JUDGMENT
M.L. Pandse, J.
1. This appeal is preferred by original plaintiff in Special Civil Suit No. 380/87/A to challenge order dated September 22, 1988 passed by Civil Judge, Senior Division at Mapusa rejecting the application filed by the plaintiff for grant of temporary injunction pending the suit. The plaintiff prays that the defendants should be restrained from disturbing the plaintiff’s possession of the suit property.
2.The properties in dispute are two in number and are described as Property ‘A’ and Property ‘B’. Property ‘A’ known as ‘Esmolachem’ is situated in the village of Calangute and described in the register under No. 1717. The property consists of a house and coconut garden. Property described as suit property ‘B’ consists of a house and a coconut tree. The area covered by the coconut tree has been acquired in Land Acquisition proceedings. Both these properties originally belong to one Shrinivasa Duclo. Shrinivasa died in the year 1925 and property ‘A’ was allotted to his son Mucunda in Inventory Proceedings. Mucunda’s wife was one Laxmibai. Mucunda died in the year 1951 and in inventory proceedings after his death property ‘A’ was allotted to share of Laxmibai in the year 1952. In the year 1956 property ‘A’ was put to public auction in view of the default committed by Laxmibai in payment of dues. The property was purchased by Manuel Coelho in the year 1957 in auction. Manuel died in the year 1963 and thereafter his son Caetano became the owner of the property. Caetano sold suit property ‘A’ to the plaintiff by sale deed on June 30, 1987.
3.After the death of Shrinivasa property ‘B’ was allotted to his daughter Gopicabai in inventory proceedings in the year 1925. Gopicabai married one Lawande and afterwards died in the year 1946. Thereafter property ‘B’ went to the legal representatives of Gopicabai that is her husband and her children. The plaintiff purchased the property ‘B’ from Lawandes by sale deed on August 24, 1987.
4.The plaintiff instituted suit on September 7, 1987 for a declaration that the gift deeds dated January 20, 1982 and March 12, 1985 under which the defendants are claim in title to suit properties are null and void and for cancellation of the same. The plaintiff also sought permanent injunction restraining the defendants from disturbing the plaintiff’s possession of suit property. The gift deed dated January 20, 1982 is executed by Laxmibai widow of Mucunda in favour of her grandson in respect of half share in suit property ‘A’. Gift deed dated March 12, 1985 is executed by legal representatives of Laxmibai in favour of the defendants in respect of half share of suit property ‘A’ and suit property ‘B’. Laxmibai died on February 24, 1935 and the defendants are claiming title to the suit property on the strength of these two Gift Deeds. The defendants also claim that alternatively they are in adverse possession of the suit properties for a period of over 30 years. With these pleadings it is now necessary to examine whether the plaintiff is entitled to seek interim injunction restraining the defendants from disturbing his possession.
5.The trial Judge declined to examine whether defendants have even a prima facie title to the suit properties. It seems that the trial Judge addressed himself to the question as to whether the plaintiff was in exclusive possession of the suit properties and did not give any importance to the question as to whether the defendants had any title to remain in occupation of the property. It is not correct to approach the problem by merely examining the affidavits to determine whether plaintiff or the defendants are in possession and it is necessary that the Court must examine whether the person who is claiming possession of the property has got a title of title to remain in possession . The trial Judge held that survey records of the two properties stand in the name of Mucunda and Shrinivasa respectively and Mucunda and Shrinivasa were predecessors of the defendants, and therefore the defendant’s claim that they are in possession can be presumed unless refuted by the plaintiff. In my judgment the approach of the trial Judge is completely defective. The facts set out hereinabove leave no manner of doubt that whatever title Laxmibai had in suit property ‘A’ stood extinguished by holding of public auction in the year 1956 and when Laxmibai’s title extinguished she had no subsisting interest to transfer by gift deed in favour of her grandson, at the time of her death. The second gift deed executed by her daughters is equally ineffective. As regards the property ‘B’ the same was allotted to Gopicabai in the year 1926 and as inherited by her legal representatives Lawandes in the year 1946. It is difficult to appreciate how Laxmibai or her legal representatives could have ever gifted this property ‘B’ in favour of the defendants. It is therefore obvious that prima facie the title set up by the defendants on the strength of gift deeds is misconceived. It was strenuously urged by Mr. Mulgaonkar, learned Counsel for the defendants, that the auction in favour of Manuel was void as the auction was conducted fraudulently. It is not possible at this stage to acceds to the submission for more than one reason. In the first instance the auction held in 1956 was never challenged by Laxmibai during her life time. Secondly the period of limitation to challenge the auction stands expired by passage of time and it is not permissible to question the auction by filing a written statement in a suit filed in the year 1987. Prima facie therefore the conclusion is inescapable that the defendants have no title to remain in possession of both the suit properties.
Mr. Mulgaonkar submitted that the defendants have raised an alternative plea of adverse possession of the two properties for a period over 30 years. The plea as regard property ‘A’ is destructive of the plea that the defendants are owners of the property on the strength of gift deeds. Learned Counsel is unable to point out any documentary evidence to substantiate the claim of adverse possession for the period subsequent to the date of auction. No material was pointed out to even indicate that the defendants were claiming adversely property ‘B’ involved in the suit. The plaintiff is claiming title to the suit properties under registered documents and the sale deeds are obtained from persons who were owners of the property. Prima facie the plaintiff’s title stands established while the defendants discarded.
6.Mr. Mulgaonkar submitted that even assuming that defendants have no title to the suit properties still the order of refusal of injunction passed by trial Court could be sustained because the trial Judge has recorded a finding that plaintiff has not established exclusive possession to the properties. On perusal of the judgment it is not possible to sustain the finding of the trial Court that the plaintiff has not established possession of the suit property. On July 13, 1987 defendants filed suit against Gajanan Raikar who is occupant of house property situated in suit property ‘A’. The suit claims injunction against Raikar from disturbing the possession of the defendants and that claim was turned down by the trial Court on the strength of finding that the defendants were not in possession of house in property ‘A’. The trial Judge declined to accept the affidavit of Castono Coelho the vendor of the suit property ‘A’ in favour of the plaintiff on the ground that he is an interested witness. It is difficult to appreciate how the claim of Castano could be rejected when Castano had inherited the property which his father had purchased in auction in the year 1956. The trial Judge held that the plaintiff did not file any affidavits of the pluckers to whom the coconuts were sold in order to prove possession. Non-filing of affidavit is not fatal to the claim of the plaintiff that he is in occupation of the property in pursuance of the sale deed. The trial Judge also felt that the bailiff’s report in the suit filed by the defendants indicated that the plaintiff was not in exclusive possession. Mr. Kakodkar learned Counsel for the plaintiff submitted that the trial Judge has misread the report of the bailiff and it does not in any manner indicate that the plaintiff was not in possession. Reference was made by the trial Judge to the fact that name of Laxmibai appeared in Electoral Roll as residing in the house in suit property ‘A’. In my Judgment it is impossible to conclude from this fact that Laxmibai was in possession and that the plaintiff never got possession in pursuance of two sale deeds. The approach of the learned trial Judge in declining the relief to the plaintiff is not correct and the trial Judge should not have ignored the fact that the plaintiff was prima facie title holder of the suit properties. In these circumstances the order of the trial Judge declining to grant temporary injunction in favour of the plaintiff cannot be sustained.
Accordingly appeal is allowed and judgment dated September 22, 1988 passed by Civil Judge, Senior Division, Mapusa is set aside and plaintiff’s application for injunction is granted. The defendant No. 1 and his servants and agents are restrained disturbing plaintiff’s possession of the suit properties. In the circumstances of the case parties shall bear their respective costs. Civil Application No. 190/88 does not survive in view of the Judgment.