ORDER
R.K. Batta, J.
1. The petitioner (hereinafter referred to as “the plaintiff) had filed a suit for declaration and permanent injunction in which an application for temporary injunction was filed seeking to restrain the respondent (hereinafter referred to as “the defendant”), from entering and interfering with the suit property under survey No. 3/3, or disturbing possession of the said property, or plucking coconut trees, or removing fruits from the said trees or cutting trees/leaves/branches from the suit property and from doing any construction such as fencing, structures, or wall in the said property. This application for temporary injunction was dismissed by the Civil Judge, Senior Division, Panaji, vide order dated 13th August, 1998, on the ground that the Civil Court had no jurisdiction to grant declaration of tenancy sought by the plaintiff; that the Confraria has not been made party, nor any relief is sought for declaration of Sale Deed in favour of the defendant as null and void; that in view of the Sale Deed, the defendant being owner, is presumed to be in possession of the suit property under Survey No. 3/3; that even though in the plaint it is alleged that the defendant had unloaded two trucks of stones in the suit property, yet though the stones were not removed the plaintiff did not take any further steps and that the pleadings suggest that the defendant has been in possession of the suit property and not the plaintiff.
2. This order of the Civil Judge, Senior Division, was challenged before the District Court and the learned Additional District Judge, Panaji, vide judgment dated 22nd January, 1999, came to the conclusion that at this stage it was not necessary to go into the question of jurisdiction. The learned Additional District Judge came to the conclusion that though the plaintiff has established prima facie case with reference to the suit property, yet the balance of convenience was not in his favour since the plaintiff acquiesced in the act of possession of the defendant as back as 1992, against which no action was taken and that the plaintiff was not likely to suffer any irreparable loss.
3. This order of the learned Additional District Judge is the subject-matter of challenge in this Revision Application. Learned Advocate Shri Ashwin Bhobe argued for the plaintiff and learned Advocate Shri A.R. Kantak, argued for the defendant.
4. Learned Advocate Shri Bhobe argued for the plaintiff that in the year 1987 the committee members of the Confraria tried to interfere with the possession of the plaintiff in respect of the suit property and three other properties, as a result of which the plaintiff had to filed Special Civil Suit No. 210/87/A-D in which the Confraria, its agents, or any other person acting on its behalf were restrained from entering into the suit property. It is further contended by him that the defendant had dumped stones in the suit property and after making enquiries it was learnt that the Confraria had sold the suit property to the defendant and the plaintiff served a notice on the defendant to remove the said stones. According to him subsequently the defendant started excavation in the suit property, as a result of which the suit in question was filed. His submission is that the Confraria could not have sold the suit property in the light of restraint put in Special Civil Suit No. 210/87/A-D and specially it could not have parted with possession of the property, which was with the plaintiff, to the defendant and, as such, any possession claimed by the defendant is totally illegal. He also urged that the defendant who has purchased the property pending Special Civil Suit No. 210/87/A-D, cannot get a better right than the Confraria and the claim put forward by the defendant regarding possession of the suit property has to be rejected.
5. Learned advocate Shri A.R. Kantak on behalf of the defendant urged before me that the lease upon which reliance has been placed by the plaintiff does not mention survey number; that the suit property was claimed by the plaintiff in addition to the properties referred to in the lease; that the defendant has been able to prove the acts of possession in respect of the suit property at least from 1992 against which the plaintiff did not take any action and filed the suit in question only in the year 1997. The learned advocate Shri Kantak vehemently pleaded with me that the defendant may be put to terms since the construction had already reached the stage of casting of the second floor slab. Alternatively, it was also urged by him that the defendant be permitted to remove the centering plates which were put to cast the second floor slab without casting the second floor slab and also to remove the poles and planks supporting the said centering plates.
6. Taking into consideration the rival contentions advanced before me as well as the record and the orders passed by the courts below, as also by Civil Judge, Senior Division, Panaji in Special Civil Suit No. 210/87/A-D, I am of the view that the impugned orders refusing injunction sought by the plaintiff cannot be sustained.
7. Besides declaration, permanent injunction was sought by the plaintiff on the ground that he was in possession of the suit property under Survey No. 3/3. The plaintiff in fact has filed an application for deleting prayers C and D which relate to declaration of tenancy and inclusion of the plaintiffs name in survey records as tenant. The plaintiff claims to be lessee of the Confraria in respect of the suit property under Survey No. 3/3. The plaintiff had filed a suit against the Confraria on account of interference by its members in the suit property wherein he sought temporary injunction. The Civil Judge, Senior Division, Panaji, vide order dated 20th February, 1989 in the said Special Civil Suit No. 210/87/A-D had come to the conclusion that there was prime* fade material on record that the plaintiff was in possession of the suit property. In view of the said conclusion the Confraria, its agents or any other persons acting on their behalf were restrained from entering into the suit property till the suit was finally decided. The suit property which is the subject matter of the said Special Civil Suit No. 210/87/A-D is stated to have been sold vide Sale Deed dated 22nd February 1991 by the Confraria to the defendant. Inspite of the findings of the Civil Judge, Senior Division, Panaji, in Special Civil Suit No. 210/87/A-D filed by the plaintiff against the Confraria, the Confraria in the Sale Deed has stated that the vendor Confraria is in possession of the suit property under Survey No. 3/3. This statement in the Sale Deed is apparently false in view of the order in Special Civil Suit No. 210/87/A-D. The Sale Deed also states that immediate possession was given to the defendant. How possession could be given by the Confraria to the defendant in view of the order of the Civil Judge, Senior Division, Panaji, in Special Civil Suit No. 210/87/A-D is beyond my comprehension. Even if the possession is attempted to be handed over to the defendant, it will be not only illegal, but it may also amount to contempt of the order passed by the Civil Judge, Senior Division, in Special Civil Suit No. 210/87/A-D. The suit property was the subject matter of Special Civil Suit No. 210/87/A-D between the plaintiff and the Confraria and the doctrine of Us pendente would come into play. The defendant, who is the purchaser of the suit property in these circumstances cannot have a better right than the vendor Confraria, who was not in possession of the suit property in view of order passed in Special Civil Suit No. 210/87/A-D. All this material and relevant aspects were totally ignored by the two courts below and undue importance was given to the isolated act of dumping of stones by the defendant into the suit property in 1992, which has been termed by the Civil Judge, Senior Division as an act of possession of the defendant and the Appellate Court has drawn inference from the said act that as no action has been taken by the plaintiff the balance of convenience is not in favour of the plaintiff who has acquiesced to the act of possession by the defendant as back as in 1992. The Appellate Court has come to the conclusion that the plaintiff has established prima facie nexus to the suit property. The manner in which the possession is sought to be handed over by the Confraria to the defendant after executing the Sale Deed shows that it is a clear attempt on the part of the Confraria not only to by-pass the order of the Civil Judge, Senior Division in Special Civil Suit No. 210/87/A-D, but as I have already pointed out, it may also amount to contempt. The defendant could not be put in possession of the suit property and if at all any possession was attempted to be handed over to him, it is illegal in view of the judgment of the Civil Judge, Senior Division in Special Civil Suit No. 210/87/A-D, wherein the Court had come to the conclusion that the plaintiff was in possession of the suit property and had restrained the Confraria, its agents, or any other person acting on their behalf, from entering into the suit property till the suit was finally decided. In these circumstances, the balance of convenience is in favour of the plaintiff and the plaintiff would suffer irreparable loss in case of interference with his right and in his possession of the suit property. In view of the above, the impugned orders refusing to grant injunction sought by the plaintiff before the courts below are required to be set aside.
8. I do not find any merit in the submission of learned advocate for the defendant that the defendant be put to terms. The plaintiff is entitled to injunction sought by him.
9. In the circumstances, the Revision Application is accordingly allowed and the orders of the courts below refusing to grant injunction are set aside. The injunction sought by the plaintiff/petitioner is granted. I am however, inclined to grant the request of learned advocate for the defendant/respondent that the respondent be allowed to remove the centering plates which were put to cast the second floor slab, without casting the slab, as well as the poles and planks supporting the said centering plates. The respondent may intimate the petitioner in advance of the day on which he will carry out the removal of the same. In the facts and circumstance, I would leave the parties to bear their own costs.
10. Revision application allowed.