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Judgment
F.M. Reis, J.—Heard Shri Guru Shirodkar, learned Government Advocate for the petitioners and Shri V. Menezes, Learned Counsel appearing for the respondents.
The above revision challenges the order dated 31/08/2007 passed by the learned Adhoc District Judge, South Goa at Margao in Civil Suit No. 241/2004 whereby an application filed by the petitioners under Order VII, Rule 11 (d) of the CPC came to be rejected.
Shri Guru Shirodkar, learned Government Advocate appearing for the petitioners has assailed the impugned order and pointed out that the learned Judge has failed to consider that the reliefs sought by the respondents in the suit are barred u/s 106 of the Land Revenue Code. Learned Counsel further pointed out that considering the said provisions of the Land Revenue Code, the question of filing a suit for declaration of title would not arise at all. Learned Counsel has further submitted that the grievance of the respondents, if any, is to be adjudicated before the Revenue Authority and, as such, the question of proceeding in the Civil Suit before the learned District Judge is totally misplaced in respect of the survey entries which stand in the name of the petitioners. Learned Counsel has taken me through the impugned order and pointed out that the learned Judge has erroneously come to the conclusion that the provisions of Section 106 of the Land Revenue Code come into operation only prior to the promulgation and, as such, submitted that the impugned order deserves to be quashed and set aside.
On the other hand, Shri V. Menezes, Learned Counsel appearing for the respondents has supported the impugned order. Learned Counsel has pointed out that though the provisions u/s 106 of the Land Revenue Code are in operation even in respect of the promulgated records, nevertheless, the suit filed by the respondents being suit for declaration of title, the question of any ousted of jurisdiction does not arise at all. Learned Counsel further pointed out that the suit filed by the respondents is to declare title in respect of the disputed portion of the property and that the property claimed by the respondents corresponds to the property surveyed under no. 94/1,3 and 5 of village of Cavelossim which is a matter which has to be adjudicated only by the Civil Court. Learned Counsel, as such, submitted that there is no error committed by the Court below in rejecting the application filed by the petitioners for rejection of plaint and, as such, no interference is called for in the impugned order.
Upon hearing the Learned Counsel appearing for the parties and on perusal of the record, I find that the suit filed by the respondents is for following reliefs :
a) to declare that the plaintiffs are exclusive owners of the suit property and that the defendants have no right whatsoever to the suit property or any part thereof.
b) to declare that the name of the defendant no. 1 has been wrongly entered in Form I & XIV of the suit property i.e. property surveyed under no. 94/1,3 and 5 of Cavelossim Village and the same is liable to be deleted and replaced by the name of the plaintiffs.
c) to order and direct the defendants to carry out the necessary corrections in the Land Survey Records/Records of Rights relating to the suit property.
d) to grant permanent injunction and restrain the defendants, their servants, agents successors and or any one acting on their behalf from encroaching upon or trespassing into the suit property.
e) to direct the Directorate of Land Survey to carry out the resurvey of the suit property as per the plan reproduced by Eng. Ernesto Moniz.
On going through the said reliefs, it is found that prayer (a) thereof is for declaration of title. As such, such declaration of title can only be granted by the Civil Court and, consequently, the contention of learned Government Advocate to the effect that the suit is barred under the provisions of Section 106 of the Land Revenue Code cannot be accepted. Apart from the said reliefs, the respondents have also sought for a permanent injunction in respect of the suit property which is also a relief which has to be considered by the Civil Court. Hence, the contention of the learned Government Advocate to the effect that the suit is barred by Section 106 of the Land Revenue Code cannot be accepted. The relief sought by the respondents is maintainable before the Civil Court. Though, prima facie, the reliefs at (b), (c) and (e) may not be available to the respondents before the Civil Court, nevertheless, this by itself does not give right to the petitioners to file an application under Order VII Rule 11 (d) of the CPC for rejection of plaint. Whether such reliefs can be granted or not is a matter which the learned Judge will consider at the time of final disposal of the suit.
In view of the above, I find that the learned Judge has rightly dismissed the application filed by the petitioners for rejection of plaint. The learned Government advocate otherwise is justified to contend that the finding of the learned Judge to the effect that Section 106 of the Land Revenue Code comes into play only prior to the promulgation is erroneous, but however, this does not in any way vitiate the final relief granted by the learned Judge dismissing the application filed by the petitioners for rejection of the plaint.
In view of the above, I find that the learned Judge has not committed any error in rejecting the application filed by the petitioners. Hence, I find no merit in the above petition, and, as such the petition stands dismissed. Rule stands discharged accordingly.
It is pointed out that the suit before the learned District Judge has been stayed during th pendency of the above petition. Hence, parties are directed to appear before the learned Judge on 16/01/2012 at 10.00 a.m. The learned Judge is directed to dispose of the said suit as expeditiously as possible and in any event preferably on or before 31/12/2012.