-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 44 OF 2003 1. Smt. Diana Rodrigues, aged 43 years old, married, resident of Gauvin, Tivim, House No. 241, Bardez – Goa. 2. Smt. Cascilda Rodrigues, aged 55 years, spinster, resident of Bombay, represented by her Power of Attorney Smt. Diana Rodrigues, the Appellant No. 1, resident of Gauvin, Tivim, Bardez-Goa. …... Appellants V e r s u s 1. Mr. Anton Xavier E. D' Souza, aged 75 years old, married, and his wife, 2. Smt. Maggie A. X. D' Souza, aged more than 60 years, Both residents of House no. 242, Gauvin, Tivim, Bardez, Goa. …... Respondents Mr. Shivan Dessai, Advocate for the Appellants. Mr. S. D. Lotlikar, Senior Advocate with Ms. Vinita Palyekar, Advocate for the Respondents. Coram :- F. M. REIS, J Date : 17 th October, 2011. ORAL JUDGMENT Heard Shri Shivan Dessai, learned Counsel appearing for the Appellants and Shri S. D. Lotlikar, Senior Advocate appearing for the Respondents. -2- 2. The above Second Appeal has been admitted by Order dated 01.08.2003 on the following substantial question of law : 1. Whether the Judgment of the learned Addl. District Judge, considering the Decree in Regular Civil Suit no.89/2000/B, can be sustained ? 2. Whether considering the evidence on record, the learned appellate Judge could have reversed the Judgment of the trial Court ? 3. Shri Shivan Dessai, learned Counsel appearing for the Appellants, has assailed the impugned Judgment and pointed out that the findings in the Judgment passed in favour of the Appellants in Regular Civil Suit no. 89/2000/B dated 31.10.2009, wherein the Respondents are parties, have become final as according to him the Respondents have not challenged the said Judgment. The learned Counsel further pointed out that by the said Judgment, the Appellants have been declared to be the owners in possession of the suit property. The learned Counsel further points out that in view of the said declaration, it is not open to the Respondents to now contend that the Appellants have no title and possession of the suit portion of the property which is surveyed under no. 303/11 and 303/12. The learned Counsel further points out that the rights of the Respondents are restricted to the property surveyed under no. 303/13 at Tivim Village and beyond the said property surveyed under no.303/13, the Respondents have no right at all to interfere in the property of the Appellants. The learned Counsel has taken me -3- through the Judgment passed in the said suit and pointed out that considering the findings rendered therein, the impugned Judgment cannot be sustained and deserves to be quashed and set aside. 4. On the other hand, Shri S. D. Lotlikar, learned Senior Counsel appearing for the Respondents, has, upon instructions, pointed out that in fact the Respondents have not challenged the Judgment and Decree passed in Regular Civil Suit no. 89/2000 dated 31.10.2009. The learned Senior Counsel does not dispute the fact that the suit property in the said proceedings and the suit property in the present Appeal, are one and the same and, as such, the declaration of ownership and possession in favour of the Appellants has become final for want of Appeal by the Respondents. The learned Counsel further points out that there are some branches of the trees existing in the property surveyed under no.303/12 of Tivim Village which are protruding into the property of the Respondents surveyed under no. 303/13 and, as such, unless and until such branches are cut and are removed, the question of granting any injunction in favour of the Appellants against the Respondents not interfering with the suit property, would not arise at all. Learned Counsel further points out that the Appellants are not entitled for injunction as prayed for in view of the fact that the branches of such trees are protruding into the property of the Respondent. The learned Counsel as such submitted that unless such branches are cut, there is no question of granting any injunction in favour of the Appellants. 5. In reply to the contention of Shri Lotlikar, learned Senior Counsel appearing for the Respondents, Shri S. Dessai, learned Counsel appearing for the -4- Appellants points out that in case any such branches are protruding into the property of the Respondents surveyed under no. 303/13, the Appellants shall cut and/or remove such branches within 2 months. The learned Counsel further points out that merely because such branches are protruding into the property of the Respondents surveyed under no. 303/13 by itself does not disentitle the Appellants from obtaining the injunction as prayed for in the suit. The learned Counsel as such submits that in view of the findings in the said Regular Civil Suit, the impugned Judgment passed by the lower Appellate Court, cannot be sustained and deserves to be quashed and set aside. 6. Having heard the learned Counsel and on perusal of the record, I find that in fact by Judgment and Decree passed in Regular Civil Suit no. 89/00/B by the learned Civil Judge, Senior Division, at Bicholim, the Appellants are held to be owners in possession of the suit property which includes the property surveyed under no. 303/11 and 303/12 of Tivim Village. As no Appeal has been preferred against the said Judgment by the Respondents, the findings rendered therein have become final. As such, the lower Appellate Court was not justified to discard the said Judgment passed which at the relevant time was an exparte Decree which came to be subsequently set aside by the learned District Judge and thereafter the Judgment dated 31.10.2009 in Regular Civil Suit no. 89/2000/B, was passed on merits after hearing both the parties. In view of the findings therein, the first substantial question of law framed by this Court are answered in favour of the Appellants. As such, in view of the Judgment passed in Regular Civil Suit no. 89/2000, the Judgment of the Lower Appellate Court cannot be sustained. -5- 7. Dealing with the contention of learned Senior Counsel appearing for the Respondents in view of the statement of the learned Counsel appearing for the Appellants to the effect that the branches of the trees protruding into the property of the Respondents surveyed under no. 303/13 would be cut within a period of two months which statement is accepted, I find that the apprehension of the learned Senior Counsel would not survive. In view of the above, it is held that the Appellants are the owners in possession of the suit property surveyed under no. 303/11 and 303/12 and, as such, the Appellants are entitled for the injunction as granted by the learned Trial Judge by Judgment dated 04.02.2000. The Judgment of the lower Appellate Court as such stands quashed and set aside. 8. In view of the above, I pass the following : ORDER (i) The Appeal is allowed. (ii) The impugned Judgment and Decree dated 18.02.2003 and the corrigendum dated 11.03.2003, is quashed and set aside. (iii) The Judgment of the learned Trial Judge dated 04.02.2000 in Regular Civil Suit no. 62/1990/B, is confirmed. (iv)The Appeal stands disposed of accordingly with no orders as to costs. F .M. REIS, J. arp/*