1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 474 OF 2009 1. Alexinho Noronha, Major of age, 2. Remedios Noronha Major of age, Both r/o. H. No.1E-301, Opposite Models Residency St. Inez, Panaji-Goa. .. Petitioners Versus 1. Allan Vales, R/o A-1, Seashell Building, Behind Kamat Hospital, Miamar, Panaji-goa. 2. Caetaninho Noronha, R/o H.No.1E-301, Opposite Models Residency St. Inez, Panaji-Goa. .. Respondents. Mr. A. D. Bhobe, Advocate for the petitioners. Mr. V. Menezes, Advocate for the respondents. CORAM :- U. D. SALVI, J. DATE OF RESERVING THE JUDGMENT : 18 th September,2009. DATE OF PRONOUNCING THE JUDGMENT : 25 th September,2009. JUDGMENT : 2 1. Heard. Rule made returnable forthwith. Taken up for final hearing with consent of the parties. 2. The petitioners have invoked Article 226 and 227 of the Constitution for seeking writ of certiorari for evaluating legality and propriety of the order dated 30.06.2009 passed by the Civil Judge, S. D., Panaji in Execution Application No.38/2003/B and consequent quashing of the said order. 3. Learned Civil Judge, S. D., Panaji disposed of the objections raised by the J.Ds./Petitioners – J.D. No.2 Alexinho Noronha and J.D. No.3 Remedios Noronha on 19.08.2008 Annexure C collectively to the petition to the execution of the decree of the demolition of the suit structure passed in Regular Civil Suit No.120/1998/B; and further disposed of the application for intervention/ objections to the said execution proceedings filed by the intervenors Maria Santana Noronha widow of J.D./ defendant No.1.Caetaninho Noronha in the said suit and Nelson Noronha, son of late Remedios Francisco Antonio Noronha original tenant in respect of the suit house. 3 4. A copy of the objection to the execution at Annexure C collectively to the petition substantially reveals the case of the petitioners. According to the petitioners, the suit house was originally rented to Shri Remedios Francisco Antonio Noronha by the Landlady Lydia Vales for rent of Rs.80/- per month; and the said Remedios Noronha had three sons namely J.D. No.1 Caetaninho, J.D.No.2 Alexinho, Nelson; and J. D.No.3. Remedios was the son of J.D. No.1 Caetaninho. The suit structure, the subject matter of demolition under the execution of the said decree, the petitioners state, was initially a small structure used as a store and somewhere in the year 1997 with the consent of the D.H./ plaintiff and his brother Ryan Valles, had been repaired and occupied by the J.D.No.3 Remedios with family including his aged mother – Maria; and some 12 years back i.e. somewhere in the year 1998, the J.Ds. were compelled to pay Rs.300/- to the Landlord i.e. the D.H. and his brother Ryan Valles towards the occupation of the suit structure upon a threat of institution of a civil suit for the demolition of the suit structure. The judgment debtors/ petitioners further pleaded in their objection that they did question the decree holders' brother Ryan Valles upon receipt of summonses in Regular Civil Suit No.120/1998/B as to why the suit was filed 4 for demolition of the suit structure when the D.H. and his brother were receiving the rent therefor and in response to this query, the brother of the D.H. expressed ignorance about the institution of the suit and informed them that he would be giving instructions to the D.H. to withdraw the said suit, if any filed, and later on had informed the Judgment Debtors that the suit has already been withdrawn. According to the Judgment Debtors, they were shocked to receive the notice issued in the Execution Proceedings and again this time the brother of the Decree Holder had expressed ignorance about the launching of the execution proceedings and assured them of the withdrawal of the execution proceedings; and yet they later on learnt in the year 2005 that the Decree Holder instead of withdrawing the execution proceedings had made application for appointing the Commissioner to identify and demolish the suit structure. It appears from the objection raised by the Judgment Debtors that they hoped for settlement of the dispute in respect of the said suit structure and they were assured by the brother of the Decree Holder Mr. Ryan Valles of the withdrawal of the said execution proceedings for the reason of receipt of rent in respect of the suit structure by the Decree Holders and himself. Thus, the J.D./ petitioners claimed to be the tenants of the suit 5 structures against which the decree of demolition was passed and the warrant was issued for its demolition as a consequence thereof. 5. Intervenors Maria and Nelson Noronha more or less spoke in the tongue of the J.D. but at the end claimed that they are the tenants of the suit structures and demolition of the suit structure would cause great harm and irreparable loss to them as the suit structure is their only house. However, at present they have not challenged the impugned order and, therefore, no controversy as regards their intervention survives any more. 6. Learned Advocate Bhobe for the petitioners / Judgment Debtors submitted that the report of the Court Commissioner at Annexure E to the petition clearly indicates that the structure alleged to be the suit structure- subject matter of demolition was not the structure which was directed to be removed by the Judgment and decree dated 6.5.2000 passed in Regular Civil Suit No.120/1998/B and, therefore, the impugned decree has become unexecutable. The learned Bhobe for the petitioners/ J.Ds. pointed out from the judgment dated 6.5.2000 in Regular Civil Suit 6 No.120/1998/B passed by the Additional Civil Judge, S. D., Panaji- Annexure A to the petition that the suit structure admeasuring 3 metres x 4 metres comprised of cement plinth, galvanised iron sheets and corrugated tin roof and window frame on one side, and whereas the Court Commissioner had found the structure admeasuring 3.70 metres x 4.15 metres vide report dated 2.8.2005 at Annexure E collectively. No other ground was urged by the learned Advocate Bhobe for the petitioners / J.Ds. in support of this petition. 7. In response to these submissions made on behalf of the petitioners/ J.Ds. the learned Advocate Valmiki Menezres for the respondent No.1 Allan Valles, submitted that in clear terms, the Court Commissioner, pursuant to the directions of the Executing Court to ascertain the existence of the suit structure at the site, had identified the suit structure with reference to the sketch annexed to the plaint in the Regular Civil Suit No.120/1998/B as a structure lying in the open space of the plot bearing chalta No.42 of P.T. Sheet No.82 and had clearly indicated the existence of the suit structure at the said plot in the sketch annexed to the said report. From the visual comparison of the sketch 7 annexed to the plaint and the sketch annexed to the Court Commissioner's report dated 2.8.2005, he submitted, there would be no two opinions about the identification of the suit structure by the Court Commissioner. He pointed out from the text of the impugned order that the petitioners/ judgment debtors had remained absent in the proceedings before the Executing Court, when the Court Commissioner was summoned for cross-examination, and as a consequence thereof, the Executing Court had closed the cross- examination of the Court Commissioner and proceeded to issue a warrant of demolition. He further pointed out that the objections contrary to the submissions now being made about the identity of the suit structure were raised by means of the applications at Annexure B, Annexure C to the petition. He, therefore, urged the rejection of the present writ petition. 8. A certified copy of the plaint in Regular Civil Suit No.120/1998/B instituted in the Court of Civil Judge, S.D., panaji, has been placed on record by the petitioners/ judgment debtors for the purposes of appreciation of the facts in the present writ petition. It shows that the plaintiff/ D.H. Allan Valles had instituted the said suit, firstly, for 8 permanent injunction restraining the defendants therein from interfering with the suit structure in any manner whatsoever and, secondly, for mandatory injunction directing the defendants to demolish the suit structure and to restore the suit property to its original condition. The plaintiff/ D.H. therein claimed to be the owner in possession of the landed property bearing chalta No.42 to 47 of P.T. Sheet No.82 with a suit structure made of several smaller tenements standing thereon. The plaintiff/ D.H. further pleaded that the defendants therein were the tenants in respect of the tenement bearing No.38/1995 in the house No.E- 501delineated in green on the plan annexed to the plaint and referred to as the suit house. Thus, the plaintiff/ D.H. in clear terms had identified the property let out to the defendants. 9. It appears from the plaint in the said suit that it was the grievance of the plaintiff / D.H. regarding illegal construction of the suit structure delineated in red on the plan annexed to the plaint undertaken by the defendant No.1 Caetanino and defendant No.2 Allexinho in the open space delineated in blue on the said plan. It was also the grievance of the plaintiff/ D.H. that despite their plea to stop the said 9 illegal construction, the defendants forcibly continued with the said construction and had erected the structure admeasuring 3 metres x 4 metres as described in the plaint. Significantly, apprehensions regarding further forcible enlargement of the suit structure at the hands of the defendants were also voiced in the plaint. Pertinently, the defendants/ petitioners did have knowledge of the institution of the said suit and yet they without any palpably valid reason allowed the decree of demolition of the suit structure to be passed in the said suit. The subject matter of the demolition under the said decree is thus found clearly identified and located in the open place shown in the plan annexed to the plaint. 10. The report of the Court Commissioner at Annexure E to the petitioner reveals that the Court Commissioner had identified the suit structure with reference to the suit structure as shown in the sketch/ plan annexed to the plaint in the suit and had indicated the existence of the suit structure at the site of demolition in the location sketch annexed to its report. The suit structure is shown standing in the open place on the eastern side of the suit house in the sketch annexed to the report Annexure E 10 and its situation tallies with the situation shown in the plan annexed to the plaint in the said suit. The plaint describes the open space as the space lying on the east of the suit house. Existence of a suit structure has been acknowledged by the J.Ds. in their objections at Annexure C to the petition. Variance in the measurement of the suit structure as found in the plaint and the report of the Court Commissioner in the background of the aforesaid facts and circumstances can be looked upon as variance occasioned due to the mis- description of the suit structure, which was in state of flux at the time of institution of the suit. The identification of the suit structure by the Court Commissioner particularly with reference to the plan annexed to the plaint, therefore, cannot be faulted. The petitioners/ judgment debtors, therefore knowingly chose not to cross-examine the Court Commissioner, which they could have with particular reference to the measurements of the suit structure and its location in the plans annexed to the plaint as well as sketch annexed to his report dated 2.8.2005 for the purposes of demolition of his claim of identifying the suit structure at the site. 11. No interference is, therefore, called for in the 11 impugned order passed by the learned Civil Judge, S.D., Court B, Panaji. Rule is, therefore, discharged with no order as to costs. U. D. SALVI, J. SMA