ORDER
R.M.S. Khandeparkar, J.
1. This is a revision application against the Order dated 30th April 1997 passed by the District Judge, South Goa, Margao in Miscellaneous Civil Appeal No. 24 of 1997. By the impugned Order the lower Appellate Court has allowed the appeal filed by the respondent herein against the Order of the trial Court dated 28th February, 1997 passed in Civil Miscellaneous Application No. 55/96 in Regular Civil Suit No. 22/96.
2. Upon hearing Shri D. Pangam the learned Advocate appearing for the petitioners and on perusal of the entire records placed before me, it is seen that the respondent herein filed a civil suit being Regular Civil Suit No. 22/ 96 in the Court of Civil Judge, Senior Division, Vasco for permanent injunction to restrain the appellants from interfering in any manner in the open space situated in the property ‘Voll’, bearing Survey No. 87/5 in the village of Cortalim and belonging to the respondent. It was the contention of the respondent that the petitioners upon trespass in the said open space of the suit property on 21st April, 1996 started digging a pit and that it was learnt by the respondent that the petitioners were planning to raise a fence around
the said open space and to erect a pandal cum stage for sitting arrangement for the public gathering for the purpose of social, cultural and religious activities. On such apprehension, the said suit was filed alongwith an application for temporary injunction with a prayer for ex parte relief. On the other hand, it was the case of the petitioners that there is a cross in existence in the said open space/land and the annual feast is being celebrated by the villagers in the said open space on every first day of May of every year for the period of last 40 years and for that purpose there is an Association of Villagers called as “Sociedade de Santa Kuris”. It is the case of the petitioners that they have been celebrating this feast by erecting necessary pandal and making necessary arrangement for providing all the necessary facilities to the people gathering for such feast every year on 1st May without any obstruction or objection from the respondent. The trial Court on analysis of the entire materials on record found that the respondent had suppressed the fact of existence of the cross and celebration of its annual feast in the said open space by the villagers. The trial Court also found that the documentary evidence produced by the petitioners clearly disclose that such feast was being celebrated for the last about 40 years without any objection from the respondent. Moreover, the trial Court found that there was no dispute as far as ownership of the land was concerned and that it belonged to the respondent. The trial Court, therefore, partly allowed the application and the petitioners and their agents were restrained from constructing any permanent structure in the open space. As far as other reliefs were concerned, the same were rejected by the said Order dated 28th February, 1997. The respondent herein preferred an appeal being Miscellaneous Civil Appeal No. 24/97 before the District Judge and the same was heard and disposed of by the impugned Order. The, lower Appellate Court on the ground that the possession and enjoyment of the open space by the respondent being not disputed and in view of the fact that the entries in the record of right disclose the properly to be in occupation of the respondent, held that petitioners have not been able to produce any cogent evidence to rebut the presumption arising from the said entry in the record of rights in respect of the suit property. Simultaneously, the District Court also observed that the respondent had admitted that he had allowed the villagers to offer prayers to the Holy Cross existing in the said suit open space and to celebrate the annual feast and therefore, the lower Appellate Court while allowing the appeal, confirmed the relief of temporary injunction granted by the trial Court as well as further restrained the petitioners from erecting even pandal or stage in the suit open space but permitted them to arrange the chairs in the open space only for the feast for the year 1997.
3. Indeed as rightly submitted by the learned Advocate for the petitioners the suppression of the relevant facts regarding the existence of the cross and annual celebration of feast on every 1st of May by the petitioners at the time of filing of the suit was itself sufficient for denial of equitable relief to the respondent. Moreover the petitioners have fairly conceded that the property belongs to the respondent though the open space therein has been annually used for the purpose of celebration of the feast by the villagers and for that purpose they have formed an Association called ‘Sociedade de Santa Kuris’. The petitioners have also produced documentary evidence to show that such Association has been celebrating such a feast every year on 1st May without
any obstruction and or disturbance. It is pertinent to note that both the courts below have observed that the respondent in his rejoinder has admitted the fact about the existence of cross in the open space and the celebration of the annual feast on 1st May every year in the said open space in the suit property. The only contention that was sought to be raised by the respondent was that the same was being done with permission of the respondent. This stand is apparently afterthought as is evident from the fact that the respondent while approaching the Court did not disclose even the fact of existence of the cross in the suit property and the celebration of said feast every year.
4. The observation by the lower Appellate Court that the petitioners have not been able to rebut the presumption under section 105 of the Land Revenue Code is not borne out from the record. It is to be noted that as rightly submitted by the learned advocate for the petitioners, the lower Appellate Court has conveniently avoided to make any reference to the documents produced by the petitioners and holding that the affidavitary evidence cannot rebut the presumption arising from the entries in record of rights in view of the provisions contained in section 105 of the Land Revenue Code and has held that the ownership and possession of the respondent in respect of the suit property having been proved, the petitioners are not entitled to erect any structure, even of temporary nature, in the suit property.
5. In my considered opinion, the lower Appellate Court has acted with material irregularity while arriving at such finding inasmuch as the lower Appellate Court has totally ignored the documentary evidence in the form of the Register of the Association produced by the petitioners which clearly indicates that the feast was being celebrated on every 1st May of every year over last more than 30 years in the said open land. Besides the trial Court has clearly held that the respondent has not been able to make out a prima facie case to restrain the petitioners from celebrating the annual feast in the said open land.
6. The trial Court in fact on detail analysis of the material on record has observed that none of the witnesses of the respondent have even supported the case of the respondent regarding the claim of the respondent that the cross was built by the respondent for his personal devotion and that other villagers were only permitted by the respondent to offer prayers. The trial Court has also noted that the respondent has not been able to file any affidavit of any person who might have offered prayers or worshipped the cross with the permission of the respondent. The lower Appellate Court, however, proceeded to interfere in the order of the trial Court without any finding to the effect that the trial Court’s order was perverse or to have been passed in any arbitrary manner.
7. Time and again the Apex Court as well as this Court has held that merely because another view is possible from the view taken by the trial Court from the materials on record that itself would not justify interference in the order of the trial Court particularly in the matter of temporary injunction. In the instant case it is apparent that the trial Court on detail analysis of the materials by judicious exercise of his discretion had restricted the relief of temporary injunction to the extent of restraining petitioners from doing any construction of permanent nature in the suit property since the suit property belonged to the respondent. However, on the basis of the mate-
rial it refused to restrain the petitioners from celebrating the feast which they have been otherwise celebrating for the last over 40 years. In my view there was no justification for the lower appellate Court to interfere in the said order passed by the trial Court and to that extent the lower appellate Court has certainly exercised its jurisdiction arbitrarily and improperly.
8. In this view of the matter the revision application succeeds and hence the impugned order is liable to be quashed and set aside and is, accordingly hereby quashed and set aside and the Order of the trial Court is confirmed. Rule is made absolute in the above terms. There shall be no order as to costs.
9. Application succeed.