-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 97 of 2008 1. Mr. Vincent Francis Fernandes (since deceased) through L.Rs. 1(a) Julio Fernandes (son) residing at: F-2, Bonita Apartments, 1st floor, Chidvilas, Taleigao, Ilhas Goa-403 002. 1(b) Ana Francisca Fernandes (wife) residing at: A- 202, Rose Terrace, 2nd floor, Kevni Gauthan, Andheri (W), Mumbai 400 058. 1(c) German Fernandes (son) residing at: A-202, Rose Terrace, 2nd floor, Andheri (W), Mumbai 400 058. 1(d) Maria Fernandes (daughter in law) residing at: A- 202, Rose Terrace, 2nd floor, Kevin Gauthan, Andheri (W), Mumbai 400 058. 1 (e) Agnelo Fernandes (son) residing at : A – 202, Rose Terrace, 2nd floor, Kevni Gauthan, Andheri (W), Mumbai 400 058. 1 (f) Vimi Fernandes (daughter in law) residing at : A-202, Rose Terrace, 2nd floor, Kevni Gauthan, Andheri (W), Mumbai 400 058. 1 (g) Fr. Mathew Fernandes (son) residing at: A-202, Rose Terrace, 2nd floor, Kevni Gauthan, Andheri (W), Mumbai 400 058. -2- V e r s u s 1. Mr. Bento Lucian Fernandes, Businessman, married, r/o house no. not known, Contal, Asvem, Mandrem, Goa. 2. Mrs. Maria A. Fernandes, Wife of Bento A. Fernandes, Housewife, resident of Contal Asvem Mandrem, Goa. 3. Mr. Pedro Joao Benjamin Fernandes Son of late Alexio Fernandes, Widower, retired, resident of Asvem Mandrem, Goa. 4. Alexio Salvador Fernandes, Son of Pedro J.B. Fernandes, Service, married to 5. Rosy Fernandes, Major of age, housewife, both resident of H-81, DDA flats, Naraina, New Delhi 110028. 6. Mr. Luis Roque Fernandes, Son of Pedro J.B. Fernandes, Major of age, Service, married to 7. Mrs. Sandra Fernandes, major of age, service, both resident of 92/A Pockey F Mayur Vihar, Phase II, Delhi 110092. 8. Lawrence Mark Fernandes, Son of Pedro J.B. Fernandes, Major of age service, Unmarried, Resident of H-81, DDA flats, Naraina, New Delhi 110028. ...... Respondents. Mr. V. Menezes, Advocate with Ms. Conception, Advocate for the Appellants. Mr. P. Lotlikar, Advocate for the Respondents. -3- CORAM: F. M. REIS, J. DATE : 6 th August, 2010. ORAL JUDGMENT The above Second Appeal challenges the Judgments passed by the two Courts below whereby the suit filed by the Appellants came to be dismissed. 2. The suit was filed by the Appellants on the ground that there exists an immoveable property described in Land Registration Office of Bardez under no. 4374 of Book B 5 New enrolled in Taluka Revenue Office of Pernem under Matriz no. 1065 of Village of Mandrem. The said property is surveyed in the Record of Rights under no. 261/15 of Mandrem Village,. It is further their contention that in the said property, there exists a mundkarial house of the ancestors of the Appellants which was being occupied by them being House no. 417/B. According to the Appellants, towards the western side of the suit property, there was a structure of the Respondents and the said structure was shown in the Survey Plan by letter 'A'. According to the Appellants, the Respondents were residing in his ancestral house together with his parents and brothers and sisters which is located towards the south of the suit property and that somewhere in the month of November, 1989, the Respondents purchased the said structure with the land surrounding thereto admeasuring an area of 229 square metres which area is located towards the western side of the suit property. It is further their case that in October, 1997, the area of the said structure was 16 square metres approximately and -4- somewhere in the month of October, 1997 the Respondents demolished the said structure and started putting up a bigger construction therein without leaving the requisite set backs. It is further their case that in the first week of November, 1997, the Respondents started constructing towards the suit property without leaving the set backs and that the Appellants had objected to such illegal construction. Without acceding to the objections raised by the Appellants, the Respondents encroached into the suit property and started constructing a wall on the western boundary of the suit property which forced the Appellants to lodge an objection before the local Panchayat. According to the Appellants, the Respondents had constructed one toilet window with one Chajja protruding into the suit property and the balcony which is lying almost on the western boundary of the suit property. It is further their contention that the Respondents were digging some pit holes which were almost touching the western boundary of the suit property. It is further their contention that the Respondents were indulging into such activity without maintaining the proper set backs which forced the Appellants to file the suit praying for a Decree against the Respondents directing them to demolish the encroachment and the construction done in the said property within three metres from the western boundary as well as for a restraint Order from putting up any construction within the said set back area. 3. The Respondents filed their written statements disputing the claim of the Appellants. It is their contention that there was a house in the property purchased by the Respondent and that the Respondent had -5- reconstructed his dwelling house immediately after the purchase of the plot in the month of November, 1989 and not in 1992 as claimed by the Appellants. It is further their case that they have put up the construction within their owner property and they are not indulging into any encroachment into the property of the Appellants. They have also disputed the allegation of the Appellants that they had carried out any illegal construction. The Counter Claim was also filed seeking a mandatory and permanent injunction against the Appellants for removal of the construction from the property of the Respondents and also for a restrain Order from interfering into the property of the Respondents. 4. By Judgment and Decree dated 25.08.2006, the learned Civil Judge, after framing the issues and recording of evidence, dismissed the suit filed by the Appellants while decreeing the Counter Claim, filed by the Respondents. 5. The Appeal preferred by the Appellants being Regular Civil Appeal No. 79/2006, came to be partly allowed and the impugned Judgment and Order passed by the learned Trial Court to the extent of decreeing the Counter Claim filed by the Respondents was quashed and set aside. The suit as well as the Counter Claim came to be dismissed. 6. Shri V. Menezes, the learned Counsel appearing for the Appellants has assailed the Judgments of the Courts below and submitted that though the Appellants did not dispute the findings of the Courts below to the -6- effect that the Respondents had not encroached into the property of the Appellants, nevertheless, the only contention pressed by the learned Counsel was that the Respondents had failed to maintain the necessary set backs whilst putting up the construction in their property. It is further his submission that both the Courts below have not at all considered the said matter and, as such, came to an erroneous conclusion that the suit filed by the Appellants deserves to be dismissed. The learned Counsel has taken me through the impugned Judgment as well as through the notes of evidence of the parties to submit that there was ample evidence on record for the Courts below to come to the conclusion that the Respondent had not maintained the requisite set backs whilst putting up the construction in their property. He further submitted that the findings of the Courts below to the effect that there were no openings towards the property of the Appellants are perverse inasmuch as according to him there was an admission on the part of the Respondent that whist putting up the construction, there were some balconies which have been constructed towards the property of the Appellants. He further submitted that non-consideration of such admission itself vitiates the impugned Judgment and Order and as such there was a substantial question of law which has to be considered by this Court, the present Appeal. 7. On the other hand, the learned Counsel appearing for the Respondent has joined issue with the submission of the learned Counsel appearing for the Appellants. He submitted that there is no reason to interfere with the findings of the Courts below to the effect that the Appellants had failed -7- to establish that they had any right to light and air which had diminished in view of the construction put up by the Respondent. He further submitted that both the Courts below on the basis of the appreciation of evidence on record, came to the conclusion that the Appellants have failed to establish that the Respondent had not maintained the requisite set back whilst putting up the construction. He further submitted that there is no substantial question of law which arises in the present Appeal and, as such, the above Appeal deserves to be dismissed. He further submitted that there was no admission on the part of the Respondents that they had put up any openings towards the property of the Appellants. 8. On hearing the learned Counsel and on perusal of the record, I find that both the Courts below on appreciation of evidence on record came to the conclusion that there is no material on record for the Court to come to the conclusion that there was any infringement on the part of the Respondent to the effect that the construction put up was within the set back area. The learned Counsel appearing for the Appellants was unable to point out any specific admission on the part of the Respondent to the effect that there were openings carried out by Respondents towards the property of the Appellants within the set back area. The learned Counsel wanted this Court to take inferences of such admission on the basis that the Respondents had admitted that they had put up a new construction within a distance of 0.71 metres from the boundary line. I find that such admission itself does not establish that there was an opening towards the property of the Appellants. There is no -8- admission about any opening within the said set back area by the Respondents. The learned Trial Judge whilst deciding issue no.3 has appreciated the evidence on record and on considering the deposition of Pw.1 and the documentary evidence produced by the Appellants, has come to the conclusion that the Appellants had failed to prove that he would be affected by the right of light and air in view of the construction sought to be put up by the Respondents. The learned District Judge whilst disposing of the Appeal had come to the conclusion that the Appellants had failed to prove that his right of air and light has been affected as both the plans annexed to the Rectification Deed as well as the Sale Deed show that adjacent to the property of the Respondent's plot, there is an open land for the Appellants and there is no obstruction of whatsoever nature to the air and light for the Appellants. The learned Counsel appearing for the Appellants was unable to show any specific admission to the effect that a new opening towards the property of the Appellants which would require the maintenance of requisite set back. As such, there is no perversity in the findings arrived at by the Courts below as contended by the learned Counsel appearing for the Appellants. The Apex Court in the Judgment reported in 1999 (7) S.C.C. 303, in the case of Ram Kumar Agarwal & anr. vs. Thawar Das (dead), has held that the jurisdiction of the High Court to interfere with the Lower Court Judgment is confined until a substantial question of law arises otherwise interference with the findings is not warranted. The High Court cannot re-appreciate the evidence in exercise of powers under Section 100 of C.P.C. As such, considering that the findings of the Courts below are on the basis of oral as well as documentary evidence -9- on record adduced by the parties, there is no scope for the High Court to re- appreciate the evidence on record to come to any contrary finding. 9. In view of the Judgment of the Apex Court, I find that there is no substantial question of law which arises in the present Appeal. No interference is called for in the impugned Judgment. This Court cannot re- appreciate the evidence to come to any contrary finding. 10. As such, the present Appeal stands dismissed. F. M. REIS, J. arp/*