1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 137 OF 2005 1. Shri Lovin Ferrao, son of Richardo Ferrao, major, married, resident of House No.140, Dandvaddo, Sirlim, Salcete-Goa. 2. Smt. Eulalia Ferrao, married, resident of House No.140, Dandvaddo, Sirlim, Salcete-Goa. ... Appellants versus 1. State of Goa, through Chief Secretary, Government of Goa, Secretariat, Porvorim, Bardez-Goa. 2. Executive Engineer, Sub-Division I, Works Division VI, P.W.D., Fatorda, Margao-Goa. 3. Assistant Engineer, Sub-Division I, Works Division VI, P.W.D., Fatorda, Margao-Goa. ... Respondents Shri D. Pangam, Advocate for the Appellants. Shri M. Salkar, Government Advocate for the Respondents. 2 CORAM : F. M. REIS, J. DATE : 1ST JULY, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Decree dated 11-10-2004 passed by the learned Additional District Judge, Margao in Regular Civil Suit No.73 of 2004. 2. In short, it was the case of the Appellants that they are the owners in possession of a plot of land known as Dandevadeantum alias Dandoradrantum em que existume case de Moroda situated at Sirlim within the jurisdiction of Gram Panchayat of Dramapur and registered in the Land Registration Office under No.20838 new series and surveyed in the Records of Rights under Nos.40/13 and 40/15. It is further their case that there was no access of road in the said plot of land surveyed under No.40/15 of Sirlim village and that Respondent Nos.2 and 3 dumped the materials into the property of the Appellants bearing No.40/15 on 4-5-2003. It is further their case that despite of objections raised by the Appellants with regard to such activities being carried out by the Respondents, the Respondents went ahead and constructed a road 3 over the said property. The Appellants thereafter lodged a complaint on 6-5-2004 to Respondent No.2 who directed the Appellants to produce the documents. As no remedial measures were being taken by the Respondent who forcibly constructed the road through the property of the Appellants, the suit came to be filed praying, inter alia, for a mandatory injunction to remove the asphalted road as well as for compensation to the tune of Rs.5000/- for carrying out such illegal acts. The Respondents after due service filed their written statement on behalf of Respondent No.2. Essentially, it is the claim of Respondent No.2 that the PWD has not constructed any road through the property of the Appellants. It is further their case that as no such road was constructed by the PWD, the question of granting any reliefs as prayed in the said suit would not arise. The learned Judge after framing the issues and recording the evidence of the Appellants has by the impugned Judgment dated 11-10-2004 dismissed the suit filed by the Appellants. Being aggrieved by the said Judgment, the Appellants have preferred the present appeal. 3. Shri D. Pangam, learned Counsel for the Appellants has assailed the impugned Judgment and has pointed out that once it is 4 established that the Appellants were the owners of the property surveyed under No.40/15 and considering that the Respondents have not established that no legal measures were taken for the purpose of constructing a road through the property of the Appellants, the reliefs sought for by the Appellants deserves to be granted. Learned Counsel further submitted that the only contention raised by the Respondents in their written statement is that the PWD did not carry out the construction of the road. He further submitted that considering the contentions in their written statement, the Appellants have duly established that admittedly no acquisition proceedings were initiated by the Respondents to construct any road through the property surveyed under No.40/13. Learned Counsel further submitted that Respondent No.1 did not file a written statement which itself establishes that the Appellants have proved that the road which was constructed through the property of the Appellants is without any authority of law. Learned Counsel took me through the evidence on record and pointed out that considering the suggestions put to the Appellants in the cross-examination, the only inference that could be drawn is that the claim of the Respondents is that though the PWD had not constructed the road the same was done by the contractor of the PWD. Learned Counsel as such submitted that the 5 impugned Judgment deserves to be quashed and set aside and the suit deserves to be decreed. 4. Shri M. Salkar, learned Government Advocate for the Respondents has joined issue with the submissions advanced by the learned Counsel for the Appellants. He submitted that it is the case of the Respondents that the PWD has not constructed any road through the property of the Appellants surveyed under No.40/15. Learned Government Advocate further submitted that once it is the claim of the Respondents that they had not constructed the said road, the Appellants would be at liberty to take measures available in law to remove the road alleged to have been constructed in their property and the Respondents have no claim thereto. Learned Government Advocate further submitted that as per the survey records, no public road is shown through the property of the Appellants surveyed under No.40/15 and as such, the question of the Respondents putting up any claim would not arise. The Appellants have failed to establish that any road was constructed by the Respondents and as such, the learned Judge was justified to dismiss the suit filed by the Appellants. 6 5. Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present appeal: Whether the learned Judge was justified to dismiss the suit filed by the Appellants? 6. On perusal of the plaint filed by the Appellants, it has been categorically pleaded by the Appellants that there were no acquisition proceedings initiated by the Respondents in respect of any portion of the land surveyed under No.40/15. The said fact has not been disputed by the Respondents in their written statement. Considering the submission of the learned Government Advocate to the effect that the Respondents have no claim in the said road and that such road has not been constructed by the Respondents, I find that it would be appropriate that the Appellants would be at liberty to take measures in law to remove the said road on the basis of the said statement of the learned Government Advocate which is accepted. Considering the stand taken by the Respondents and the submissions of the learned Government Advocate, Shri D. Pangam, learned Counsel for the Appellants has submitted that in case the said statements of the learned Government Advocate is 7 recorded, the Appellants would be at liberty to take measures to remove the said road in the manner deemed fit in law. In view of the said statements of the learned Counsel of the Appellants there is no need to consider the correctness of the findings of the learned Judge in the impugned Judgment. The point for determination is answered accordingly. 7. In view of the above, the appeal stands disposed of with no orders as to costs. F. M. REIS, J. RD