1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.19 OF 2010 SHRI KASHINATH GANU DABHOLKAR (DECEASED) THROUGH LR'S AND ANR. …. Appellants V/S SHRI VISHWANATH G. DABHOLKAR (DECEASED) THROUGH LR'S AND ANR. …. Respondents Shri Anthony D'silva, Advocate for the Appellants. Shri S.D. Lotlikar, Senior Advocate with Ms. Sudha Pai Kir, Advocate for Respondents No.1(a) to 1(o). CORAM : F.M. REIS, J. DATE : 18th NOVEMBER, 2011 ORDER: Heard Shri Anthony D'Silva, learned Counsel appearing for the appellants and Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondents. 2. The above appeal challenges the judgment passed by the lower Appellate Court whereby the appellants have been directed to remove the encroachment made in the property surveyed under no.5/1 of Nerul village located within the area of 300 square metres purchased by the respondents pursuant to a Purchase Application under the Mundkar Act dated 26/04/1994. 2 3. Shri A. D'Silva, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that by the said Purchase Application, the respondents have purchased an area within the dwelling house of the appellants who are also independent mundkars of the same property. Learned Counsel pointed out that the Purchase Application relied upon by the respondents cannot in any way defeat the right of the respondents as far as the disputed portion is concerned, as according to him, such disputed portion forms part of their dwelling house. Learned Counsel further pointed out that considering that the appellants have already filed for purchase before the concerned Authority unless and until such exercise is complete the question of directing removal of the structures existing in the portion of the property purchased by the respondents pursuant to the Purchase Certificate does not arise at all. Learned Counsel pointed out that the lower Appellate Court has not at all considered the said material on record while passing the impugned judgment and, as such, there is a substantial question of law which arises in the present appeal which calls for interference by this Court. 4. Shri S.D. Lotlikar, learned Senior Counsel has disputed the 3 contentions of the learned Counsel appearing for the appellants. Learned Senior Counsel has pointed out that once the Purchase Certificate has become final the title and ownership in respect of such portion of the land vests on the respondents and, as such, the appellants are not entitled to claim any right over the land purchased by the respondents. Learned Senior Counsel further pointed out that the disputed construction put up by the appellants were after the Purchase Certificate has been granted in favour of the respondents and, as such, such act on the part of the appellants cannot be protected in law as it amounts to trespass into the property of the respondents. Learned Senior Counsel pointed out that the fact finding Court has come to the conclusion that such encroachment has been carried out after the Purchase Certificate has been issued in favour of the respondents and, such findings of fact cannot be interfered by this Court under Section 100 of the Civil Procedure Code. Learned Senior Counsel further submitted that the respondents have no claim to any portion of the property beyond the said area of 300 square metres purchased by them pursuant to the said Purchase Certificate and the area occupied by the appellants does not fall in any such portion and that the respondents have no objection in case the appellants purchased any 4 area beyond the said area of 300 square metres. Learned Senior Counsel, as such, submitted that there is no substantial question of law which arises in the above appeal which calls for adjudication under Section 100 of the Civil Procedure Code. 5. On perusal of the record and considering the finding of the lower Appellate Court, I find that the fact finding Court has come to the conclusion that the encroachment has been carried out by the appellants after the Purchase Certificate was issued way back in the year 1994. There is no dispute that the original appellant no.1 and original respondent no.1 were brothers. Considering the said aspect, as the respondents have already issued the Sanad in terms of the provisions of the Mundkar Act, the area purchased by the respondents vests on the respondents in ownership and possession. The appellants are not entitled to encroach into such area which belongs to the respondents. Apart from that, it is not disputed that the appellants have not challenged such Purchase Certificate by filing any proceedings as contemplated under the Mundkar Act. As the Purchase Certificate has become final, it was not open for the appellants to encroach into such area purchased by the respondents admeasuring an area of 300 square metres. As such, the lower 5 Appellate Court was justified to come to the conclusion that such structures put up by the appellants are illegal and, as such, are liable to be demolished. Considering the finding of the lower Appellate Court to that effect, I find that there is no substantial question of law which arises in the present appeal. The learned Counsel appearing for the appellants was unable to point out any error committed by the lower Appellate Court in coming to such conclusion. Taking note of the statement of learned Senior Counsel to the effect that the respondents have no claim or any objection if the appellants purchased any area beyond the said 300 square metres in accordance with the provisions of the Mundkar Act. I find that no prejudice shall be caused to the appellants in case the impugned judgment is upheld. 6. As such, I find that no interference is called for in the impugned judgment and, as such, the Second Appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-