1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NOS. 42 AND 96 OF 2006 Keshav Shanu Gaude, son of late Shanu Gaude, major, married, service, residing at Namas, Agapur, Durbhat, Ponda, Goa. ... Appellant versus 1. The Sarpanch, Village Panchayat of Durbhat, Durbhat, Ponda, Goa. 2. Shri Ganpat G. Bakhale, A-1 Cardoso Appts., Patto, Panaji, Goa. 3. The Chief Secretary, Government of Goa, Secretariat, Panaji, Goa. 4. The Chief Engineer, P.W.D. Water Works Dept., Altinho, Panaji, Goa. ... Respondents Shri J. E. Coelho Pereira, Senior Advocate with Shri S. Karpe, Advocate for the Appellant. Shri N. K. Sawaikar, Advocate for Respondent No.2. Shri S. Vahidulla, Government Advocate for Respondent Nos.3 and 4. 2 CORAM : F. M. REIS, J. DATE : 31ST MARCH, 2011. ORAL JUDGMENT Both the appeals are partly allowed. 2. Heard Shri J. E. Coelho Pereira, learned Senior Counsel appearing on behalf of the appellant, Shri N. K. Sawaikar, learned Counsel appearing for respondent No.2 and Shri S. Vahidulla, learned Government Advocate appearing for respondent Nos.3 and 4. 3. Both these appeals were taken up together for final hearing in view of the Order passed by this Court dated 21-7-2006. The parties shall be referred to in the manner they so appear in the impugned Judgment. 4. The plaintiff filed a suit on the ground that his late father about 54 years back constructed a hut in the property “NAMAS” and took possession of the property Namas which is presently surveyed under Nos.47/1 and 48/2 of village Durbhat in Ponda Taluka. It is further 3 their case that his late father had planted coconut trees, mango trees and jackfruit trees and also started the cultivation of paddy. It is further their case that the plaintiff did repairs and maintenance of the suit house and the same was being occupied by the plaintiff, his wife and children. It is further their case that one Ganpat Govind Bakhle was illegally trying to interfere in the suit property. A suit came to be filed by his late father whereby the said Shri Ganesh was restrained from interfering with the suit house by Order dated 15-4-1995. It is further his case that the said Bakhle started harassing the plaintiff and wanted to dispossess the plaintiff and his family members of the suit property and the suit house. It is further his case that the Court below has protected his possession in respect of the suit property and the suit house and further for the reasons stated in the plaint the suit came to be filed praying, inter alia, for a mandatory injunction directing the defendant to withdraw the revocation of the NOC for water connection dated 5-5-2001 and not to obstruct the release of water to the plaintiff. 5. In the said suit, the written statement came to be filed by defendant No.2 disputing the claim put forward by the plaintiff and a counterclaim was also filed for a declaration that defendant No.2 is the 4 owner of the suit house and the suit property and that the plaintiff is a trespasser of the suit house and the suit property without any right and be directed to hand over the vacant possession of the suit house immediately to the said defendant besides payment of compensation. The written statement to the said counterclaim was also filed by the plaintiff disputing the contentions of the said defendant. 6. The learned Judge after framing the issues and recording the evidence has by Judgment and Decree dated 22-12-2005 dismissed the suit filed by the plaintiff whereas the counterclaim filed by defendant No.2 was decreed and the plaintiff was directed to hand over possession to defendant No.2. Being aggrieved by the said Judgment, the appellant/ plaintiff has preferred the present appeals challenging the dismissal of the suit and the decree in the said counterclaim. 7. Shri J. E. Coelho Pereira, learned Senior Counsel for the plaintiff has pointed out that both the appeals are challenging the same Judgment. One is with regard to the dismissal of the suit filed by the plaintiff whereas the second appeal challenges the grant of the reliefs in the counterclaim filed by defendant No.2 and as such, the plaintiff has 5 preferred the two appeals challenging the impugned Judgment. Shri Coelho Pereira, learned Senior Counsel has taken me through the impugned Judgment and pointed out that the learned Judge has not at all discussed the evidence adduced by the parties nor scrutinized any such evidence nor given any adequate reasons whilst disposing of the suit and the counterclaim. Learned Senior Counsel pointed out that both the parties have brought evidence on record to substantiate their rival claims which have not at all been appreciated by the learned Judge and as such the matter deserves to be remanded to decide the matter afresh. 8. Shri N. K. Sawaikar, learned Counsel for respondent No.2/defendant No.2 has fairly conceded that there is no discussion by the learned Judge about the material produced by both the parties whilst passing the impugned Judgment though he disputes the claim of the plaintiff on merits. 9. Both the learned Counsel thereafter pointed out that instead of this Court re-appreciating the evidence on record and deciding the disputes between the parties, it would be appropriate that the matter be remanded to the learned Judge to decide the said suit afresh after hearing 6 both the parties in accordance with law. Both the parties further submitted that there is no need of giving any reasons for making such remand to the learned trial Judge. 10. After hearing the learned Counsel and on perusal of the record, the following Order is passed by consent of both the parties. ORDER 1. The impugned Judgment and Decree dated 22-12-2005 is quashed and set aside. 2. Civil Suit No.256 of 2004(new) is restored to the file of the learned Additional District Judge at Panaji. 3. The learned Judge is directed to decide the said suit and the counter claim afresh after hearing all the parties in accordance with law. 4. In case any of the parties desire to adduce any additional evidence, liberty is given to the parties to file an appropriate application and the same shall be considered by the learned Judge after hearing the parties on its own merits in accordance with law. 5. The appeal stands disposed off accordingly with no order as to costs. 7 6. Parties are directed to appear before the learned Additional District Judge, Panaji, on 18-7- 2011 and abide by its further directions. F. M. REIS, J. RD