:1: IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NOS. 305 AND 320 OF 2006 FIRST APPEAL NO. 305 OF 2006 1. Mrs. Rosada Matilda Crasto, House No.2, Aquem Baixo, Margao, Salcete Goa. 2. Mrs. Dumelina Antao, 3. Mrs. Yolar Dias Appellant Nos. 2 and 3 being the legal representatives of the deceased Joaquina Fernandes, residents of House No.3 Aquem Baixo, Margao, Salcete Goa. … Appellants V e r s u s 1. Smt. Martha Furtado, r/o H.No.4, Aquem Baixo, Margao Goa. 2. Smt. Elvira Furtado, r/o H.No.4, Aquem Baixo, Margao Goa 3. State of Goa, by its Chief Secretary, Sachivalaya, Panaji Goa. 4. The Collector of South Goa, Office of the Collectorate of South Goa, Margao Goa. 5. The Director of Land Survey Directorate of Land Survey Panaji Goa. :2: 6. Executive Engineer, Works Div. VI, Public Works Department, Fatorda, Margao Goa. … Respondents Mr. Agnelo F. Diniz, Advocate for the appellants. Mr. N. Sardessai, Advocate for respondent nos. 1 and 2. Mr. S. Vahidulla, Government Advocate for respondent nos. 3, 4, 5 and 6. AND FIRST APPEAL NO. 320 OF 2006 1. State of Goa, Through its Chief Secretary, Sachivalaya, Panaji. 2. The Collector of South Goa, Office of the Collectorate of South Goa, Margao Goa. 3. The Director of Land Survey, Directorate of Land Survey, Panaji Goa. 4. The Executive Engineer, Works Division VI, Public Works Department, Fatorda, Margao Goa. … Appellants V e r s u s 1. Smt. Martha Furtado, Major of age, d/o Francis Furtado, Occu. Household r/o H.No.4, Aquem Baixo, Margao Goa. :3: 2. Elvira Furtado, Major of age, d/o Francis Furtado, r/o H.No.4, Aquem, Baixo, Margao Goa. … Respondents Mr. S. Vahidulla, Government Advocate for the appellants. Mr. N. Sardessai, Advocate for respondent nos. 1 and 2. CORAM : F. M. REIS, J DATE: 29 th NOVEMBER, 2011 . ORAL JUDGMENT Both the above appeals are taken up together for final hearing as both challenge the same impugned judgment and decree dated 17.08.2006 passed by the Court of Ad-hoc Additional District Judge, FTC-I, South Goa, Margao, in Civil Suit No. 189/2004. 2. The appellants in First Appeal No. 305 of 2006 are the parties who have been granted leave to challenge the said impugned judgment and decree on the ground that the said appellants have a claim to the suit property. The respondent nos. 1 and 2 are the original plaintiffs to the suit while the respondent nos.3 to 6 are defendant nos. 1 to 4 in the suit. :4: 3. In First Appeal No. 320 of 2006 the said respondent nos. 3, 4, 5 and 6 are the appellants whereas the respondent nos. 1 and 2 are the original plaintiffs. 4. At the hearing of the above appeal, Shri A. F. Diniz, learned Counsel appearing for the appellants has pointed out that in the suit filed by the plaintiffs against the defendants, though the appellants have an interest in the suit property nevertheless a decree has been passed which would affect the rights of the appellants herein. The learned Counsel in support of his contention to the effect that they have interest in the suit property has relied upon the documents referred to at para 3 of the application filed by the appellants under Order 41 Rule 27 of the Civil Procedure Code. The learned Counsel has taken me through the said documents and pointed out that the documents are in respect of the suit property and material to adjudicate the dispute. The learned Counsel as such submitted that as the rights of the appellants would be affected by the impugned judgment and decree the same stands vitiated in view of the fact that the appellants were not the parties therein though such decree would affect the rights of the appellants. The learned Counsel as such submitted that the impugned judgment deserves to be :5: quashed and set aside and the appellants be impleaded as party defendants and the suit be ordered to be decided after hearing also the appellants in accordance with law. 5. On the other hand, Shri N. Sardessai, learned Counsel appearing for the original plaintiffs has disputed the contention of the learned Counsel appearing for the appellants. Shri Sardessai, has pointed out that the appellants have no right or interest over the suit property and as such their presence in the suit is not necessary. The learned Counsel further pointed that though the documents sought to be relied upon by the appellants are in respect of the suit property nevertheless the documents are irrelevant for the purpose of deciding the matter in controversy as according to the learned Counsel the appellants have no right or interest of any nature in the suit property. The learned Counsel further pointed out that in case the matter stands remanded an opportunity should be given to the original plaintiffs to dispute the contention of the appellants and establish the irrelevancy of the documents sought to be relied upon by the appellants. The learned Counsel has further pointed out that the appeal preferred by the appellants be dismissed. :6: 6. On the other hand, Shri S. Vahidulla, learned Government Advocate for the original defendants has pointed out that the defendants have preferred an appeal as according to them the decree passed by the learned Judge is unsustainable in law. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Judge has erroneously appreciated the evidence on record and has come to the erroneous conclusion that the suit is liable to be decreed. The learned Counsel as such submitted that the appeal filed by the defendants deserves to be allowed. 7. On perusal of the impugned judgment, the learned Judge has partly decreed the suit in terms of prayers (b) (1) and (c) of the suit. As such, the defendants have been inter- alia directed by a mandatory injunction to remove the construction of a new road in an area of 148 square metres over the property of the plaintiffs and restore the area to its pre-existing condition. By further relief, a declaration has been granted in favour of the plaintiffs that the depiction of Chalta No.21 of P.T. Sheet No.302 of City survey office, Margao and its entry in the survey record as Government land is a fraudulent entry and consequent cancellation of the entry :7: therein. On perusal of the documents sought to be relied upon by the appellants, prima facie it appears that the said documents are in respect of the portion of the suit property and it is alleged by the appellants that the said road was a public road and according to the appellants the plaintiffs have no right therein. Without going into the correctness or otherwise of the contention of the appellants, I find that as the appellants are necessary parties to the suit filed by the plaintiffs, it would be appropriate that the matter in controversy be adjudicated by the learned Judge afresh after impleading the appellants as party defendants. Considering the view taken by me in the appeal preferred by the appellants, I find that the contention of the learned Government Advocate in the appeal preferred by the defendants is a matter which can be decided afresh by the learned Judge after hearing all the parties in accordance with law. 8. Considering the facts and circumstance of the case, I find that it would be appropriate that the impugned judgment and decree passed by the additional District Judge, South Goa, Margao, be quashed and set aside and the civil suit filed by the plaintiffs be restored to the file of the learned :8: Additional District Judge, South Goa,Margao and the learned Judge be directed to decide the suit afresh after impleading the appellants herein as defendant nos. 5, 6 and 7. No doubt, the defendants would be entitled to file their written statement and take part in further proceedings in accordance with law. At this stage, Shri Sardessai, learned Counsel appearing for the respondent nos. 1 and 2/original plaintiffs pointed out that the plaintiffs may be required to file an application for amendment of the plaint considering the changed circumstances. In case any such application is filed, the same shall be dealt with by the learned Judge after hearing all the parties in accordance with law. 9. In view of the above, I pass the following : O R D E R (i) Both the appeals are partly allowed. (ii) The impugned judgment and decree dated 17.08.2006 is quashed and set aside. (iii) The Civil Suit No. 189/2004 is restored to the file of the learned Additional District Judge, FTC – 1, South Goa, Margao. (iv) The learned Judge is directed to decide the suit afresh after impleading the appellants as :9: defendant nos. 5, 6 and 7 in the light of the observation made herein above in accordance with law. (v) Both the appeals stand disposed of accordingly with no order as to costs. (vi) The parties are directed to appear before the learned Judge on 16th January, 2012 at 10.00 a.m. F. M. REIS, J at*