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Judgment
F.M. Reis, J.—Heard Shri V. P. Thali, learned Counsel appearing for the petitioners and Shri S. D. Lotlikar, learned Senior Counsel appearing for respondent. The above petition challenges the judgment and order passed by the learned District Judge-3, North Goa, Panaji dated 19.05.2009 passed in Misc. Civil Appeal No. 1/2009 whereby the appeal preferred by the respondent came to be allowed and the application for temporary injunction filed by the respondent in Regular Civil Suit No. 81/2008/D in The Court of learned Civil Judge Junior Division, at Mapusa was allowed and the petitioners, their agents, servants were restrained from interfering with the suit property till the disposal of the suit which is in operation up to this date.
Shri V. P. Thali, learned Counsel appearing for the petitioners has assailed the impugned judgment of the Lower Appellate Court essentially on the ground that the Lower Appellate Court whilst deciding the appeal under Order 43 Rule 1(r) read with 104 of C.P.C. did not have jurisdiction to reappreciate the prima facie findings arrived at by the Trial Judge in view of the judgment of the Apex Court referred to in 1989(2) GLT 255 in the case of Winston Pereira V/s Shri Rama Gadekar & 4 Ors. The learned Counsel further submitted that the Lower Appellate Court has misconstrued the evidence on record and has come to an erroneous conclusion that the respondent has established a prima facie case in her favour. The learned Counsel further pointed out that there was an agreement for sale executed way back in the year 1984 whereby the suit property surveyed under No.31/1 was agreed to be sold to the petitioners. The learned Counsel further pointed out that the terms of the said agreement have been wrongly appreciated by the Lower Appellate Court to come to the conclusion that the said agreement does not pertain to the suit property. The learned Counsel further pointed out that the petitioners have established their case on the basis of material on record that the petitioners were in possession of the suit property on the basis of the excise licence produced by the petitioners. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has erroneously exercised its jurisdiction which requires interference by this Court under Article 227 of the Constitution of India. The learned Counsel as such submitted that the impugned judgment deserves to be quashed and set aside.
On the other hand, Shri S. D. Lotlikar, learned Senior Counsel appearing for the respondent has supported the impugned judgment. The learned Senior Counsel has pointed out that the judgment of the Apex Court was not applicable to the facts of the present case as according to him the Trial Judge has misconstrued the document executed in June, 1984 to come to the conclusion that the agreement pertains to the suit property. The learned Senior Counsel further submitted that the said agreement is in respect of other property which is tenanted to the petitioners and surveyed under No.35/6 and not in respect of the suit property. The learned Counsel further pointed out that the Lower Appellate Court has rightly drawn an inference on the basis of material on record to come to the conclusion that the said agreement does not in any way help the case of the petitioners to contend that they are tenants of the suit property. The learned Counsel further pointed out that admittedly the petitioners filed an application for declaration of tenancy before the learned Mamlatdar and as their claims were finally adjudicated before the competent authority and as such the question of claiming now that they are the tenants of the suit property before this Court does not arise. In any event the learned Senior Counsel submitted that no evidence has been produced by the petitioners to prima facie show their alleged claim of tenancy. The learned Counsel further pointed out that the Lower Appellate Court has rightly appreciated the evidence on record and as such no interference is called for in the impugned judgment.
Having heard the learned Counsel for the parties and on perusal of records, I find that this Court can exercise the jurisdiction under Article 227 of the Constitution of India only in specific cases. It is well settled in the judgment reported in B.K. Muniraju Vs. State of Karnataka and Others, , the Apex Court has held at para 22 thus :
It is settled law that a writ of certiorari can only be issued in exercise of extraordinary jurisdiction which is different from appellate jurisdiction. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals or authorities in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. In regard to a finding of fact recorded by an inferior tribunal or authority, a writ of certiorari can be issued only if in recording such a finding, the tribunal/authority has acted on evidence which is legally inadmissible, or has refused to admit an admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. It is needless to mention that a pure error of fact, however grave, cannot be corrected by a writ.
Taking into consideration of the well settled principles laid down by the Apex Court in the said judgment, I find that the contention of the learned Counsel appearing for the petitioners are essentially on the ground that the Lower Appellate Court has wrongly appreciated the evidence on record to come to an erroneous conclusion that the respondent has established a prima facie case in her favour. Admittedly, the survey records have been duly promulgated which do not disclose any name of the petitioners in the tenants column. This Court in the judgment reported in 1990 (2) GLT 407 in the case of Damodar R. P. Lamdo V/s Bhasker R. Jalmi, has held that the correction of the survey records cannot be rebutted by filing any affidavit. In an other judgment of this Court reported in 2003(1) GLR 104(Bom) in the case of Shriram Narain Dhond V/s Demu Surya Gaude it has been held that presumption arising out of an entry in the record of rights prevails till final adjudication of a suit.
Shri V. P. Thali, learned Counsel appearing for the petitioners tried to distinguish the said judgment on the ground that in the said judgment the names of the parties were figuring in the survey records in the tenant column. I find that considering that the names of the petitioners do not figure in the tenants column in the promulgated records in respect of the suit property survey no.31/1 itself draws a presumption of possession in favour of the respondents in the suit property. It is not open to the petitioners to rebut such presumption by merely filing an affidavit. The Trial Court misconstrued the agreement dated 11.6.1984 to come to the conclusion that the said agreement pertains to the suit property. The Appellate Court was justified to interfere in the order passed by the learned Trial Judge in an appeal preferred under Order 43 Rule 1 of C.P.C. The Lower Appellate Court is always entitled to ascertain whether the discretion exercised by the Courts below whilst dismissing the application for temporary injunction is exercised capriciously and contrary to the well settled principles of law. The Lower Appellate Court in fact considered the judgment of the Apex Court and has come to the conclusion that the discretion exercised by the Trial Judge in dismissing the application for temporary injunction was capricious and cannot be sustained in law on the ground that the documents produced by the respondent have been wrongly construed. Apart from that the claim of the petitioners that their possession has been established on the basis of the excise licence, the Lower Appellate Court has considered the said aspect and has come to a prima facie conclusion that the said documents are not in respect of the suit property. All the contentions raised by the learned Counsel appearing for the petitioners are in the nature of reappreciating evidence on record which cannot be carried out by this Court in exercising the jurisdiction under Article 227 of the Constitution of India.
Considering the facts and circumstances of the present case, in view of the fact that the petitioners have filed an application for declaration of tenancy before the concerned Mamlatdar, I find it appropriate that in case any such declaration is granted in favour of the respondent by such authorities, the petitioners are always at liberty to file an application under Order 39 Rule 4 of C.P.C. for vacating/modifying the injunction order granted by the Trial Court which shall be dealt with in accordance with law. Subject to the above, I find no merit in the above petition which is dismissed with no order as to costs.