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2012 DIGILAW 2255 (BOM)

Narayan Naik v. Then Zilla Panchayat North Goa

2012-12-04

F.M.REIS

body2012
Judgment: Heard Shri A. D. Bhobe, learned Counsel appearing for the appellants, Shri P. Vengurlekar, learned Counsel appearing for respondent no.1 and Shri S. Narvekar, learned Additional Government Advocate appearing for respondent no.2. 2. The above appeal challenges the judgment and decree dated 20.12.2006 passed by the learned Ad-hoc District Judge-2, Panaji, in Civil Suit No.45/2006 whereby the suit filed by the appellant came to be dismissed. 3. Briefly, the facts of the case are that the appellant is the owner in possession of second addition of the property called “Um e meio lote do Palmar Dingrim” situated at Dongri, Mandur, Ilhas Goa, and registered in the Land Registration Office under no.8819 and inscribed in the name of Gopika Fondu Naik. It is further the contention of the appellant that there is a residential house in the suit property and that the said Gopika had mortgaged the property along with the house to Anant Naik, late father of the appellant. It is further their case that since then the appellant is in possession of the suit property and that the suit property has been surveyed in the record of rights under survey no.10/12 of Village Mandur. It is further the contention of the appellant that in August, 2005, respondent no.1 measured the area in the locality for constructing a road and for the said purpose a portion of the property belonging to the appellant was also measured. It is further their contention that the respondent no.1 forcibly commenced the construction work in the suit property though no portion of the suit property has been acquired as the proprietory rights of the appellant were infringed on account of such encroachment on the part of the respondents which according to the appellant have a width of 1½ metre and was covering an area of 50 metres. Hence, the suit came to be filed inter-alia for permanent injunction restraining the respondents from carrying out any construction of the road in the suit property and for other incidental reliefs including a relief for restoration of suit portion to its original state by removing the stones put up by the respondents. 4. Hence, the suit came to be filed inter-alia for permanent injunction restraining the respondents from carrying out any construction of the road in the suit property and for other incidental reliefs including a relief for restoration of suit portion to its original state by removing the stones put up by the respondents. 4. The suit came to be resisted by the respondent no.1 by filing the written statement inter-alia contending that there is an access of one metre through the property bearing survey no.10/14 and that the same is being used by the people of the locality as a footpath for more than 30 years. It is further the case of the respondent no.1 that Zilla Panchayat had received a proposal to construct the said footpath as it was in bad shape. It is further their case that the respondent no.1 has put up cement with a mixture of granules so that the said footpath can be used by the people from the locality. It is also denied that no work was being carried out by the respondents in the suit property surveyed under no.10/12 as according to the respondents such activity was being carried out in the property surveyed under nos. 10/14 and 10/11. 5. On the basis of the pleadings of the parties, the learned Judge has framed two issues namely whether the appellant proves that the respondent no.1 has illegally constructed a road in the property bearing survey no.10/12 of Village Mandur? and next issue is as to whether the respondent no.1 proves that they have constructed a road on the existing footpath in the property bearing survey nos.10/11 and 10/14 of Village Mandur?. Upon recording of evidence and hearing the parties, the learned Judge by the impugned judgment and decree decided both the issues in negative and consequently dismissed the suit filed by the appellant. Being aggrieved by the said judgment, the appellant has preferred the present appeal. 6. Shri Bhobe, learned Counsel appearing for the appellant has assailed the impugned judgment essentially on the ground that the learned Judge by the impugned judgment has come to the conclusion that the appellant is the owner in possession of the suit property nevertheless, rejected the claim for the relief sought by the appellant on the ground that the appellant has failed to establish the exact area of encroachment in the property surveyed under no.10/12. The learned counsel further pointed out that the appellant has produced the plan at Exhibit 33 which clearly depicted the approximate location of the encroachment carried out by the respondents and as such, the findings of the learned Judge to the effect that the encroachment has not been actually established cannot be accepted. The learned counsel further pointed out that as per the provisions of Order 7 Rule 3 of CPC what is material is to find out whether the alleged encroachment has been clearly depicted by the appellant as in the present case considering the said Exhibit 33, the requirements of Order 7 Rule 3 of CPC were duly satisfied. The learned Counsel has further taken me through the pleadings of the parties and pointed out that in the written statement of the respondent no.1, dealing with the allegations made by the appellant in the pleadings in para 5, the respondents in fact did not specifically deny the allegations therein but only contended that they have not carried out any encroachment in the property of the appellant. The learned Counsel further pointed out that taking note of the pleadings of the respondent no.1, it was their case that they have not done any type of construction work in the survey no. 10/12 and consequently the findings of the learned Judge to the effect that the encroachment has not been established are totally misplaced and cannot be sustained. The learned counsel as such submits that once it is established that there was encroachment in the property, the learned Judge was not justified to refuse the reliefs sought for by the appellant. The learned Counsel as such submits that the impugned judgment deserves to be quashed and set aside. 7. On the other hand, Shri P.Vengurlekar, learned counsel appearing for respondent no.1 has pointed out that this Court by order dated 13.12.2007 had directed the Surveyor from the Directorate of Land Survey to depict the disputed road/footpath on the survey plan in respect of property surveyed under nos.10/11 and 10/12 of Vilalge Mandur. The learned Counsel further pointed out that such report has been submitted and has been produced before this Court on 28.02.2008. The learned Counsel further pointed out that such report has been submitted and has been produced before this Court on 28.02.2008. This Court whilst accepting the said report has observed that as per the said survey report, as far as the suit property which is surveyed under no.10/12 is concerned, the encroachment is shown to be having an area of 26 square metres. The learned Counsel further points out that in case any removable of such encroachment is directed, grave injustice would occasion to the people in locality who are using the footpath as means of access. The learned Counsel does not dispute the correctness of the said report and further points out that stones as well as cement which was put up in the said portion of the suit property surveyed under no.10/12 does not exist as the same has already deteriorated and is not found at the site. The learned counsel as such submits that the question of directing the removal of such stones would not arise. 8. Mr. S. Narvekar, learned Additional Government Advocate appearing for respondent no.2 has pointed out that pursuant to the order of this Court, surveyor has prepared a report and has observed that the existing road/footpath passes through the property surveyed under no.10/12 in an area of 26 square metres. 9. I have carefully considered the submissions of the learned counsel and on perusal of the records, the following points for determination arise in the present appeal. POINTS FOR DETERMINATION 1. Whether the appellant has established that there is an encroachment in the property surveyed under no.10/12 situated at Mandur Village? 2. What relief, the appellant is entitled in the facts and circumstances of the case? 10. On perusal of the impugned judgment and on going through the provisions of Order 7 Rule 3 of the CPC, I find that the provisions is essentially to disclose the location of the encroachment and not to give precisely the exact area of the encroachment. In the present case, such location was clearly depicted in the plan at Exhibit 33 and in any event, taking into consideration, the stand taken by the respondents that no such construction activity was carried out in the suit property surveyed under no. 10/12, the findings of the learned Judge to the effect that the precise area of encroachment has not been established by the appellant cannot be sustained. 10/12, the findings of the learned Judge to the effect that the precise area of encroachment has not been established by the appellant cannot be sustained. Once the learned Judge has come to the conclusion that the appellant was in possession of the suit property, any encroachment in such property would have to be removed unless and until it is established by the respondents that such encroachment is justifiable. In the present case, the respondents do not dispute the fact that no acquisition proceeding has been carried out. Apart from that, it was specific case of the respondents that the construction activity was being carried out in the property surveyed under nos.10/11 and 14 and not in survey no.10/12 and as such, it was not correct on the part of the learned Judge to refuse the reliefs sought by the appellant on a specious ground that the exact encroachment has not been established. 11. In view of the above and taking note of the findings of the learned Judge in the impugned judgment that the appellant is the owner in possession of the suit property, the findings of the learned Judge that the construction activity in the property of the appellant has not been established cannot be accepted. In any event, as stated herein above, this Court by order dated 13.12.2007 by consent had directed the land surveyor to disclose the existence of such road/footpath in the suit property surveyed under no.10/12. On 28.02.2008 the plan has been produced which clearly depicts the actual encroachment in the suit property surveyed under no.10/12 to the extent of 26 square metres. Considering that the respondents do not dispute the depiction as carried out by the surveyor of the Land Survey Department, I find that the findings of the learned Judge that the encroachment has not been established cannot be sustained and consequently, the construction activity carried out by the respondents is without any right in the suit property surveyed under no.10/12 of Mandur Village to the extent of 26 square metres. Hence, the first point for determination is answered accordingly. 12. Hence, the first point for determination is answered accordingly. 12. With regard to the second point for determination, taking note of the contention of the learned counsel appearing for respondent no.1 to the effect that the stones as well as the cement which was put up in the suit property no longer exists, the question of directing removal of such construction activity carried out in the suit property would not be necessary. But however, considering that the appellant has established his ownership in possession of the suit property on the basis of the findings of the learned Trial Judge which have not been challenged by the respondents, I find that the appellant would be entitled for a permanent injunction to restrain the respondents from carrying out any construction activity of the road/footpath in the property surveyed under no.10/12. In the peculiar facts and circumstances of the case and taking note of the submission of the learned counsel appearing for respondent no.1, I find that in the interest of justice, the suit filed by the appellant be decreed in terms of prayer (i) whereby the respondents, their agents, office bearers, servants, labourers and/or any person are restrained by a permanent injunction from claiming through or under the respondents from entering and/or carrying out any construction of road or construction activity of any nature unless and until the land is acquired for road or any legal measures are taken on that count otherwise due process of law. 13. In view of the above, I pass the following : ORDER (i) The appeal is partly allowed. (ii) The impugned judgment and decree dated 20.12.2006 is quashed and set aside. (iii) The suit filed by the appellant is partly decreed. (iv) The respondents, their agents, office bearers, servants, labourers, are restrained from carrying out any construction of road or construction activity of any nature or otherwise interfering with/in the property bearing survey no.10/12 of Village Mandur otherwise than by due process of law. (v) The appeal stands disposed of accordingly with no order as to costs.