IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPLICATION NO. 227 OF 2009 IN SECOND APPEAL NO. 21 OF 2007 SHRI PETER ALIAS PEDRO FERNANDES AND ANR. ... Applicant Versus SHRI PIADADE RODRIGUES AND ANR. ... Respondent Mr. M. G. S. Khandeparkar, with Mr. Prashant Vengurlekar,Advocates for the appellants. Mr. J. F. Mello, Advocate for the Respondents. Coram:- U. D. SALVI, J. Date:- 9th February, 2010 P.C. Heard. 2. Perused application, reply, rejoinder and annexures therewith. 3. The Second Appeal preferred against the orders of disposal of the suit and appeal therefrom instituted for the purpose of protecting easementary right to the light and air has been admitted on the substantial question of law, as to whether it is absolutely necessary to make prayer in the plaint for declaration regarding the existence of right of easement by prescription vide order dated 13.7.2007. 4. It appears that the construction of veranda undertaken by the respondents in October, 2009 prompted an application for injunction i.e. the present Civil Application No. 27/2009. Order dated 16.10.2009 directing the respondents to maintain status quo in respect of the veranda as seen in the photographs annexed to the said application came to be passed in the presence of the advocates of the parties. 5. Learned Advocate Mr. Khandeparkar for the appellant/applicant submits that the construction of canopy over the veranda has been carried out in violation of the status quo order and in breach of the obligation to maintain the rights of easement available to the appellants by prescription uninjured. 6. It is further submitted that the construction of canopy has been carired out illegally without valid sanction therefore, from the local authorities. 7. Learned Advocate Mr. J.F.Mello for the respondents submits that inorder to succeed in the present petition, the appellant is required to make out a case that his plaint fulfills the requirements of Section 33, 34 and 35 of the Indian Easements Act, 1882, and there is no violation of the order of status quo passed in the present appeal. 8. It appears from para 19 of the plaint that the reason for instituting the suit in the year 1992 was the beginning of the construction made by erecting a pillar regardless of the objections from the plaintiffs/appellants herein, when the intentions to construct a veranda became apparent. 9. It is this offending structure according to the appellants which stands at 1.50 meters from the northern boundary line of the plaintiff of his plot and injures his easementary rights to light and air. 10. It is not in dispute that permission to construct this structure was solicited by the respondent No. 1, Piedade Rodrigues alias Godwin Rodrigues on 1.10.2009, much after the commencement of the said construction. Application for such permission speaks only of renovation to the existing structure and makes no reference to the construction as it is presently seen. It appears that construction of this veranda was halted upon order of temporary injunction passed in the said suit and it was revived in the month of October 2009, pursuant to the N.O.C. granted by Village Panchayat vide letter dated 23.10.2009. Letter dated 23.10.2009 of Village Panchayat speaks of granting of N.O.C.by the Panchayat to do the repairs to the damaged house without undertaking alteration to the existing plinth area of the structure. 11. Photographs annexed to the application clearly depict all the stages of construction in progress at the site on 10th, 11th and 15th October, 2009 i.e. before the Village Panchayat had granted any N.O.C. A statement is made that presently the structure stands as seen in the photographs i.e. second photograph at page 11 and one photograph on page 11-A, of the same date. No violation of order of status quo can therefore, be gathered from the facts disclosed in the present case. 12. It is however, abundantly clear that the offending structure has come up after the admission of the present appeal. The respondents are therefore, under obligation to remove it in the event the decision in the appeal goes against them. The offending construction of the roof of veranda, as seen in the photographs shall therefore remain subject to the decision in the present appeal and shall be removed at the cost of the respondents, if the appellant succeeds in the present appeal. 13. Civil Application No. 227/2009 stands disposed off accordingly. U. D. SALVI, J. MF/-