1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 145 OF 2005 1. Shri Shankar Laximan Kanolkar, 2. Shri Shivanand Laximan Kanolkar Both major, residents of House No. 93, Nanoda, Latambarcem, Bicholim, Goa. … Appellants V e r s u s 1. Shri Prabhakar Naguesh Azgaonkar, 2. Shri Ashok Raghunath Narvekar, Both major, residents of Kanolkarwada, Nanoda, Latambarcem, Bicholim-Goa. 3. The Sarpanch, Village Panchayat of Latambarcem, Kansarpal, Bicholim-Goa. 4. The Mamlatdar of Bicholim Taluka, Bicholim, Goa. 5. State of Goa, Through its Chief Secretary, With office at Secretariat, Panaji-Goa. … Respondents. Mr. S.D. Lotlikar, Senior Advocate with Mr. K.B. Surjuse, Advocate for the Appellants. Mr. A. Naik, Advocate for Respondent No.3. Ms. Preetam Gaude holding for Mr. G. Shirodkar, Government Advocate for Respondents Nos.4 & 5. CORAM : F.M. REIS, J. DATE : 4th FEBRUARY, 2011 2 JUDGMENT : The above appeal challenges the judgment and decree dated 5/01/2005 passed by the learned Additional District Judge, Mapusa in Civil Suit No.37/2004. 2. The parties shall be referred to in the manner they so appear in the cause title of the impugned judgment. 3. The plaintiffs filed the suit on the ground that there is a property known as Condulvao alias Condule vare kadil shir also knwon as Canulvadeadi surveyd under no.510/13 of village Latambarcem of Bicholim Taluka, wherein the ancestral house of the plaintiffs bearing no.14 and 15 is located. It is further their case that the ancestral dwelling house is situated in the said property since last more than 100 years and since then they have been enjoying the said property exclusively and that by virtue of the sale deed executed and registered on 22/11/1980, the plaintiff no.1 purchased the said property from its original owner and since then they possessed and enjoyed the said property. It is further their case that the suit property is bounded towards the east by survey no.510/2, on the west by way, on the north by compound 3 wall between survey no.510/12 and towards the south by foot way as shown in the survey plan. It is further their case that the foot way existing towards the southern side of the suit property is a 'palan' kept for the use of the plaintiffs. It is further their case that the defendants nos.1 & 2, who are against the plaintiffs for reasons known to them instigated some persons and caused them to file a complaint against the plaintiffs before the defendants nos.3 & 4 alleging that the plaintiffs by encroachment caused blockage to the public road belonging to the defendant no.3 and situated towards the southern side of the suit property. It is further their case that there is no public road or panchayat road existing on the southern side of the suit property. It is further their case that show cause notice was issued to them and the plaintiffs explained the correct possession in their reply to the show cause notice. It is further their case that the defendants nos.1,2 & 3 are conspiring to demolish the fencing around the plantation of the plaintiffs and they have strong apprehension that they shall carry out the said demolition of the said fencing at any moment. They accordingly filed the suit praying inter alia for a declaration that it be declared that the plaintiffs are in possession and enjoyment of the property inside the live wooden fencing as the owners. 4 4. The defendants nos.1 & 2 filed their written statement and disputed the claim of the plaintiffs. It is their case that the plaintiffs by virtue of the sale deed dated 22/11/1980 have purchased the property surveyed under no.510/13 property to the extent of only 75 square metres. It is further stated that the sale deed registered in Land Acquisition Office can not be looked into as the contents mentioned therein are vague. It is further their case that they have not purchased the suit road adjoining the property. It is further their case that the live wooden fencing earlier existed in the property bearing survey no.510/13 on the boundary just next to 3 metres wide road, but however in the rainy season in the month of July, August, 2000, the plaintiffs planted the present live fencing about 2 metres further than the old fencing. It is further their claim that 3 metres wide public road is distinct and separated from the property survey no.510/13, 510/14 and 510/15 of village Latambarcem. They accordingly prayed that the suit be dismissed. A counter claim was also filed by defendant no.2. claiming that on the south and the south western side of the suit property survey no.510/13 there exists an unmetalled road approximately 3 metres wide and that said road leads to Kanolkarwada at Latambarcem from the main road of Assonora Dodamarg highway. It is further their case that the said road is flanked on the north and south side 5 by the property bearing survey nos.510, 511, 512, respectively of village Latambarcem. It is further their case that during the rainy season of July, August, 2000, the plaintiffs obstructed the suit road of encroaching upon it to the extent of 2 metres touching the suit property bearing survey no.510/13. They accordingly prayed in their counter claim for a permanent injunction restraining the plaintiffs from interfering and obstructing the suit road and also for a direction by way of mandatory injunction from removing the fencing and the construction from the suit road. Declaration was also sought that the suit road was 3 metres wide public road and not a mere pathway. 5. After framing of issues and recording of evidence, the learned Judge by judgment and decree dated 5/01/2005 dismissed the suit filed by the plaintiffs and decreed the counter claim. It was declared that the suit road is 3 metres wide and that it is a public road. It was further declared that defendants have a right of way to the suit road. The plaintiffs were directed to remove the fencing and construction put up by them on the suit road. The plaintiffs were also restrained from obstructing the suit way or from doing any construction on it. Being aggrieved by the said judgment, the plaintiffs have filed the present appeal. 6 6. Shri S.D. Lotlikar, the learned Senior Counsel appearing for the appellants has assailed the impugned judgment and pointed out that the learned Judge has erred in coming to the conclusion that the road is existing on the southern side of the suit property. The learned Senior Counsel further submitted that the plaintiffs have not caused any obstruction to the 3 metres wide access towards the southern side. Learned Senior Counsel further submitted that there is an open access having a width of 3 metres which is available for the defendants and, as such, the question of granting any mandatory injunction and directing the removal of fencing and construction would not arise. Learned Senior Counsel further submitted that the learned Judge has mis-appreciated the evidence on record and has come to an erroneous conclusion that the suit filed by the plaintiffs deserves to be dismissed. Learned Senior Counsel further submitted that there is no evidence on record to substantiate the contentions of the defendants in their counter claim that any encroachment was done by the plaintiffs in the suit road. He accordingly prayed that the impugned judgment deserves to be quashed and set aside. 7. On the other hand, Mr. A. Naik, learned Counsel appearing 7 for the defendant no.3 has supported the impugned judgment. He pointed out that they have a right of access having a width of 3 metres on the southern side of the property of the plaintiffs which cannot be obstructed. Learned Counsel appearing for defendant no.3 took me through the evidence on record and pointed out that there is no infirmity committed by the learned Judge while passing the impugned judgment. Learned Counsel appearing for defendant no.3 further submitted that in case any fencing and/or construction is put up, which would reduce the access by 3 metres, the same would have to be removed by the plaintiffs on the basis of the impugned judgment. The learned Counsel further submitted that the directions which have been given for the removal of the fence and/or construction is to ensure that there is unobstructed access having a width of 3 metres and in any event the defendants are not at all interested in removing any construction of the plaintiffs if the width of the said road is 3 metres. He, accordingly, submitted that the appeal deserves to be dismissed. 8. After hearing the learned Counsel and on perusal of the records, I find that the learned Judge while passing the impugned judgment has come to the conclusion that the suit pathway having width of 3 metres is located beyond the property belonging to the 8 plaintiffs, on the basis of the sale deed executed in the year 1980. The learned Judge was also justified to come to the conclusion that the respondent no.3/defendant no.3 has a right of way over the suit road having the width of 3 metres. The learned Judge on the basis of the survey records has also rightly come to the conclusion that the suit pathway is having a width of 3 metres. The findings of the learned Judge are on the basis of the material on record and the learned Senior Counsel for the appellant was unable to point out any infirmity committed by the learned Judge. The evidence on record has been correctly construed by the learned Judge and I find no infirmity committed by the learned Judge in coming to such conclusion. 9. While passing the impugned judgment, the learned Judge has directed that any construction put up on the said pathway is to be removed by the plaintiffs. Once the width of the said pathway is accepted to be 3 metres, no doubt any construction put up by the plaintiffs which would reduce the said width would have to be removed. Shri Lotlikar, learned Senior Counsel has submitted that no construction has been put up by the plaintiffs in the suit road having a width of 3 metres and that the plaintiffs have no claim over the said road having a width of 3 metres, nor have the 9 plaintiffs reduced the said width of 3 metres. 10. On the other hand, considering the submissions of Mr. A. Naik, learned Counsel appearing for defendant no.3, who fairly conceded that the only interest of the defendants was that they should get an unobstructed access having a width of 3 metres, which is located towards the southern side of the property of the plaintiffs. He further submitted that the defendants are not interested in removing any construction in case there is no obstruction to the width of the said access to the extent of 3 metres. As such, I find that the clarification can always be given to the effect that the removal of the construction by the plaintiffs would be restricted to only in case such construction is located in the portion of the said road/access which reduces its width by less than 3 metres. Subject to the said clarification, no interference is called for in the above appeal. 11. In view of the above, I pass the following order: O R D E R Subject to above clarification, the appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-