Disposed

Santosh Babu Tubki and Anr., v. Raghoba Ganba Sawant Rep. by P.O.A Anant Ganba Sawant and Anr.

Bombay HC5 Aug 2021WP/163/2012

Case brief

AI extract

What is this about?

This writ petition challenged interim orders in a property dispute where the plaintiff/appellant was already in possession of part of the access granted by the lower appellate court. The High Court held that examining the appeal on merits would only decide interim positions, not the final outcome. Consequently, the court disposed of the petition, directed the Trial Court to decide the main suit wi

What did the court decide?

The writ petition was disposed of. The interim order dated 16.11.2011 is stayed from implementation until the disposal of the underlying civil suit. The Trial Court is directed to dispose of the suit

Santosh Babu Tubki and Anr., Vs Raghoba Ganba Sawant Rep… — Property and Title | Bombay HC (2021)

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20 WP 163 of 2012.doc

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Jose

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.163 OF 2012

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MR. SANTOSH BABU TUBKI, son of late Babu Tubki, Major of age, Married, Businessman, Prop. of M/s Mallikarjun Industry, having its Office at Patnem, Canacona- Goa.

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Mrs. Sangeeta Santosh Tubki, wife of Santosh Tubki, Major of age, Both residing at Patnem, Canacona, Goa. Versus 1. MR. RAGHOBA GANBA SAWANT son of late Ganba Sawant, of full age, Agruculturist, resident of House No. 652, Palolem, Canacona, Goa, represented by his Power of Attorney holder, Mr. Anant Ganba Sawant, son of Ganba Sawant, resident of House No.191/A, Mastimol, Canacona, Goa.

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... Petitioners.

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1(a) Smt. Urmila Raghoba Sawant Wife of Late Raghoba Sawant Age 72 years

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1(b) Shri Manoj Raghoba Sawant Son of Late Raghoba Sawant Age 52 years

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20 WP 163 of 2012.doc

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1(c) Smt. Sangita Ratish Sawant Wife of Late Ratish Sawant Age 41 years

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1(d) Mr. Ved Ratish Sawant Son of Late Ratish Sawant Age 9 years Represented through his mother Ms. Sangita Ratish Sawant All R/o H. No.96, Sawantawada, Palolem Canacona Goa

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1(e) Smt. Savita alias Tejashree S. Naik Dessai D/o Late Raghoba Sawant Age 55 years R/o H. No. 87, Pansulem Canacona Goa

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1(f) Smt. Amita Rajendra Gad Age 49 years D/o Late Raghoba Sawant

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1(g) Rajendra Gad, Aged 53 years Both R/o Sai Shraddha Building – II, 3rd Floor, flat no. 3, Near Sai baba temple, New Vaddem Vasco da Gama Goa

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1(h) Smt. Achal Suhas Gauns Dessai Aged 45 years,

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1(i) Suhas Gauns Dessai Aged 50 years, Both R/o H. No.323, Voyamol, Xeldem Quepem Goa

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5th August 2021

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20 WP 163 of 2012.doc

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Mr. Anant Ganba Sawant, son of Ganba Sawant, r/o House No. 191/A, Mastimol, Canacona, Goa.

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... Respondents.

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Mr. T. Sequeira, Advocate for the Petitioners .

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Mr. Cleofato Coutinho, Advocate for Respondent No.2 .

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Coram: M.S. SONAK, J.

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Date: 5^th August 2021.

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: ORAL JUDGMENT

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1.Heard Mr. T. Sequeira for the Petitioners and Mr. Cleofato
Coutinho for Respondent No.2.

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2.The Petitioners are the original defendants and Respondents No.1
and 2 are the original plaintiffs in RCS No. 108/2010 instituted in the
Court of the Civil Judge Junior Division at Canacona, Goa.

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3.The Trial Court in this case partly allowed the plaintiffs'
application for temporary injunction in the following terms:-

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“ORDER

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The application for temporary injunction is partly allowed.

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The defendants, their agents, servants, and/or any persons
acting through them are restrained from interfering and
obstructing the plaintiffs from using, enjoying and utilizing the
0.60 meters wide access kept towards eastern boundary of
survey no.86/4 of village Canacona”

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4. The plaintiffs were however aggrieved by the Trial Court's order dated 20.07.2011 and therefore, instituted Miscellaneous Civil Appeal

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5th August 2021

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20 WP 163 of 2012.doc

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No.84/2011 before the First Appellate Court. This was allowed by the
First Appellate Court partly in the following terms:-

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“ORDER

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The Misc. Civil Appeal is partly allowed.

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The Order dated 20.07.2011, passed by the Civil
Judge, Junior Division, Canacona, in Regular Civil Suit No.
108/2010, stands modified to the following effect;

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That the plaintiffs are allowed to shift the barbed wire
fencing of the defendants on the eastern boundary of survey
No. 86/4, in the portion where the access of 0.60 metres width
is presently available, as shown in the sketch of field surveyor of
the office of Mamlatdar, annexed to the report dated
21.05.2008, to the extent of 2.50 metres width, at their own
cost and under prior intimation to the defendants.

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Further, the defendants, their agents, servants and/or
any persons acting through them are temporarily restrained
from interfering and obstructing the plaintiffs from using,
enjoying and utilizing the said access of 2.50 metres width till
the disposal of the suit.

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No order as to costs.”

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5.There is no dispute that the order dated 16.11.2011 made by the
First Appellate Court was stayed by this Court and such interim order
continues till date. Now that the interim order has continued for this
long, interest of justice will be better served if this appeal is disposed of by
directing the Trial Court to dispose of that Regular Civil Suit
No.108/2010 as expeditiously as possible and in any case within six
months from today. In the meanwhile, the interim order made by this
Court can operate.

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5th August 2021

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20 WP 163 of 2012.doc

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6.At this point of time, no useful purpose will be served in
examining this appeal on merits. This is because even after such
examination, this Court will only be in a position to decide the interim
position and not the final position. Since the suit was instituted in the
year 2010, it is only appropriate that the suit itself is disposed of on its
own merits and in accordance with law as expeditiously as possible. In
disposing of the suit, the Trial Court need not be influenced by the
observations in the interim orders or the continuance of interim relief by
this Court pending the disposal of the suit.

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7.Accordingly, this petition is disposed of. The impugned order
dated 16.11.2011 made by the First Appellate Court will not be
implemented until the disposal of the civil suit. The civil suit is directed
to be disposed of as expeditiously as possible and in any case within six
months from today. The parties and their Advocate to cooperate with the
learned Trial Court for the disposal of the suit. The Trial Court should
not be influenced by any observations in the impugned orders or for that
matter the present order. All contentions of all parties are expressly left
open.

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8. The rule is made partly absolute in the aforesaid terms. There shall be no order as to costs.

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9. All concerned to act on authenticated copy of this order.

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Page 5 of 5 5th August 2021

Santosh Babu Tubki and Anr., v. Raghoba Ganba Sawant Rep. by P.O.A Anant Ganba Sawant and Anr.

Case brief

What is this about?

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Santosh Babu Tubki and Anr., v. Raghoba Ganba Sawant Rep. by P.O.A Anant Ganba Sawant and Anr.

Case brief

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What did the court decide?

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