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2014 DIGILAW 2013 (BOM)

Claudio S. X. Pereira v. Mohan Vasudev Salkar

2014-09-17

U.V.BAKRE

body2014
Judgment : 1. Heard Mr. Coelho Pereira, learned Senior Counsel appearing on behalf of the petitioners. The respondents were duly served before admission as well as after admission of the petition, but have chosen to remain absent. 2. By this petition, the petitioners have taken exception to the order dated 29.09.2007 passed by the learned Civil Judge Junior Division, Vasco-da-Gama, Goa (trial Court) in Regular Execution Application No. 15/04/D. 3. The petitioners were the plaintiffs and the respondents were the defendants in Regular Civil Suit No. 13/1999/C. By judgment, order and decree dated 11/01/2001, then said was decreed as per the consent terms filed before the Trial Court. The said consent terms read as follows : 1) The defendants herein admit that the plaintiffs are the owners in possession and enjoyment of a plot of land admeasuring 415 square metres with a house constructed by the plaintiffs therein out of the property surveyed under Chalta No. 33 of P. T. Sheet No. 126/A in the records of City Survey, Vasco-da-Gama, Goa situated at Adarshnagar, Vasco-da-Gama, Goa and which plot is shown in red colour outline in the plan annexed hereto and existing tarred road access will be maintained. 2) The plaintiffs shall on the basis of the consent decree to be passed in the suit obtain the partition of the said plot of 415 square metres as a separate holding from the concerned City Survey office or any other Authority. 3) After obtaining the partition of the said plot, the defendants shall execute a deed of sale conveying the said plot to the plaintiffs at the entire cost of the plaintiffs if need be. 4) The parties shall bear their respective costs in the suit. 5) The parties hereto, therefore, prays that the suit be decreed in terms of the above consent terms.” 4. It appears that consequent upon the said decree, the sale deed was executed by the defendants in favour of the plaintiffs. However, the decree was not fully satisfied and hence the Petitioners/plaintiffs filed Regular Execution Application No. 15/04/D. According to the petitioners, the second part of the decree of maintaining 6 metres wide tarred road access as it existed, was not complied with by the respondents who were the defendants in that suit. The decree holders had engaged the services of an Architect namely, Mr. Mohan Tendulkar to inspect the site and prepare the inspection report. The decree holders had engaged the services of an Architect namely, Mr. Mohan Tendulkar to inspect the site and prepare the inspection report. It was alleged that the judgment debtors had built a compound wall on the road and put a gate and blocked the road at south-east point of the plot and built Block-I in adjoining plot 33/126-A and encroached upon the said 6 metres wide tarred road. By application dated 09/03/2006, filed in the said execution application, the petitioners (decree holders) therefore, prayed that the respondents (judgment debtors) be directed to clear the 6 metres wide tarred road provided as per the decree, by removing the compound wall built by the judgment debtors. 5. By way of reply, the judgment debtors alleged that as per the decree, the plot has been duly conveyed and that necessary access was duly provided. They alleged that they neither constructed any wall on the road nor encroached upon any portion of the road. 6. Inquiry was conducted by the trial Court in which the decree holders examined the decree holder no. 2, Jessie Pereira, as AW1 and also the said Architect namely, Mr. Mohan Tendulkar, as AW2. The judgment debtors did not examine any witness. By the impugned order dated 29/07/2007, the trial Court dismissed the said Execution Application, holding that the decree is fully satisfied. 7. I have perused the material on record and considered the submissions made by the learned Senior Counsel. 8. In her evidence, AW1 specifically stated that the encroachment was done on the road and the road blockade was also done on the southern side of the plot. She deposed that the same has been shown by her surveyor on a plan along with the inspection report. In the cross examination, AW1, the decree holder no. 2 could not tell as to who had made the blockade. However, She added that since the road was given by Salkar, they must have constructed the blockade. She also stated that the said road was blocked by the judgment debtors because there was the name of Salkar on the building. The Architect namely, Mr. Mohan Tendulkar(AW2) has proved the inspection report prepared by him and the sketch which showed the said encroachment, blocking the road which had to be maintained as per the decree. The judgment debtors did not lead any evidence, to rebut the evidence of the decree holders. The Architect namely, Mr. Mohan Tendulkar(AW2) has proved the inspection report prepared by him and the sketch which showed the said encroachment, blocking the road which had to be maintained as per the decree. The judgment debtors did not lead any evidence, to rebut the evidence of the decree holders. 9. It was duly proved that 6 metres wide road which was existing and had to be maintained as per the consent decree, was actually blocked by constructing a compound wall and the gate. The trial Court could not have dismissed the Execution Application by holding that the decree was fully satisfied. The evidence on record clearly established that the decree insofar as 6 metres wide road, is concerned, was not complied with. It has been clearly held by the trial Court that the execution of sale satisfied the first part of the decree and that the other part of the decree required the judgment debtors to maintain existing tarred road access to the plaintiffs. Again, it has been clearly held by the trial Court that the evidence of AW1 and AW2, no doubt, proves the blockade of the road by construction of compound wall. However, it has been added that by no stretch of imagination, it proves the construction of compound wall or encroachment thereby blocking access to be maintained as per the decree, to have been done by judgment debtors. In fact the evidence on record, by preponderance of probabilities, established that the said encroachment was done by none else than the judgment debtors, who were otherwise duty bound to maintain the existing tarred road access to the decree holders. 10. In view of the above, the impugned order cannot sustain and the same is required to be quashed and set aside with a direction to the trial Court to proceed to take further steps to execute the said consent decree. 11. Hence, the impugned order is quashed and set aside. The Regular Execution Application No. 15/04/D stands restored to the file of the Executing Court. The trial Court shall proceed to execute the decree by taking further steps. Parties to appear before the Trial Court on 07.10.2014 at 10:00 a.m. Rule is made absolute accordingly. 12. The petition stands disposed of.