1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.311 OF 2005 Shri Madhukar Ganba Naik Gaonkar, resident of House No.38, Ward No.8, Sadar, near Dr. Dev Hospital, Ponda-Goa. …. Appellant V/s 1. Shri Vasant Sidbarao Sardessai, …Appeal stands resident of 5/56, Dadabhai Nauroji Nagar, dismissed. Jaiprakash Raod, Andheri (West), Mumbai – 400 058. 2. Shri Antonio Gaonkar, resident of 130A, Arlem, Raia, Salcete, Goa. 3. The Chief Officer, The Ponda Municipal Council, Ponda-Goa. 4. The Member Secretary, South Goa Planning & Development Authority (SGPDA), Ponda-Goa. 5. The Collector of North Goa, Office of the Collector of North Goa, Panaji-Goa. 6. The Chief Secretary, Government of Goa, Secretariat, Porvorim, Bardez-Goa. …. Respondents Mr. D. Pangam, Advocate for the Appellant. Mr. R.G. Ramani, Advocate for Respondent No.2. Mr. S.D. Padiyar, Advocate for Respondent No.3. 2 Mr. G. Shirodkar, Government Advocate for Respondents Nos.5 & 6. CORAM : F.M. REIS, J. DATE : 29th APRIL, 2011 JUDGMENT : The above appeal challenges the judgment and decree dated 19/08/2005, passed by the learned Additional District Judge at Panaji in Civil Suit No.251/2004 (new). 2. The appellant filed the suit claiming that he is occupying the house situated in the property of the respondents, which is surveyed under no.31/2 situated at Ponda and that the said respondents nos.1 & 2 have put up a construction in the said property and while erecting such construction, the respondents nos.1 & 2 have not maintained the requisite set back. It is further the contention of the appellant that in view of the said construction activity carried out by them the rights of the appellant to occupy the said house would be affected and, as such, the said suit was filed, inter alia, praying for a permanent injunction and for a declaration that the licences issued by the Authorities for putting up such construction in the said property are null and void and deserve to be quashed and set aside. 3 3. The respondents nos.1 & 2 filed their written statement disputing the claim of the appellant. It is their case that the suit itself was not maintainable and that the Court had no jurisdiction to proceed with the suit, as according to them the appellant had moved an application before the learned Mamlatdar for declaring that they are the mundkars of the said property. Apart from that, it was the case of the said respondents that the alleged claim of the appellant cannot be agitated before the Civil Court. The respondents nos.1 & 2 also disputed the contention of the appellant that he was occupying the suit house and that he was in possession of any portion of the suit house. The written statement further disclosed that for the reasons stated therein, the appellant is not entitled for any reliefs as claimed in the suit and, consequently, it was their case that the suit deserves to be dismissed. 4. After framing two issues and recording of evidence, the learned Judge dismissed the suit filed by the appellant by the impugned judgment dated 19/08/2005. Being aggrieved by the said judgment, the appellant has preferred the present appeal. 5. Shri Pangam, the learned Counsel appearing for the appellant has taken me through the issues framed by the learned 4 Judge as well as the reasons given in the impugned judgment and pointed out that while deciding the said issues there is no application of mind on the part of the learned Judge in appreciating the evidence on record and coming to the conclusion that the appellant is not entitled for any reliefs. The learned Counsel further submitted that the learned Judge has not at all properly decided the points in controversy nor has scrutinized the evidence produced by the appellant and, as such, erroneously came to the conclusion that the appellant was not entitled for the injunction as prayed for. The learned Counsel further submitted that irrespective of the claim of mundkarship, the contention of the appellant is that the licences obtained from the statutory Authorities are null and void and deserve to be quashed and set aside for the reasons stated in the plaint, which aspect has not at all been dealt with by the learned Judge while passing the impugned judgment. The learned Counsel has further submitted that the appellant being the mundkar of the suit property is entitled for protection under the law and, as such, the construction put up by the respondents nos.1 & 2 without maintaining a proper set back would encroach into the rights of the appellant over the suit house. The learned Counsel has taken me through the impugned judgment and pointed out that there are no reasons given by the learned Judge in coming to the conclusion that 5 the appellant has failed to establish that the respondents nos.1 & 2 had no right to do the construction of any nature in the suit property and, as such, submitted that the appeal deserves to be allowed and the suit filed by the appellant deserves to be decreed. 6. On the other hand, Shri Ramani appearing for respondent no.2 has supported the impugned judgment. The learned Counsel, as such, submitted that on the basis of the pleadings as pleaded in the plaint there is no averment made therein by the appellant to the effect that he is the mundkar of the suit property. The learned Counsel further submitted that the appellant had filed an application before the learned Mamlatdar for an injunction to restrain the respondents from encroaching in his dwelling house which came to be rejected. The learned Counsel further submitted that the learned Judge has no jurisdiction to decide the alleged dispute raised by the appellant and, in any event, the construction put up by the respondents nos.1 & 2 is after obtaining all the licences in accordance with law and, as such, the contention of the appellant that such licences are null and void is totally far-fetched. The learned Counsel further submitted that the respondents nos.1 & 2 being the owners of the suit property are entitled to enjoy the property in the manner they so desire and, as such, the construction 6 put up by them is in exercise of their proprietary rights to which the appellant has no claim at all. The learned Counsel though admitted that there are no appropriate reasons in the impugned judgment while deciding the issues in controversy, nevertheless, submitted that on perusal of the judgment as a whole, no interference is called for in the impugned judgment. 7. Having heard the learned Counsel and on perusal of the records, the following point for determination arises in the present appeal: POINT FOR DETERMINATION Whether the learned Judge has scrutinized the evidence on record adduced by both the parties while passing the impugned judgment. 8. On perusal of the impugned judgment and the material adduced by the parties, I find that the learned Judge has not at all appreciated the evidence on record adduced by the parties to come to the conclusion that the appellant is not entitled for the reliefs claimed in the suit. On bare reading of the impugned judgment, it appears that the learned Judge has not considered even the issues raised by the respondents in the written statement specially the fact that the Civil Court had no jurisdiction to proceed with the 7 adjudication of the claim of the appellant. Though the learned Judge has broadly considered the principles of law, nevertheless, whether they so apply to the facts and circumstances of the present case on the basis of the material on record, has not at all been considered by the learned Judge while passing the impugned judgment. The learned Trial Judge while deciding the Civil Suit has to scrutinize the documents as well as the oral evidence adduced by the parties and after appreciating and discussing all the evidence on record arrive at the findings on the issues which arise in the suit. In the present case, the learned Judge has not at all dealt with the matter in the manner expected by law. Considering the contention of the respective parties, I find that in the interest of justice, it would be appropriate to direct the learned Judge to decide the said suit afresh after considering the evidence on record adduced by both the parties and after giving them an opportunity of being heard. The respondents nos.1 & 2 would be entitled to produce the copy of the judgment and order passed by the learned Mamlatdar as well as the learned Deputy Collector and other authorities in respect of the proceedings stated to be pending between the parties. The learned Judge would also have to frame an additional issue as to whether the Court had jurisdiction to entertain the dispute raised by the appellant. The learned Judge 8 will as such decide the suit afresh in the light of the observations made herein above. All contentions on merits of both the parties are left open. The point for determination is answered accordingly. 9. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and decree dated 19/08/2005 is quashed and set aside. (iii) The Civil Suit No.251/2004 is restored to the file of the learned District Judge, Panaji. (iv) The learned Judge is directed to decide the suit afresh, after hearing both the parties and after permitting the respondents nos.1 & 2 to produce the aforesaid documents in accordance with law as expeditiously as possible. (v) All the contentions raised by both the parties are left open. (vi) The learned Judge shall decide the suit without being influenced in any manner with any of the observations or the findings given herein above. (vii) The appeal stands disposed of accordingly with no orders as to costs. (viii) The parties are directed to remain present before the learned Judge on 1/07/2011 at 10.00 a.m. F.M. REIS, J. NH/- 9