Shri Ganesh Panta Gaunkar vs Shri Santu Sanvlo Gaunkar

The challenge in this petition under Article 227 of the Constitution of India is to the Judgment and Order dated 2/3/2015 passed by the learned

District Judge-1, South Goa, Margao, in Misc. Civil Appeal No.133/2013. By the impugned Judgment, the learned District Judge while reversing the

order passed by the learned trial court has granted injunction in favour of the respondents/plaintiffs. The injunction granted is restraining the petitioners

or anybody on their behalf from planting any trees or doing any construction in any manner whatsoever in the suit property, bearing survey no.66/4 till

the disposal of the suit.

On hearing the learned counsel for the parties and on perusal of the record it appears that the learned trial court has restricted the consideration to

the issue of delay and laches. The learned trial court found that the alleged attempt to encroach was first noticed by the respondents/plaintiffs in the

month of May 2012, while the suit came to be filed six months later, in the month of November 2012. A bare perusal of the order passed by the

learned trial court shows that the injunction came to be refused solely on this ground.

The learned District Judge has taken note of the fact that admittedly the parties are co-owners and it would not be just for any other co-owner to

encroach upon the portion of another co-owner when there is no partition of the property by metes and bounds. This aspect has not at all been

adverted to or considered by the learned trial court. Admittedly a separate suit for partition is pending before the competent Civil Court.

It is submitted by Shri Da Costa, the learned Senior Counsel for the petitioners that the appellate court was not justified in interfering with the order

passed by the learned trial court without finding that the order was perverse or illegal. Although the principle as urged, cannot be disputed, I do not find

that on facts, the contention can be accepted in the present case for the reason that the learned trial court without adverting to the fact that admittedly

the property was a joint property and the parties were co owners, had refused injunction, on the grounds of delay and laches. Undoubtedly delay

and latches is one of the consideration while granting the equitable relief of temporary injunction. However, the question is whether such

consideration would out weigh other relevant considerations. It would be a matter which would depend upon the facts and circumstances of each

each. In my considered view the injunction could not have been refused solely on the ground of delay and latches.

Shri D'Costa, the learned Senior Counsel for the applicant during the course of arguments at bar pointed out that the respondents have sold away

certain portions of the joint property which is also not permissible.

However, the record does not disclose that the petitioners had sought any injunction restraining the respondents from creating any third party

rights/interest in the suit property. Needless to mention that, if so advised the petitioners would be at liberty to move such an application and if

such an application is filed, the learned trial court shall decide the same on its own merits and in accordance with law. In the result the petition is

dismissed, with no order as to costs.