMITED [Under Process of Striking Off] CIN = U51909TN2003PTC052088

Company & Directors' Information:- A E AGENCY PRIVATE LIMITED [Active] CIN = U65993TN2000PTC044931

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Company & Directors' Information:- S B M AGENCY PRIVATE LIMITED [Active] CIN = U51504TN2004PTC052953

Company & Directors' Information:- A. B. URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U70100MH2015PTC267677

Company & Directors' Information:- M P S AGENCY PVT LTD [Active] CIN = U51109WB1998PTC088149

Company & Directors' Information:- A. G. AGENCY PRIVATE LIMITED [Strike Off] CIN = U51109DL2008PTC186212

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    Appeal From Order No. 45 of 2018

    Decided On, 18 December 2019

    At, In the High Court of Bombay at Goa

    By, THE HONOURABLE MS. JUSTICE NUTAN D. SARDESSAI

    For the Appellant: Nitin Sardessai, Senior Advocate with G. Panandikar, Advocate. For the Respondents: R1, Sapna Mordekar, R2, Priyanka Kamat, Additional Government Advocate, R3, J.P. Supekar with Shri S. Sayed, R4, P. Fadte, R5, S.D. Lotlikar, Senior Advocate with J. Karn, R6, A.A. Agni, Senior Advocate with J. Sawaikar, Advocates.



Judgment Text


1. Heard forthwith with the consent of the learned Advocate for the parties.

2. Admit.

3. Shri Sapna Mordekar, learned Advocate waives service on behalf of the respondent no.1, Shri Pryanka Kamat, learned Additional Government Advocate waives service on behalf of the respondent no.2, Shri J.P. Supekar, learned Advocate waives service on behalf of the respondent no.3, Shri P. Fadte, learned Advocate waives service on behalf of the respondent no.4, Shri J. Karn, learned Advocate waives service on behalf of the respondent no.5 and Ms. J. Sawaikar, learned Advocate waives service on behalf of the respondent no.6.

4. This appeal from order takes exception to the order dated 11/10/2018 passed by the Principal District Judge, South Goa, Margao pursuant to which the learned District Judge dismissed the application for injunction filed by the appellant/plaintiff in a suit for injunction against the respondent/ defendants. The parties would be referred to as the appellant and the respondents for brevity's sake hereinafter.

5. The appellant had carved a case that he was the co-owner of the property bearing Survey no.435/1 of village Cuncolim corresponding to Land Registration no.6202. He had noticed the work of alignment being carried out in the suit property in order to undertake construction and on enquiry learnt that it was the respondent no.1 through its contractor that had taken up the construction work of the crematorium project for and on behalf of the respondent no.4 and for the benefit of the respondent no.5 thereby constraining the appellant in filing the suit and claiming the relief of injunction. 6. Heard Shri Nitin Sardessai, learned Senior Advocate on behalf of the appellant who contended at the outset that the respondent no.1 had given a contract for the crematorium for the respondent no.4 in the appellants property without acquisition precipitating the suit for injunction. Earlier an area of about 8575sq.mts. was acquired for the construction of the Police Station and the staff quarters and in that case one Coutinho had succeeded in establishing his claim. The property bearing Survey no.435/1 corresponding to the land registration no.6202 was admittedly of the plaintiff. The dispute was whether the land bearing registration no.6202 corresponds to the Survey holding 435/1. At another point of time another area was acquired from the property bearing Survey no.435/1 for the irrigation project and in the Land Acquisition case no.136 of 1990 one Moraes had succeeded in establishing his claim to it. A civil suit was filed by the appellant being 255/1990 against Chari in which no Court Commissioner was appointed and the suit was ultimately dismissed.

7. Shri N. Sardessai, learned Senior Advocate adverted to the pleadings in the plaint and the supporting documents of land registration, the Deed of Partition and submitted that he had no objection to the area demarcated in the plan for the cremation of the bodies which was depicted in green lines covering an area of about 630sq.mts. There was an error by the learned District Judge in passing the order as he did dismissing the application for injunction and therefore, it was a fit case to allow the appeal and to secure the appellant with the order of injunction. 8. Shri S.D. Lotlikar, learned Senior Advocate for the respondent no.5 submitted at the outset that the appellant had not at all sought the relief of declaration but only that of injunction simpliciter. The Record of Rights were not in favour of the appellant. A reading of the plaint viz a viz the Record of Rights would show that the appellant was not in possession of the suit property. Moraes was not made a party to the suit who had sought to intervene therein. There was no equity in favour of the appellant and for suppression, he was not entitled to any equitable relief of injunction. The earlier suit filed against Chari was dismissed and so too the appeal filed by the appellant and therefore there was a finality on the issue of the title of the appellant. The plaint was totally silent on the details of the claim of the appellant to the first addition or the second addition and there was no clarity on the area where the burning was done. The appellant had not at all made out a prima facie case and therefore no injunction could be granted in his favour. 9. There was no dispute that the property was used as a crematorium but the appellant had not established his right to the same. The balance of convenience was also not in favour of the appellant nor would he suffer irreparable loss or injury and therefore no case was made out for interference and the appeal had to be dismissed. The appellant had claimed a right to the suit property but had failed in view of the judgments of the two Civil Courts and which had attained finality. There was a serious cloud on the title of the appellant and therefore considering the judgment in Anathula Sudhakar v/s. P. Buchi Reddy(dead) by Lrs. and others [(2008) 4 SCC 594], he ought to have sought for the relief of declaration. No case whatsoever was made out for interference and the appeal had to be dismissed. 10. Ms. A. Agni, learned Senior Advocate for the respondent no.6 adverted to the orders of the Inspector of Survey and Land Records dated 30/04/2010 and submitted that the Survey Records were not in the appellant's favour. The order was under challenge in appeal since 2013 which fact was not disclosed by the appellant and therefore, it was a case of clear suppression. It was her contention that the respondent no.6 was the co-owner of the property bearing Survey no.435/1 which originally belonged to Frank Moraes and his wife bearing Land Registration no.11223 and that they had issued no objection to the respondent no.5 for development and renovation of the crematorium in the public interest in the suit property 453/1 in view of their long standing possession and use of the property as a crematorium. The respondent no.6 has been declared to be the owner of the property in Survey no.435/1 and there are proceedings between the respondent no.6 and the appellant which had been suppressed by the appellant while filing the suit against them. 11. The Inspector of Survey has given a clear findings that the appellant was not entitled to get his name incorporated in the Survey records and directed that the Survey no.435/1 be promulgated by deleting the existing names in Form III and the name of the respondent no.6 to be incorporated in the Survey Records particularly in Form I and XIV to be promulgated accordingly. The property bearing Survey no.435/1 admeasuring 183000 sq.mts. was classified under the Bharad category and they had been declared as the owners in possession in the Civil Suit No.158/1987 for declaration and injunction. This suit was initially dismissed but thereafter in appeal vide the judgment and Decree dated 31/10/2012, the suit had been decreed and they had been declared as the owners in respect of the suit property bearing Survey no.435/1. They had also relied upon the Registration Certificate of the property bearing no.11223 clearly indicating that they were the owners of the suit property no.435/1. 12. The District Judge in the Land Acquisition Case no.136/90 to which the appellant was a party respondent held that the property bearing Survey no.435/1 is a part of the property of the respondent no.6 bearing Land Registration no.11223. The District Court had also considered the Land Registration documents of the appellant bearing no.6202 and held that the property under Survey no.435/1 did not correspond to the property of the appellant bearing Land Registration no.6202 but correspond to the land bearing Registration no.11223 belonging to the respondent no.6. It was her contention therefore that on account of this non-disclosure by the appellant, the appeal was also liable for dismissal. She placed reliance in Vassudev Nene and another v/s. Dattatraya Raghunath Jog [1999(2) Goa L.T.108]. Although the appellant placed reliance in the Award of the Land Acquisition Case No.68 of 1988, but the appeal was still at large. There was a suppression of the Suit no.299 of 2014 filed by the respondent no.6 against the appellant. She placed reliance in Seema Arshad Zaheer and others v/s. Municipal Corpn. Of Greater Mumbai [(2006) 5 SCC 282], Ramesh Chand and other v/s. Tanmay Developers Pvt. Ltd. And others [(2017) 13 SCC 715] and further submitted that there was a clear discrepancy in the Record of Rights showing the land as a Bharad unlike the case of the appellant that it was a plantation of coconut trees. Ultimately, it was her contention that no case had been made out by the appellant and therefore the appeal had to be dismissed. 13. Shri J. Supekar, learned Advocate for the respondent no.3 submitted that there was undisputedly a crematorium existing at the site. A contract was awarded in their favour on 14/02/2018 and to complete the construction within 12 months. He assured that no construction would be done beyond the plinth. Ms. Mordekar, learned Advocate for the respondent No.1 submitted that the construction could be continued for the use of the crematorium while Ms. P. Kamat, learned Additional Government submitted that she has no submissions to make.

14. Shri Nitin Sardessai, learned Senior Advocate submitted that the land could not have been given for the construction of the crematorium only on the basis of NOC without the acquisition of the land. Insofar as the objection of the suit being filed by one of the co-owner, it was his contention that any one of the co-owners could file a suit for injunction and it was not necessary that all the co-owners were required to be added to the proceedings. Insofar as the suppression of documents was concerned, it was his contention that the construction was done by the respondent no.1 on the basis of the NOC issued by the respondent no.6 which was not in the public domain. Even assuming without admitting that there was a suppression, it did not defeat the appellant's case. It was also his contention that the dismissal of the suit against the respondent no.5 only bound the appellant in terms of Section 35 of the Special Relief Act. He further placed reliance in Ramesh Chand(supra) while later placing reliance on Razia Begum v/s. Sahebzadi Anwar Begum and others[AIR 1958 SCC 886] to buttress that resjudicata is not applicable and that it is not a judgment in rem. He also distinguished the judgment in Anathula(supra) by placing reliance in Muddasani Venkata Narsaiah v/s. Muddasani Aroiana [(2016) 12 SCC 288] and submitted that the appeal be decided accordingly.

15. Ms. A. Agni, learned Advocate for the respondent no.6 met the contention on behalf of the appellant insofar as the reliance on these judgments were concerned and submitted her synopsis distinguishing the same and once again placing reliance in Anathula (supra) and pressing for the dismissal of the appeal. I would consider their submissions, the judgments relied upon and in view thereof decide the appeal accordingly.

16. The point which would arise for consideration is whether prima facie the appellant had established his right to the suit property surveyed under no.435/1 and possession thereto apart from the irreparable loss and injury caused to him and the balance of convenience being tilted in his favour as to secure him with the interim relief in his favour. Although, it is the case of the appellant that earlier land was acquired from Survey no.435/1 for the construction of the Police Station and staff quarters in 1988, it is not in dispute that on account of the title dispute in respect of the acquired portion of the land, reference was made under Section 30 of the Land Acquisition Act before the District Court being Land Acquisition Case No.68/1988. No doubt the Reference Court held vide its judgment and award dated 30/01/2004 that the parties no.1, 2 and 3 in the said case were entitled to the compensation. The appellant was aggrieved by the said judgment and preferred an appeal being First Appeal no.88 of 2004 and pursuant to the judgment of this Court dated 15/02/2013 the same was quashed and set aside ordering a remand of the Land Acquisition Case to the District Court with a direction to appoint a Commissioner to identify the property bearing Survey no.435/1. The learned District Judge on complying with the judgment of this Court appointed a Court Commissioner and after perusing the report prepared by the Commissioner and after recording evidence and hearing the parties by its judgment dated 16/04/2016 held that the appellant had succeeded in proving that the property bearing Survey no.435/1 is inherited by him alongwith the other co-owners and thereafter entitled to the entire possession. However, it is an admitted position that the said matter is at large before this Court in First Appeal No.52 of 2016 and therefore, it cannot be heard on behalf of the appellant that there is clarity of his suit property 435/1.

17. However, on his own admission, his attempt also to get his name recorded in the Survey Records of 435/1 was rejected and which matter is at large pending adjudication before the Superintendent of Survey and Land Records. To that extent too the appellant cannot be said to have established his right to the suit property 435/1 of village Cuncolim. Moreover, there was another acquisition in the year 1990 pertaining to the suit property 435/1 and in view of the rival claims, a reference was made to the District Court in the Land Acquisition Case no.136 of 1990. The District Judge vide its judgment and award dated 27/02/2004 had decided the Land Acquisition Case in favour of one Frank Moraes and his family and against the appellant herein and which is the subject matter of the appeal pending before this Court in First Appeal No.89 of 2004. The appellant had filed a Regular Civil Suit no.255 of 1990 raising a claim over the Survey no.435/1 claiming co-ownership which was declined by the civil Court vide its judgment and order dated 28/09/2001. He had challenged the same in appeal and the appellate Court had also dismissed the appeal thereby confirming the judgment of the Trial Court. It is not in dispute that this judgment had attained finality in the absence of any challenge by the appellant thereby bringing the curtain over the fact that the appellant had failed to establish his title claim to the property bearing Survey no.435/1 and more particularly to establish that it corresponds to the Land Registration no.6202. Therefore to all intents and purposes, the claim of the appellant to the suit property 435/1 does not at all stand proved in the face of the clear findings of the Civil Court against him.

18. In Razia Begum (supra), the Court was concerned with the order passed under Order I Rule 10 CPC allowing the intervention of the respondent nos.1 and 2 to the proceedings. This judgment is of no assistance to the appellant as it does not support the proposition canvassed on his behalf that in terms of Section 35 of the Specific Relief Act, the decision would be binding in between the parties and would not bind the appellants viz a viz the other parties.

19. Anatulla (supra), clearly held that where a plaintiff's title is under a cloud and he does not have possession, the remedy is by way of a suit for declaration and possession, with or without consequential injunction. Where the plaintiff's title is not disputed or under a cloud but he is out of possession, he has the remedy to file a suit for possession with consequential injunction. The third alternative is where there is merely an interference with the plaintiff's lawful possession or there is a threat of dispossession, suit for an injunction simpliciter is sufficient. In the instant case, the appellant has failed to show his title to the suit property. Moreover, it has been clearly shown by the respondent no.6 in particular that there is a serious cloud over the title of the appellant to the suit property and in such circumstances a suit for declaration is necessary and not one for injunction simpliciter.

20. Muddasani(supra), held that a suit for possession of immovable property can be filed without a prayer for declaration of title where there is no serious cloud over the plaintiff's title. The judgment however does not substantiate the appellant's case and quite on the contrary goes in line with the judgment in Anathula(supra), where there is a cloud over the title of plaintiff, then the suit for declaration would be eminent.

21. Vassudev Nene (supra), held that a party has to approach the Court with clean hands and should not suppress any material fact or document, otherwise he or she cannot seek the indulgence of the Court for any equitable relief. It also reiterated the proposition that the person seeking injunction has to establish that the possession can be related to some right or title to the suit property. In other words, to obtain the relief from the Court such possession has to be lawful possession.

22. Seema Zaheer(supra), culled out at para 30 that discretion of the Court is exercised to grant a temporary injunction only when the following requirements were made out by the plaintiff.

“30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands.”

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> 23. It is therefore seen from the material on record that the Survey Records are not in the name of the appellant nor any documents corresponding to the title. Quite on the contrary, it is shown from the material on record that the appellant had failed to establish his title and possession to the suit property 435/1 and that it corresponds to the Land registration no.6202 in the suit and subsequently upheld in the judgment of the District Court dismissing the appeal, there being finality to the proceedings on the issue of the title in the absence of any further challenge at the instance of the appellant. 24. The learned District Judge upon hearing the parties had duly considered the case of the appellant before him and rightly come to a conclusion that he had failed to establish a prima facie case while observing that the suit property originally belonged to Frank Moraes and having a different Land Registration number. The learned District Judge had also found that the balance of convenience was not tilted in favour of the appellant and therefore no loss much less irreparable loss was likely to be suffered by the appellant in case the relief of injunction was declined to him. Rather, it must be said that the Trial Court had held that the Civil Suit decided by the Margao Court was clearly against the appellant and which had been confirmed by the District Court and there was no further appeal filed by the appellant against it. It also held that the appellant had failed to establish his title of co-ownership over the suit property and more particularly Survey no.435/1. The balance of convenience too was not in his favour and on that premise had held that there was no basis in granting the relief of injunction and dismissed the same. This order passed by the learned District Court does not warrant any interference in an appeal being an appeal in principle and therefore, i pass the following: ORDER The appeal from order is dismissed with no order as to costs.
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