… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 41 OF 2010. 1. Mr. George Serverino D'Mello Aged 79 years, widower, Service and resident of House No.181, Pixem Dongri, Behind State Bank of India, Vasco da Gama – Goa 2. Mrs. Adelina D'Mello wife of Mr. George Severino D'Mello (Since deceased) Through Legal Heirs 2(a) Mr. Peter Lourencino D'Mello Son of Mr. George Severino D'Mello, Aged 43 years, service, Resident of House No.181, Pixem Dongri, Behind State Bank of India, Vasco da Gama-Goa; 2(b) Mrs. Ascina Fatima D'Mello, daughter of Mr. George Severino D'Mello, aged 35 years, and resident of Carambolim, Tiswadi Goa; 2(c) Mrs. Valerina Argintina D'Mello Daughter of Mr. George Severino D'Mello,aged 45 years, r/o Utorda, Salcete-Goa; 2(d) Mrs. Anita D'Mello, Daughter of Mr. George Severino D'Mello, Aged 44 years, r/o Ribandar, Tiswadi-Goa .. Appellants. Vs. 1. Dr. Mariano S. J. Godinho, Son of late Jose Roque Godinho, Aged 55 years, married, Medical Practitioner; and his wife … 2 … 2. Mrs. Elizabeth Godinho, Aged about 51 years, housewife, Both residing at House No.72, Calata, Majorda, Salcete-Goa; 3. Mrs. Gracyn D'Mello, Daughter of Mr. George Severino D'Mello, Aged 38 years, r/o Seraulim, Salcete-Goa. .. Respondents Mr. G. Shirodkar, Advocate for the appellants. Mr. A. F. Diniz, Advocate for respondent nos.1 and 2. None for respondent no.3, though served. CORAM :- A. P. LAVANDE, J. DATE : 26 th July, 2011. ORAL ORDER : Heard Mr. Shirodkar, learned Counsel for the appellants and Mr. Diniz, learned Counsel for respondent nos.1 and 2. None appears on behalf of respondent no.3, though served. 2. By this Second Appeal, the appellants take exception to the judgment and decree dated 12th January, 2010 passed by the District Judge-2, South Goa, Margao in Regular Civil Appeal No.90/2009 and Regular Civil Appeal No.112/2009 by which the appeal preferred against the … 3 … judgment and decree dated 31st July, 2009 passed by the Civil Judge, Junior Division, Vasco da Gama in Regular Civil Suit No.41/2000/D by the appellants herein i.e. Regular Civil Appeal No.90/2009 has been dismissed and Regular Civil Appeal No.112/2009 preferred by respondent nos.1 and 2 herein has been allowed. It may be noted that inadvertently, the lower appellate Court in the impugned judgment has mentioned that Regular Civil Appeal No.112/2009 was also filed by the appellants in Regular Civil Appeal No.90/2009. Respondent nos.1 and 2 herein are the original plaintiffs in the suit filed against the appellants and respondent no.3 seeking reliefs of injunction and mesne-profits/ damages. 3. According to the plaintiffs, somewhere in March, 2000, the defendants encroached the property of the plaintiffs to the extent of 32 square metres on the eastern side by constructing two rooms and varandah. The defendants contested the suit and claimed that they are the mundkars in respect of suit house bearing no.181 and the suit shed was constructed with the permission of the father of the plaintiffs. The defendants further claimed that they were occupying the structure continuously and peacefully for a period of over 30 years with express consent of the parents of … 4 … plaintiff no.1. In the suit, initially, issue no.4 was framed which reads thus : “Whether the defendant proves that the defendant is mundkar of the suit house bearing no.181 the alleged suit shed which was constructed with due permission of the late father of the plaintiff admeasuring 65 sq. mts.?” 4. The said issue was deleted pursuant to order dated 31st March, 2008 passed by this Court in Writ Petition No.409/2003. The trial Court, upon appreciation of the evidence led by the parties, held that the plaintiffs had proved the encroachment made by the defendants to the extent of 32 square metres as shown in the plan exhibit C-55 colly and directed the defendants to restore the land to its original condition and further granted permanent injunction in respect of the suit property. The trial Court did not grant mesne-profits/ damages claimed by the plaintiffs. 5. Aggrieved by the judgment and decree passed by the trial Court, the plaintiffs and defendants preferred two appeals before the District Court, South Goa, Margao. Both these appeals were made over to District Judge-2, South Goa, … 5 … Margao who by the impugned judgment and decree dated 12th January, 2010 dismissed the appeal preferred by the defendants and allowed the appeal preferred by the plaintiffs and thereby maintained the decree of the trial Court to the extent of demolition and permanent injunction and also granted mesne-profits/ damages to the plaintiffs at the rate of Rs.465/- per month from 1st April, 2000 till removal of the encroachment. 6. Mr. Shirodkar, learned Counsel for the appellants submitted that in so far as the mesne-profits granted by the lower appellate Court are concerned, there is absolutely no evidence led by the plaintiffs in support of their claim for mesne-profits and in any case, the lower appellate Court could have granted mesne-profits only by directing enquiry after passing the decree for demolition in terms of Order XX, Rule 12 of C.P.C. Mr. Shirodkar further submitted that the appellants have already filed a mundkar case before the Mamlatdar, Vasco da Gama seeking declaration and since the claim of mundkarship is pending before the Mamlatdar, the trial Court ought not to have granted decree of demolition of the alleged encroachment which according to the appellants is a part of the mundkarial house. Mr. Shirodkar further … 6 … submitted that the Civil Court had no jurisdiction to grant decree of demolition of the structure which is a part of the mundkarial house and, therefore, the decrees passed by both the Courts below directing demolition of a structure admeasuring 32 square metres is patently unsustainable in law. Mr. Shirodkar further submitted that the plaintiffs had not identified the alleged illegal construction and on this count also both the decrees cannot be sustained. In support of his submissions, Mr. Shirodkar placed reliance upon the following judgments : (i) Subha Venkatesh Kamat Vs. Vasu Naik and others; 2001 (1) GLT 3. (ii) Antonio Salvador Francisco Joaquim Celemente Mesquita and another Vs. Pedro Carvalho and another; 2000(2) BCR 185. 7. Per contra, Mr. Diniz, learned Counsel appearing for respondent nos.1 and 2 fairly conceded that the lower appellate Court could not have granted mesne-profits and it ought to have directed enquiry to the mesne-profits in terms of Order XX, Rule 12 of C.P.C. However, in so far as the decree for demolition and permanent injunction granted by … 7 … the trial Court and confirmed by the lower appellate Court is concerned, Mr. Diniz submitted that no fault can be found with both the judgments and decrees since the trial Court as well as the lower appellate Court on proper appreciation of the evidence led by the parties, have come to the conclusion that the defendants have encroached to the extent of 32 square metres in the property of the plaintiffs by carrying out illegal construction. Mr. Diniz, therefore, submitted that no case has been made out by the appellants for reversal of the decrees passed by both the Courts in so far as demolition of illegal construction and grant of permanent injunction is concerned. However, he fairly submitted that the matter be remanded to the trial Court for holding enquiry in terms of Order XX, Rule 12 of C.P.C. in so far as the claim of mesne- profits made by the plaintiffs is concerned. 8. None has appeared on behalf of respondent no.3, though served. 9. Having heard the learned Counsel for the parties and having perused the record, I find merit in the submission of Mr. Shirodkar that the lower appellate Court was not justified in granting mesne-profits without directing enquiry … 8 … to the mesne-profits in terms of Order XX, Rule 12 of C.P.C. as rightly conceded by Mr. Diniz, learned Counsel appearing on behalf of respondent nos.1 and 2. Moreover, no specific issue was framed by the trial Court in so far as mesne-profits is concerned. Therefore, in my considered opinion, the impugned judgment and decree passed by the lower appellate Court in Regular Civil Appeal No.112/2009 allowing the appeal preferred by the plaintiffs deserves to be quashed and set aside and the matter remanded to the learned Civil Judge, Junior Division, Vasco da Gama for enquiry to determine the mesne-profits/ damages in terms of Order XX, Rule 12 of C.P.C. 10. In so far the decrees passed by both the Courts below granting reliefs of demolition and permanent injunction are concerned, I do not find any merit in the submission of Mr. Shirodkar. Indisputably, initially, the issue of mundkarship was framed in the suit which was deleted by this Court by judgment and order dated 31st March, 2008 passed in Writ Petition No.409/2003. In view of deletion of issue no.4 relating to mundkarship of the defendants, the entire thrust of the argument made on behalf of the appellants loses force. The Civil Court in the suit filed by the … 9 … owner against a person alleged to have made encroachment by carrying out construction, is entitled to find out whether there is infringement of proprietary rights by the defendants by carrying out illegal construction in the property of the plaintiff. Once this Court deleted the issue of mundkarship in the suit, it is not permissible for the defendants in Second Appeal to contend that since they are mundkars in respect of the alleged illegal construction, no decree could have been passed by the Civil Courts for demolition thereof. In my considered opinion, both the Courts below were justified in holding that the defendants had carried out illegal construction since the same was established by the plaintiffs by leading cogent evidence and, therefore, it cannot be said that the findings recorded by both the Courts below are perverse. Both the Courts below have analysed the evidence led by the parties and have recorded findings which cannot be said to be perverse. 11. The judgments cited by Mr. Shirodkar also do not advance the case of the appellants. In the case of Antonio Mesquita (supra), the learned Single Judge of this Court has held that the mundkar has no right to claim any right in respect of a structure raised … 10 … by him at a distance of 50 metres from his house. The facts in the said case are entirely different and, therefore, they do not advance the case of the appellants. In the case of Subha Kamat (supra), the learned Single Judge of this Court has held that the objections to the execution of the decree on the ground that the judgment debtor is a mundkar can be taken even in execution proceedings. The ratio of the said judgment would not help the appellants inasmuch as in the present case, the issue of mundkarship has been already deleted by the learned Single Judge of this Court and as such, the same was binding on both the Courts below. 12. In view of the above discussion, the decree dated 31st July, 2009 passed by the learned Civil Judge, Junior Division, Vasco da Gama in Regular Civil Suit No.41/2000/D to the extent it grants demolition and permanent injunction and confirmed by the lower appellate Court in Regular Civil Appeal No.90/2009 is confirmed. However, the decree passed by the lower appellate Court in Regular Civil Appeal No.112/2009 granting mesne-profits / damages in favour of the plaintiffs at the rate of Rs.465/- per month from 1st April, 2000 till the date of delivery of possession, is quashed and set … 11 … aside and the trial Court is directed to hold enquiry as to the mesne-profits in terms of Order XX, Rule 12 of C.P.C. and thereafter, pass a decree in accordance with law. 13. Both the parties to appear before the Civil Judge, Junior Division, Vasco da Gama on 15th September, 2011 at 10.00 a.m. 14. Second Appeal No.41/2010 stands disposed of accordingly. No order as to costs. A. P. LAVANDE, J. SMA