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2013 DIGILAW 935 (BOM)

Maria Fernandes v. Antonio Rodrigues

2013-05-03

A.P.LAVANDE

body2013
JUDGMENT Heard Advocate Mr. Rivonkar for the appellants and Advocate Mr. Ferreira for the respondents. 2. By this Second Appeal, the appellants take exception to the judgment and decree dated 13/08/2003 passed by IIIrd Additional District Judge, Margao in Regular Civil Appeal No.36/2001 by which the appeal preferred by the appellants against the judgment and decree dated 02/03/2001 passed by Civil Judge, Senior Division, Margao in Regular Civil Suit No.454/2000/II (new), has been dismissed. 3. The appellants are the legal representatives of the original plaintiff Shri Caetano Fernandes, who filed the suit for declaration and injunction against Shri Antonio Rodrigues of whom the respondents are the legal representatives. The suit was for mandatory injunction and demolition of extension carried out to the house occupied by the defendant and also for perpetual injunction restraining the defendant from encroaching upon the suit property or the plinth area of the suit house. The plaintiff died during the pendency of the suit and his legal representatives were brought on record. The suit was contested by the defendant, who expired during the pendency of the suit and his legal representatives were brought on record. 4. The trial Court, upon appreciation of the evidence led by the parties, granted prayer (b) i.e. prayer for perpetual injunction. However, prayer for demolition was rejected. 5. Aggrieved by the refusal of grant of prayer (a), the plaintiff preferred an appeal to the District Judge, South Goa, Margao. The lower appellate Court also framed following point for determination in the First Appeal : "Whether the plaintiff had proved that in December, 1991 and May 1996, the defendant extended the suit house ?" 6. The lower appellate Court answered the point against the plaintiff and consequently, dismissed the appeal. 7. Second Appeal was admitted by this Court on the following substantial questions of law : "(A) Whether both the Courts below have misread the evidence or misconstrued the legal evidence led by the appellants on the point of plinth area of the house occupied by the respondent though it is clearly reflected in the survey plan produced by the appellants, and thereby committed legal infirmity by holding that the appellants have not brought on record the existing area of the house prior to extension carried out by the respondent ?" 8. At the outset, Mr. At the outset, Mr. Ferreira, learned Counsel appearing for the respondents sought leave to produce a copy of the order passed by the Administrative Tribunal in Mundkar Revision Application No.3/2009 and plan by which an area occupied by the respondents, has been demarcated by Mamlatdar of Salcete. The same are taken on record. 9. According to Mr. Ferreira, the original defendant Antonio Rodrigues was declared mundkar in respect of the house existed in the property of the plaintiff which was not challenged. However, the order passed by the Mamlatdar in purchase proceedings was challenged before the Deputy Collector which was dismissed and Mundkar Revision Application preferred by the appellants herein challenging the appellate order, was partly allowed for conducting enquiry to the matter in accordance with law and Administrative Tribunal passed speaking order. According to Mr. Ferreira, thereafter, Joint Mamlatdar demarcated the area to which the respondents are entitled to the extent of 180 square metres as shown in the plan, which has already been taken on record. According to Mr. Ferreira, the structure as exists today, comes within demarcated area and as such, at this stage, granting of any relief of mandatory injunction in favour of the appellants, does not arise. He, therefore, submitted that as on date, the cause of action in respect of prayer for demolition in favour of the appellants, no more survives. Mr. Rivonkar did not dispute that in terms of the order passed by the Tribunal in Mundkar Revision Application No.3/2009, the area occupied by the respondents has been demarcated and an area of 180 square metres has been demarcated instead of 200 square metres although the suit property situated within the Margao city. 10. In view of the above position, it is evident that the relief of mandatory injunction sought by the appellants/plaintiffs, is no more available to the plaintiffs since purchase proceedings initiated by the respondents have reached finality. 11. In the result, therefore, no case is made out by the appellants for interference with the impugned judgment and order. Accordingly, the appeal stands dismissed. The parties to bear their own costs. Appeal dismissed.