-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 127 OF 1999 1. Mr. John Edward Husselbee, son of Mr. Benjamin Obadiah Husselbee, major of age, and his wife, 2. Mrs. Annette Claire Husselbee, daughter of late Mr. Joseph Robert Lindsay, major of age, Both British Nationals, Both residents of Arddol House, Berwyn Street, Llangynog, near Oswestry SY100EX, England, and presently residing at House no. 1/272-B, Gaura Vaddo, Calangute, Bardez, Goa. ...... Appellants V e r s u s 1. Mr. Joaquim Noronha, (since deceased, through LRs) son of Mr. Andrew Noronha, major of age, and his wife, a) Anthony Noronha, major, son of the deceased, b) Mrs. Tanya Noronha, major, daughter in law of the deceased Both residing at C-Wing, Flat No. 304, Greenfiled Towers, St. Anthony Road, Vakola St. Cruz (east), Mumbai – 400 029. c) Mr. Andrew Noronha, major, son of the deceased. -2- d) Mrs. Berymiles Noronha, major, Daughter in law of the deceased. Both residing at Leela Apts., Co-operative Housing Society, 2nd Floor, St. Cruz (E) Mumbai-400 029. e) Mr. Allwyn Noronha, major, son of the deceased. f) Mrs. Sharon Noronha, major, Daughter in law of the deceased. Both reisding at Raichuri House 99-C Kalina, St. Cruz (E) Mumbai 400 029. g) Adrian Noronha, Major, 99-C Kalina, St. Cruz (E) Mumbai 400 029. 2. Mrs. Lira Noronha, daughter of Ludovic Reis, Both residents of 99-C, Kalina, Santa Cruz (E), Mumbai – 400 029. Presently residing at House no. 1/272-A, Gaura Vaddo, Calangute, Bardez, (Goa). 3. Mr. Eugenio Lourenco Cardozo, son of Mr. Caetano Cardozo, major of age, and his wife, 4. Mrs. Sandra Cardozo major of age, hosuewife, Both residing at 6/T-C, Kamat Complex, Tonca, Miramar, Panjim, (Goa). 5. Mr. Francis Malik Fernandes, son of Mr. Hasan Fernandes, major of age, and his wife, -3- 6. Mrs. Zilia Fernandes alias Basilia Maria Goretti Fernandes, major of age, housewife, both residing at "Casa Zilia", Oulalim Oulaulim, Pomburpa, Bardez, Goa. ...... Respondents Mr. P. Lotlikar, Advocate for the Appellants. Mr. Shivan Dessai, Advocate for Respondent nos. 1 and 2. Mr. J. P. Mulgaonkar, Advocate for Respondent nos. 3 and 4. Respondent nos. 5 and 6 absent, though served. CORAM: A. P. LAVANDE, J. DATE OF RESERVING :12 th November, 2008. DATE OF PRONOUNCING: 15 th November, 2008 . JUDGMENT By this appeal, the appellants take exception to Judgment and Decree dated 30.09.1999 passed by IInd Addl. Civil Judge Senior Division, Mapusa, in Special Civil Suit no. 145/95/A/IISR, decreeing the suit. 2. The appellants are original defendant nos. 5 and 6, respondent nos. 1 and 2 are the original plaintiffs, respondent nos. 3 and 4 are original defendant nos. 1 and 2 and respondent nos. 5 and 6 are original defendant nos. 3 and 4 in the suit. 3. The parties shall hereinafter be referred to as per the status in the trial -4- Court. 4. Briefly, the facts leading to the filing of the present appeal are as under : The property, known as "Arvana" situated at Gauravaddo, Calangute, surveyed under no. 131/4, admeasuring 1475 square metres (the suit property), was gifted to plaintiff no.1 by his mother. In the year 1986, plaintiffs wanted to re- construct the residential house in the suit property but he was short of funds and, as such, defendant no.1 offered to make part payment to the Contractor engaged by the plaintiffs and, in consideration thereof, plaintiffs agreed to allow him to construct the first floor on the said house and, accordingly, an Agreement dated 09.11.86 was executed between the plaintiffs and defendant no.1 and the Contractor. As per the said Agreement, construction was carried out and by Deed of Sale dated 19.08.1987 executed between plaintiffs and defendant no.1, plaintiffs sold first floor structure and half of the undivided right in the land underneath the said house admeasuring 90 square metres. The defendant nos. 1 and 2 executed Sale Deed dated 27.05.1988 in favour of defendant nos. 3 and 4 in respect of the first floor and also the undivided right to the extent of half share in the entire suit property and the staircase and the terrace which were never sold to defendant no.1 by Sale Deed dated 19.08.1987. By another Sale Deed dated 27.11.95, defendant nos. 3 and 4 sold to defendant nos. 5 and 6, what was sold to them by defendant nos. 1 and 2. In November 1995, plaintiff no.1 visited the suit property and noticed the illegal construction that had been raised on the cement slab of first floor consisting of masonry work, toilet block and metal sheet having metal angles, which according to the plaintiffs, was totally illegal. Thereafter, the plaintiffs tried to settle the matter -5- but the same did not materialise. Thereafter, a suit was filed for declaration and permanent injunction. The defendants filed Written Statement denying the claim made by the plaintiff. 5. On the basis of the pleadings, following issues were framed : 1. Whether the plaintiffs prove the Sale Deed dated 27.05.1988 is null and void ? 2. Whether plaintiff proves that he is enttiled for declaration that defendants nos. 3 and 4 has no right interest and title in respect of terrace and construction done on it by defendant nos. 3 and 4 is illegal ? 3. Whether plaintiffs prove that he is enttiled for permanent injunction restraining defendants from doing any construction on the slab or the terrace ? 6. The plaintiff no.1 examined himself as Pw.1 and his son as Pw.2. On behalf of the defendants, only defendant no.5 stepped in the box. The trial Court upon appreciation of the evidence, oral and documentary, led by the parties, answered all the issues in the affirmative and, consequently, decreed the suit. The trial Court declared Sale Deeds dated 27.05.1988 and 27.11.1995 null and void to the extent of the sale in excess of the entire first floor and half share in the land underneath the building admeasuring 90 square metres as well as right to well and the staircase leading to the first floor and the way to the staircase. The trial Court declared that the defendants did not have any right to the staircase leading from first floor to the terrace and the structure on the terrace or to carry out any -6- construction on the terrace or the first floor. The defendants have been restrained by way of permanent injunction from doing any construction on the slab of the terrace of the first floor and the Sub-Registrar of Bardez has been directed to take note of the Order and not to register any transfer in excess of the above mentioned property. Aggrieved by the decree, the defendant nos. 5 and 6 have filed the present appeal. 7. Mr. P. Lotlikar, learned Counsel appearing for the appellants made only one submission. Learned Counsel submitted that the finding recorded by the trial Court that the construction undertaken by defendant nos. 3 and 4 is illegal is patently contrary to the evidence on record. He, therefore, submitted that the impugned decree is liable to be set aside. 8. Per contra, Mr. Shivan Dessai, learned Counsel appearing for Respondent nos. 1(a) to 1(g), (the legal representatives of the original plaintiff no.1), and respondent no.2 supported the impugned decree and submitted that no fault can be found with the finding given by the trial Court that the construction undertaken by the original defendant nos. 3 and 4 on the terrace of the first floor is illegal. Learned Counsel submitted that by Sale Deed dated 19.08.1987, what was sold to defendant no.1, was only first floor structure along with half share in the undivided right in the land underneath the residential house and also right to the well situated in the property and further the staircase leading to the first floor and the way leading to the staircase. According to the learned Counsel, except the aforesaid rights, no other right was conveyed in favour of the defendant nos. 1 and -7- 2 and, as such, defendant nos. 1 and 2 could not have transfered any right higher than what they had acquired to defendant nos. 3 and 4 and, consequently, defendant nos. 3 and 4 could not have transferred higher rights than what they could acquire. He further submitted that in the absence of any counter claim by defendants, that the construction undertaken by the defendants on the staircase was legal, the findings recorded by the Trial Court that the construction undertaken by defendant nos. 3 and 4 on the terrace was illegal cannot be said to be illegal. He, therefore, submitted that no interference is called for with the impugned decree. 9. Having regard to the rival submissions, the following point arises for consideration in the present appeal : Whether the finding of the Trial Court that construction done by defendant nos. 3 and 4 was illegal, is contrary to evidence on record and illegal ? 10. I have considered the submissions made by learned Counsel for the parties and perused the record. 11. Perusal of the evidence led by the parties discloses that by sale deed dated 27.05.1988, plaintiffs transfered in favour of defendant no.1 the first floor, structure and half share in the land underneath the house and the right to the well and to the way leading to the staircase in the said building and the staircase leading to the first floor. No other right was transferred by the said sale deed in favour of defendant no.1. This being the position, the defendant nos. 1 and 2 could not have -8- transferred in favour of defendant nos. 3 and 4 higher rights than what they had acquired by sale deed dated 27.05.1988 and, consequently, defendant nos. 3 and 4 could not have transferred any higher rights than what they had acquired by sale deed dated 27.05.1988 in favour of defendant nos. 5 and 6 by Sale Deed dated 27.11.1995. This being the legal position and in view of the cogent evidence about the cosntruction undertaken by defendant nos. 3 and 4 on the terrace of the first floor, the Trial Court was justified in holding that the construction undertaken by defendant nos. 3 and 4 was patently illegal and without any right. I, therefore, find no merit in the submission of Mr. Lotlikar that the impugned Decree to the extent it declares the construction on the terrace is illegal, is liable to be set aside. 12. In view of the above, I find no merit in the present appeal, consequently the same, stands dismissed. Considering the facts and circumstances of the case, there shall be no Orders as to costs. A. P. LAVANDE, J. arp/*