1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 105 OF 2005 1. The Assistant Engineer, Works Division IX, Sub-Division III, PWD/PHE, Government of Goa, Borda, Margao, Salcete, Goa. 2. The Executive Engineer, Works Division IX, Government of Goa, PWD/PHE, Fatorda, Margao, Salcete, Goa. 3. The Government of Goa, Secretariat, Panaji, Goa through its Chief Secretary. ... Appellants versus Mrs. Lidia Barbosa, expired, Widow of Alfredo Barboza, aged 85 years, landlady, resident of House No.210, Barboza Mansion, B.P.S. Road, Margao, Salcete-Goa, represented by her Attorney Miss Celina Barboza, since deceased represented by Legal heirs: 1a. Mr. Edgar Jose Narciso Barboza(son) aged 63 years and his wife 1b. Mrs. Glafira Veronica Agatha Fernandes Barboza (daughter-in-law), aged 59 years. 2 1c. Mr. Eric Abilio do Carmo Barboza(son) aged 61 years and his wife. 1d. Mrs. Arlene Lourdes D'Silva Barboza (daughter-in-law), aged 54 years. 1e. Miss Maria Celina Hortencia Barboza (daughter), aged 58 years. 1f. Mr. Roy Oscar Eusebio Barboza(son), aged 51 years and his wife. 1g. Mrs. Maria de Jesus da Piedade Costa Pinto Barboza (daughter-in-law), aged 47 years. All Indian Nationals, residing at Barboza Mansion, Opposite B.P.S. Club, Margao, Goa. ... Respondents Shri G. Shirodkar, Government Advocate for the Appellants. Shri C. A. Coutinho, Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 15TH NOVEMBER, 2010. 3 ORAL JUDGMENT Heard Shri G. Shirodkar, learned Government Advocate on behalf of the appellants and Shri C. A. Coutinho, learned Counsel on behalf of the respondents. 2. This First Appeal is directed against Judgment/Order dated 7-12-2004 of the learned Adhoc Additional District Judge in Special Civil Suit No.113/1999/III, by which the learned District Judge by way of a mandatory injunction has directed the demolition of the toilets constructed by the defendants(appellants herein) in the suit properties except those constructed in the plots sold by the plaintiff, and to restore the suit properties to their original position. 3. There is no dispute that the respondent/plaintiff is a co-owner of two properties, surveyed under Nos.336/1, 336/3 and 309/12 of Manora village. The said two properties are occupied by several persons with their respective houses who till the date of the evidence was given by the plaintiff had not even registered as mundkars. 4 4. The Government had a scheme of constructing Sulabh toilets, and pursuant to an application made by some of the occupants of the houses in the said property, the Government constructed 12 toilets in the first property, and 9 toilets in the second property admeasuring about 1.5 x 1.5 meters each. The Government also constructed some toilets in the plots sold by the plaintiff. According to the plaintiff, she was not concerned with the construction of the toilets sold to the said plot owners. 5. Admittedly, the said construction of the toilets was done without the permission of the plaintiff or other co-owners of the property, and, therefore the plaintiff filed the suit, inter alia, for mandatory injunction directing the defendants(appellants herein) to demolish all the toilets constructed in the said two properties except those constructed in the properties sold as aforesaid and to restore the property to its original condition. 6. At the hearing of this appeal, Shri G. Shirodkar, learned Government Advocate, on behalf of the appellants/defendants has submitted that the defendants had taken a plea of non-joinder of the 5 persons who were occupying the said property and for whose benefit the Sulabh toilets were constructed, and, therefore in the absence of the said persons as party defendants, the suit could not have been decreed. 7. Shri C. A. Coutinho, learned Counsel on behalf of the respondent/plaintiffs submits that the plea of non-joinder was vaguely taken by the defendants even without giving the names of the persons who were occupying the houses in the said two properties of the plaintiffs or for that matter of persons who were registered as mundkars in relation to the said properties, and, therefore the plaintiff was not bound to join any of the persons for whose benefit the toilets were constructed as party defendants in the suit more so because the plaintiff had no cause of action against them, as the construction was done by the defendants. 8. The issue of non-joinder was framed by the trial Court and has been answered in the negative against the defendants. The learned trial Court has observed that although the defendants had pleaded that the suit was bad for non-joinder of necessary parties, as the mundkars, purchasers or beneficiaries of Sulabh toilets situated in the said property, 6 the defendants had not placed on record any documents regarding the same nor had the defendants disclosed who were the mundkars, purchasers or beneficiaries of the toilets built by the defendants. The learned trial Court also observed that the cause of action arose to the plaintiff only against the defendants and under the law, proper and necessary parties would be those who had continuing, direct and subsisting interest in the suit property. In my view, the issue no.2 in relation to non-joinder has been rightly answered by the learned trial Court against the defendants. In case the suit was bad for non-joinder of any persons, or for whose benefit the said toilets were set up by the defendants, the defendants ought to have given their names, and in the absence of such names, the plaintiff could not have been expected to join the said persons who were occupying their property as parties to the suit. Moreover, the cause of action arose in favour of the plaintiff against the defendants, who had constructed the said toilets and it is they who would be liable to demolish the same. Plaintiff had sought relief only against the defendants and only they were the necessary parties to the suit. 9. Shri G. Shirodkar, learned Government Advocate on behalf of the defendants, has next submitted that the learned trial Court was not 7 justified in awarding general damages of Rs.10,000/-. On this aspect, it is seen that the plaintiffs had claimed an amount of Rs.1,00,000/-. The plaintiff had also examined an expert who had assessed the damage at Rs.87,360/-. The learned trial Court has proceeded to award only general damages to the extent of Rs.10,000/-. The defendants had led no evidence at all, not even on the aspect of these damages, and considering the facts of the case, in my view, since the defendants had encroached upon the property of the plaintiff without their permission, the award of general damages to the extent of Rs.10,000/- could not be faulted. However, the interest awarded of 8% can be considered to be on a higher side. Therefore, the same is reduced to 6% in terms of Section 34, C.P.C. 10. Shri Shirodkar, learned Government Advocate submits that eleven toilets constructed by the defendants now fall in the areas purchased by the said occupants as mundkars of the plaintiff. 11. Shri Coutinho, learned Counsel submits that the said purchase will not come in the way of demolition because such a purchase has been specifically saved by the impugned Judgment/Decree. The defendants who constructed the said toilets for the benefit of the 8 occupants of the said property, who according to them, have now purchased their respective portion are bound to place such material before the executing Court in case the defendants are interested in not demolishing the said toilets which have otherwise been saved from demolition by the impugned Judgment and Order of the learned trial Court. 12. The defendants could not have constructed the toilets by encroaching upon the property of the plaintiffs and without their permission. There is no merit in this appeal, and accordingly the same is hereby dismissed. N. A. BRITTO, J. RD