Partly allowed

Muriel Singh and Anr., v. Maria Santana D'Souza and 4 Ors.

Bombay HC23 Jun 2021WP/473/2019

Case brief

AI extract

What is this about?

The High Court of Bombay at Goa disposed of two writ petitions challenging the Trial Judge's orders regarding impleadment in a civil suit. In WP No.473 of 2019, the court dismissed the challenge to the impleadment of one respondent. In WP No.2 of 2019, the court set aside the rejection of the petitioner's impleadment as a defendant, setting up necessary amendments within 15 days.

What did the court decide?

Writ Petition No.473 of 2019 dismissed; Writ Petition No.2 of 2019 allowed and order dated 25.01.2018 set aside; impleadment allowed with amendment within 15 days.

Muriel Singh and Anr., Vs Maria Santana D'Souza and 4 Ors. — Property and Title | Bombay HC (2021)

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1 15- wp-473-2019 & wp-2-2019

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IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.473 OF 2019

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1. Mrs. Muriel Singh,
D/o late Mr. Antonio Joao D'Souza alias
Antthony about 72 years, married,
Housewife, holder of OCI Card
Bearing No. A-715067 issued at
London on 26.10.2010 and her husband;

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2. Mr. Sewe P. Singh alias
Mr. Sewe Persaud Singh,
S/o late Rambaran Singh,
Aged about 73 years, married,
Retired, holder of PIO Card
Bearing no. P- 0001355 issued at
London origin and residents of House
No. 842/1, High View, Vaddi, Cansa,
Tivim, Bardez, Goa 403 502.

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... Petitioners.

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 Versus

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1. Maria Santana D'Souza,
Major of age, widow
R/o H.No. 124, Pearl Heaven,
Acoi, Mapusa, Bardez, Goa.

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2. Mr. Lovel Delfino Deodano
Alexandre D'Souza,
son of late Mr. Antonio Joao D'Souza,
Aged about 70 years,
married, Retired and his wife;

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3. Mrs. Anan Melina D'Souza,

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W/o Mr. Lovel Delfino Deodano
Alexandre D'Souza,
aged about 60 years,
married, retired,
both Indian Nationals
And Residents of House No. 127/4,
Acoi, Mapusa Bardez – Goa.

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4. Mr. Jeronimo Francisco D'Souza,
Last known to have resided at
House No. 127/4,
Acoi, Mapusa Bardez – Goa

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5. Mr. Romaldina D'Souza,
widow of Sabino D'Souza,
last known to have resided at
House No. 127/4,
Acoi, Mapusa Bardez, Goa.

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... Respondents.

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Mr. J. J. Mulgaonkar, Senior Advocate with Ms. Rupa Benaulikar,
Advocate for the petitioner.

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Mr. Valmiki Menezes, Advocate for the Respondent No.1.

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WITH

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WRIT PETITION NO. 2 OF 2019

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Isabella D'souza,

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W/o Mr. Joaquim D'souza,
Major of age, Indian National
R/o H.No. 447/3, Triveni Apt,
Tonca, Caranzalem, Tiswadi, Goa

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(Since deceased) Through LR's

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1(a). Joaquim Inacio D'souza

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1(b). Jessica Dominica Francisca Aranha

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1(c). Jaisan Aranha
1(d). Joel Savio D'souza
1(e). Olivia Carmel Coutinho
All residents of R/o H.No. 447/3,
Triveni Apt, Tonca, Caranzalem,
Tiswadi, Goa.

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... Petitioners.

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 Versus

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1. Mrs. Muriel Singh,
D/o late Mr. Antonio Joao D'Souza alias
Anthony John D'Souza,
Aged about 72 years, married,
Housewife, holder of OCI Card
Bearing No.A-715067 issued at
London on 26.10.2010 and her husband;

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2. Mr. Sewe P. Singh alias
Mr. Sewe Persaud Singh,
S/o late Rambaran Singh,
Aged about 73 years, married,
Retired, holder of PIO Card
Bearing No.P-0001355 issued at
London on 30.06.2004, both of
Indian origin and residents of House
No. 842/1, High View, Vaddi, Cansa,
Tivim, Bardez, Goa 403 502
3. Mr. Lovel Delfino Deodano

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Alexandre D'Souza,
Son of late Mr. Antonio Joao D'Souza,
Aged about 70 years, married,
Retired and his wife;
4. Mrs. Anan Melina D'Souza,
Wife of Mr. Lovel Delfino Deodado
Alexandre D'Souza, aged about 60
Years, married, retired, both Indian
Nationals and residents of House
No.127/4, Acoi, Mapusa, Bardez, Goa

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5. Mr. Jeronimo Francisco D'Souza,
Last known to have resided at
House No.127/4, Acoi, Mapusa,
Bardez, Goa

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6. Mr. Romaldina D'Souza,
Widow of Mr. Sabino D'Souza,
Last known to have resided at
House No.127/4, Acoi, Mapusa,
Bardes, Goa.

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... Respondents.

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Mr. Abhay Nachinolkar, Advocate for the petitioner.

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Mr. Jayant J. Mulgaonkar, Senior Advocate with Ms. Rupa
Benaulikar, Advocate for the respondents No.1 and 2.

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 CORAM: M. S. SONAK, J
 DATE :23rd June, 2021

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ORAL JUDGMENT:

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Heard Mr. J. J. Mulgaonkar, learned Senior Advocate
alongwith Ms. Rupa Benaulikar, learned Counsel for the petitioner

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and Mr. Valmiki Menezes, learned Counsel for the respondent No.1
in Writ Petition No.473 of 2019.

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2.Heard Mr. Abhay Nachinolkar, learned Counsel for the
petitioner and Mr. Jayant J. Mulgaonkar, learned Senior Advocate
with Ms. Rupa Benaulikar, learned Counsel for the respondents
No.1 and 2 in Writ Petition No.2 of 2019.

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3.Having regard to the substantially common nature of
the issues involved, it is only appropriate that both these petitions
are taken up and disposed of by a common judgment and order.

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4.Accordingly, Rule is granted in both the petitions. Rule
is made returnable forthwith with the consent and at the request of
the learned Counsel for the contesting parties.

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5.In Writ Petition No.473 of 2019, the challenge is to the
order dated 25.01.2018 by which the learned Trial Judge has
permitted respondent no.1 to be joined as a defendant in the suit.

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6.Mr. Mulgaonkar, learned Counsel submits that the
petitioner, who is the plaintiff has dominus litis. He submits that

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respondent no.1 is neither a necessary party nor a proper party. He
submits that such impleadment will unnecessarily expand the scope
of the suit. He submits that though a declaration of title has been
applied for, on cogent consideration of the averments in the plaint,
the plaintiff's real grievance appears to be to the inclusion of the
names of original defendants no. 3 and 4 in the survey records. He
therefore submits that the impugned order dated 25.01.2018 is in
excess of jurisdiction and warrants interference.

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7.Mr. Menezes, learned Counsel for the respondent no.1,
on the other hand, submits that in the suit, the petitioner has
applied for a declaration that they are the absolute owners of the suit
property. He submits that such declaration as now alleged is applied
for on the ground of alleged possession. He submits that respondent
No.1 has perused material on record establishing her prima facie
interest in the suit property. He therefore submits that the
respondent No.1 was a necessary party or in any case a proper party
and the discretion has correctly been exercised by the learned Trial
Judge. He therefore submits that in absence of any procedural error,
this Court may not interfere with the impugned order.

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8.From the perusal of the plaint, it does appear that the
petitioners have sought a declaration that they are the absolute

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owners in title and possession of the suit property. That apart,
several other reliefs have been sought in relation to the suit property.
Therefore, this is not some simple suit for correction of entries in the
survey records. The respondent No.1 has produced some material
on record which at least, prima facie, indicates that the respondent
No.1 is not some total stranger or interloper who is trying to meddle
with the suit. This material has been referred to by the learned Trial
Judge in paragraphs 6 and 8 of the impugned order, in which the
respondent No.1 who should have been referred to as the applicant
has been erroneously referred to as the plaintiff. No doubt, the
observations made in the impugned order are only prima facie and
for the limited purpose of deciding whether the application for
impleadment should be granted or not. Such prima facie
observations will have no bearing on the final position of the suit.

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9.Having regard to the nature of the reliefs applied for in
the suit and the interest, prima facie, demonstrated by respondent
No.1, it is difficult to hold that there is any jurisdictional error in the
impugned order or that discretion has been unreasonably exercised.
Accordingly, no case is made out to interfere with the impugned
order dated 25.01.2018 and Writ Petition No.473 of 2019 is liable
to be dismissed and is hereby dismissed.

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10.Mr. Abhay Nachinolkar, learned Counsel for the
petitioner in Writ Petition No.2 of 2019 points out that the
challenge in this petition is to the order made by the same learned
Judge dismissing the application made by the petitioner seeking
impleadment in the aforesaid suit. He submits that the documents
which persuaded the learned Trial Judge to allow the impleadment in
the previous matter were the same documents relied upon by the
petitioner in Writ Petition No.2 of 2019. He submits that these
documents make reference to the ancestors of the petitioner and the
interest of such ancestors in the suit property which is the subject
matter of the suit. He, therefore, submits that applying the
reasoning in the earlier order, this petition is required to be allowed.

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11.Mr. Mulgaonkar, the learned Senior Advocate for the
original plaintiff counters the submissions of Mr. Nachinolkar and
defends the impugned order dated 25.01.2018 based on the
reasoning reflected therein. He points out that the petitioner is not
at all a proper party or a necessary party. He submits that the
documents produced by the petitioner have no nexus with the suit
property and, therefore, Writ Petition No. 2 of 2019 may be
dismissed.

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12.Again, there is merit in the submissions of Mr.
Nachinolkar that in the documents relied upon by him there is some
reference to the ancestors of the petitioner. Mr. Nachinolkar also
pointed out that the survey records of which the original plaintiff
seeks deletion are also quite vague. He submits that in the earlier
survey record there was specific reference to the ancestor of the
petitioner.

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13.At this stage, it is too premature to decide on the final
interest which the petitioner may or may not have in the suit
property. However, based on the documents produced, it cannot be
said that the petitioner is some total stranger or interloper who is
seeking to meddle with the suit in which the relief of declaration of
ownership and title has been applied for. The reasoning adopted by
the learned Trial Judge in the previous matter should have, in fact,
applied to this matter as well. Based upon such reasoning which
have now been upheld by him, the application made by the
petitioner deserves to be allowed.

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14.Accordingly, the impugned order dated 25.01.2018
which is the subject matter of challenge in Writ Petition No.2 of
2019 is hereby set aside and the petitioner's application for
impleadment as defendant at Exhibit B-20 is hereby allowed.

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Necessary amendment to be carried out within 15 days from today.
Accordingly, Rule is made absolute in Writ Petition No.2 of 2019.

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15. In conclusion, Rule is discharged in Writ Petition No.473 of 2019 but made absolute in Writ Petition No.2 of 2019. There shall be no order for costs. Ad-interim order, if any, is hereby vacated.

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16. All parties to now appear before the Trial Court on 12.07.2021 at 10:00AM and file authenticated copy of this order.

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 M. S. SONAK, J.

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msr.

Muriel Singh and Anr., v. Maria Santana D'Souza and 4 Ors.

Case brief

What is this about?

What did the court decide?

Muriel Singh and Anr., v. Maria Santana D'Souza and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Parties & counsel

Coram

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