1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 186 OF 2009 Mrs. Lennet Godinho & 7 Ors. .... Petitioners V/s Mrs. Sarojini Nunes & Ors. .... Respondents Mr. S.D. Lotlikar, Senior Advocate with Mr. P.S. Lotlikar, Advocate for the Petitioners. Mr. Sudesh Usgaonkar, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 4 th APRIL, 2009 ORDER : Challenge in this Writ Petition filed by the judgment/debtors (defendants, for short) is to 2 orders of the learned CJSD in Execution Proceedings No. 16/04/D taken against them. By the first order dated 7/10/2008, the learned trial Court ordered the execution of the decree and directed the clearing of the suit way within a period of 20 days, failing which the bailiff was directed to go to the site and clear the track of the suit way as per sketch at Exhibit PW1/B in the suit. After the bailiff reported on or about 7/12/2008 that within the track there were 3 big coconut trees, one coconut sapling and one jack fruit tree and while cutting one of the coconut trees the defendants had obstructed the cutting, the decree holders (plaintiffs, for short) field an application for extension of warrant and by virtue of order dated 5/03/2009, the learned trail Court extended the date and directed the removal 2 of 3 coconut trees and 2 coconut saplings which posed hurdle in the suit way. In ordering the cutting of the said trees, the learned trial Court observed that only because there was no word to cut the tress from the track mentioning the decree, it did not amount that the trees were not to be removed or cut and the said trees existing would amount the interference on the way of the decree holder, if not removed. 2. Be that as it may, the dispute between the parties as regards the 4 mts. way claimed by the plaintiffs appears to be almost 3 decades old when the plaintiffs filed RCS No. 86/76 against the defendants, inter alia, praying that the defendants be directed to demolish a part of the wall constructed by them on the Eastern side of their property to the extent of 4 mts. and to remove all the plantations done by them on the said easementary way and also for the removal of the fire wood, etc. The decree passed in favour of the plaintiffs and against the defendants was confirmed by the District Court. A second appeal filed therefrom was rejected by this Court by judgment dated 11/07/1986 in Second Appeal No. 7/1986 and was executed by bailiff of the Court on 11/02/1987. The bailiff reported that he had cleared the stretch of land inside the property so as to keep open the access to the extent of 4 mts. up to the iron gate existing on the Northern compound wall of the house of the property of the decree holder. The plantation which was removed was also mentioned in the said report and which included a breadfruit sapling, 3 banana, papaya, mango saplings, etc. 3. However, what is relevant to this petition according to the defendants is that this Court at the time of dismissing the second appeal on 11/07/1986 had made the following observations; “7. Shri Usgaonkar, the learned Counsel appearing for the respondent, stated that though in the decree of the trial Court there is a direction to the appellants to remove from the way of access all the plantation done by them as well as the firewood, the respondent will not press for the cutting of any existing tree. In fact, according to the learned Counsel, at present, there is no tree or plantation in the said way of access, as otherwise was recorded by the trial Judge in his Inspection Memo which forms part of the record of the trial Court.” 4. That was the first chapter, if I may use that expression, of the story of access claimed by the plaintiffs. Thereafter, on or about 9/04/1987, the defendants constructed a structure on the said way which compelled the plaintiffs to file RCS No. 58/1987 on 16/07/1987 with the following reliefs ; (a) the defendants, their agents, servants and family members be restrained by way of permanent injunction from interfering in whatsoever manner with the suit way (easementary way) available to the plaintiff through their property and which was opened by the bailiff on 11/2/1987 under a warrant issued by this Hon'ble Court in Execution Application No. 26 of 1986, either by placing any materials, erecting any structures or planting any trees or in any other manner; (b) the Defendants be directed by way of mandatory injunction to demolish the structure raised by them on the suit way (easementary way), which was opened by the bailiff, as stated above, and also to remove all the materials including any new structures, if raised, pending final disposal of this suit on or across the suit way. 4 and in the said suit filed an application for injunction, which it is submitted, was granted in favour of the plaintiffs. The defendants filed an appeal therefrom before the District Court and the District Court was pleased to appoint a Commissioner and the said Commissioner vide report dated 17/08/1988 pointed out the existence of certain trees, and, as per his opinion, the coconut trees were more than 20 years old and so also was the jack fruit tree. He also reported that at the time of his inspection, 4 mts. wide road was not in existence through the property of the defendants, to proceed to the property of the plaintiffs as there were obstructions on the way as indicated by him in the said report. The plaintiffs had filed objections to the said report on 23/09/1988 and what was contended therein was that the contention of the defendants that the bailiff while executing a decree had cut the trees was not correct. The jack fruit and coconut trees were standing as per the statement made by the advocate of the appellant before the High Court. It was also stated that the appeal will have to be allowed by directing the respondents to remove obstructions except the coconut trees and the jack fruit trees. However, the appeal came to be disposed of by judgment/order dated 17/03/1989 by the learned District Judge who restrained the defendants from interfering with the suit way available to the plaintiffs and which was opened by the bailiff on 11/02/1987. The defendants were also directed to demolish the part of their construction falling within 4 mts. wide way to which the plaintiffs were entitled and were further directed to remove whatever material 5 was kept by them except for the trees standing on the strip, etc. However, the said order came before this Court in CRA No. 70/1989 and by order dated 20/06/1989 this Court held that the learned District Judge could not have granted the mandatory injunction sought for by the plaintiffs and the order directing mandatory injunction was set aside. 5. Plaintiffs suit bearing RCS No. 58/1987 came to be decreed by the learned trial Court by judgment dated 4/10/2002 and the appeal filed therefrom came to be dismissed by the learned District Judge by judgment dated 7/04/2004 being RCA No. 185/2002 which has attained finality. 6. The learned Civil Judge by judgment dated 4/10/2002 decreed the suit and restrained the defendants from interfering with the plaintiffs right of way to the suit way in any manner whatsoever and directed the defendants to demolish the structure put up by them on the suit way. The counter claim was dismissed. The defendants were directed to pay the costs. 7. The plaintiffs filed Execution Application no. 16/04/D, and the defendants took various objections to the execution which came to be decided by order dated 5/03/2009. It can be seen from the reply filed, particularly, para XV wherein it was stated by the defendants as follows; “XV. The Judgment Debtors state that the Decree Holder seeks execution, to demolish an old latrine, used by the 6 Judgment Debtors and also removal of fruit bearing trees. The judgment Debtors state that the latrine is necessary for the hygiene of environment, prevent breeding of mosquitoes and the trees are grown without use of any human effort.” (emphasis supplied). It was further stated in sub-para IV that in the event the Court overruled their objections, the Judgment Debtors (defendants) will obey the orders pronounced by the Court. However, it can be seen that when the bailiff went to execute the decree and ordered the cutting of one of the coconut trees, some of the defendants objected to the same on the ground that the decree did not permit cutting of the coconut trees and there was no order from the forest department. This can be seen from the report of the bailiff dated 17/12/2008. That is the background of the controversy between the parties. 8. Shri Lotlikar, the learned Senior Counsel appearing on behalf of the defendants contends that the bailiff did not cut any of the existing trees on 11/02/1987 on account of the statement made by the plaintiffs before this Court on 11/07/1986 in the second appeal. Learned Counsel further submits that it is not the case of the plaintiffs that the trees which are now existing were replanted again. He further submits that the said trees cannot be permitted to be cut, firstly, because the plaintiffs had made a solemn statement before this Court that they would not cut the trees, and secondly, because the decree dated 4/10/2002 nor the order dated 7/10/2008 directed 7 the cutting of the trees. Learned Counsel further submits that the plaintiffs had also not asked for the removal of the said trees in their application for execution. Learned Counsel has placed reliance on the case of Keshardeo Chamria V/s. Radha Kissen Chamria & Ors. (AIR 1953 SC 23) and on the case of Gurdev Singh V/s. Narain Singh (AIR 2008 SC 630). The latter was a case where a decree for permanent injunction was granted but did not speak of removal of any tree which has already been planted. The finding of the executing Court was that there should not be any tree within 2 karams on either side of the common boundary of the parties. It was held that the direction was not in consonance with the tenor of decree. This is a case where there is a mandatory injunction granted as well. 9. Shri Usgaonkar, the learned Counsel appearing on behalf of the plaintiffs, submits that the existence of trees was the defence of the defendants which they had failed to prove and once they had failed to prove, there is no question of reopening the said issue again. Learned Counsel further submits that this petition in relation to order dated 7/10/2008 is hit by delay and the order dated 5/03/2009 is only consequent to the earlier order passed on 7/10/2008 and the defendants not having challenged the order dated 7/10/2008 within a reasonable period of time, the petition ought to be dismissed. Learned Counsel further submits that the inspection report of Shri Shinkre in the appeal before the District Court does not show that any of the 8 trees were on the suit way and, moreover, the defendant in para IV of their reply had admitted that the decree was fully satisfied, in the light of the report of the bailiff dated 11/02/1987. Learned Counsel further submits that the defendant had to explain, notwithstanding the report of the Commissioner, as to how the said trees came on the suit way, if the decree in execution application no.26/1986 was fully executed. Shri Usgaonkar therefore submits that the plea of the defendants as regards the existence of the trees, having been disallowed in the suit cannot be allowed to be re-agitated again. Referring to the observations of this Court in order dated 11/07/1986, learned Counsel submits that the same were more academic and in the nature of a concession and, therefore, the same cannot come in the way of the execution of the decree. We have seen the prayers in the second suit filed by the plaintiffs. The suit was decreed by the learned trial Court on 4/10/2002 by the following order; “The suit is decreed. The defendants are restrained from interfering with the plaintiffs right of way through the suit way in any manner whatsoever. The defendants are directed to demolish the structure, put up by them on the suit way. The counter-claim is dismissed. The defendants shall pay the costs.” 10. The concession made before this Court cannot be read out of context since on behalf of the plaintiffs it was also stated that there were no trees existing. The bailiff's report dated 11/02/1987 shows that the decree was fully executed. If there were any trees the bailiff would have said so in his 9 report. That decree was fully satisfied is an admission made in para IV of the reply. As per the defendants themselves, the now existing trees are grown without the use of any human efforts and if that be so, it was not necessary for the plaintiffs to say that they were replanted. The Commissioner's report or the reply filed to the said report were documents which presumably were not relied by the defendants in the trial of the suit and, therefore, the defendants cannot be allowed to refer to them at this stage. It appears that the said report disappeared in thin air, without being made use by the defendants in the trial of the suit by examining the said Commissioner. A perusal of the judgment of the trial Court dated 4/10/2002 shows that the defendants had taken a defence that a suit could not be decreed because of the existence of the toilet and fruit bearing trees along the way and in relation to it that issue no.3 appears to have been framed and which issue has been answered against the defendants and the appeal filed therefrom has been dismissed and the said finding has attained finality. Reply filed by the defendants to the execution application shows that according to the defendants themselves the said trees were grown without any human efforts and that being their plea, the defendants now cannot be allowed to refer to a report which was never made use of by the defendants and contend that as stated in the said report the trees were about 20 years old. The finding in relation to issue no.3 was not only against the defendants, but, the defendants also did not take a plea in their reply to the execution application that the decree is unexecutable because of 10 the existence of the said trees, apart from the fact that such a plea also would not have been available to the defendants in view of the findings against them in relation to the said issue no.3. The suit was decreed and obviously in terms of the prayers of the plaint and although it was stated in the decree that the defendants are directed to demolish the structure put up by them on the suit way and there was no particular reference to trees as such, it is pertinent to note that by virtue of prayer 'B' the plaintiffs had also sought a direction for removal of all the materials including any structure, if raised pending final disposal of the suit on or across the suit way. If the plaintiffs were held entitled to the said suit way of 4 mts. width as claimed by them the Court was required to do all that was necessary to give a complete relief to the plaintiffs. Not doing so would amount to frustrating the decree which the plaintiffs had succeeded in the first suit and again in the second suit. In other words, whatever came in the way of the 4 mts. way which the plaintiffs were held to be entitled to, had to be removed and that would be in consonance with the tenor of the decree. Any contrary view would have only frustrated the decree obtained by the defendants. The fact that the plaintiffs did not refer to the removal of the trees in their execution application was of no consequence. The plea taken by the defendants was negatived by the trial Court and could not have been allowed to be re-agitated in execution proceedings when time came or the execution of the decree. The view held by the learned executing Court is reasonable and calls for no interference. 11 11. In my view, there is no merit in this petition and, consequently, the same is hereby dismissed with costs of Rs. 5,000/-. At this stage, learned Senior Counsel prays for the stay of operation of this judgment. Considering the facts of the case where the plaintiffs have been held entitled to have a 4 mts. access, twice over, in my view, this is not a fit case to grant any stay. Prayer for stay therefore is rejected. N.A. BRITTO, J. NH/-