1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.136 OF 2005 Shri Vinayak Raglo Ghadi, Major of age, Indian National, Resident of H.No.326, Ghadiwada, Amona, Bicholim, Goa. Represented by his duly constituted Attorney, Shri Mahadev Vinayak Ghadi, Major of age, Resident of Ghadiwada, Amona, Bicholim, Goa. …. Appellant V/s 1. Smt. Rukmini Ganesh Ghadi, resident of House number not known, Ghadiwada, Amona, Bicholim, Goa. 2. Shri Gurudas Babuli Ghadi, 3. Shri Vassudev Babli Ghadi, Both major of age, residents of House No. not known, Ghadiwada, Amona, Bicholim, Goa. 4. The Assistant Engineer, P.W.D.W.D. XVII, State of Goa, Bicholim, Goa. 5. The State of Goa, through Chief Secretary, Secretariat, Panaji, Goa. …. Respondents Mr. P. Lotlikar, Advocate for the Appellant. Mr. J.F. Melo, Advocate for Respondents Nos.1,2 & 3. Mr. M. Salkar, Additional Government Advocate for Respondents Nos.4 & 5. CORAM : N.A. BRITTO, J. DATE : 22nd SEPTEMBER, 2010 2 JUDGMENT : Heard. 2. This appeal is by the plaintiff in RCS No.41/2000/A (old No.35/2004). By judgment/decree dated 23/09/2004, the plaintiff has been directed to pay to the defendants nos.4 & 5 (Government) a sum of Rs.9,992/-. 3. Some facts are required to be stated to dispose of this appeal. 4. The plaintiff is a mundkar along with defendants nos.1 to 3 in the property surveyed under no. 187/1 of Amona village which belonged to Prabhudessai family. It appears that the Government (defendants nos.4 & 5) had set up two sulabh toilets in the said property with the no objection of the said Prabhudessai family for the benefit of defendants nos.1 to 3. 5. The plaintiff filed the said civil suit for removal of the said toilets. The plaint came to be rejected by order dated 15/05/2003. That order attained finality as the plaintiff did no challenge the same. The defendants nos.4 & 5 raised a counter claim against the 3 plaintiff. In para 4, the defendants had pleaded, that the plaintiff through his sons namely Mahadev Vinayak Ghadi, Rajendra Vinayak Ghadi, Deelip Vinayak Ghadi and Shripad Vinayak Ghadi, daugher Sarita Vinayak Ghadi and daughter in law Premlata Mahadev Ghadi had demolished the said toilets on 16/08/2000, thereby causing a loss of Rs.10,500/- to defendant no.4. In para 6(a), the said defendants had pleaded that there was a criminal case bearing no.38/S/2000/A filed before the JMFC, Bicholim in respect of demolition of the said toilets against the sons, daughter and daughter in law of the plaintiff and the Court was pleased to punish the said accused by judgment/order dated 30/07/2002. 6. The defendants had led evidence of DW4/Anand G. Gadi, who had stated in para 3 of the affidavit, that the said Mahadev Vinayak Ghadi, Premlata Mahadev Ghadi, Rajendra Vinayak Ghadi, Deelip Vinayak Ghadi and Shripad Vinayak Ghadi, Sarita Vinayak Ghadi, who are the sons, daughter and daughter in law of the plaintiff had demolished the said toilets constructed by the Government. In para 9, it was stated by him that the said toilets were demolished by the plaintiff through the sons and daughter in law for the purpose of using the said area for his house. 4 7. The learned trial Court has come to the conclusion that the plaintiff was against the construction of the said toilets as the plaintiff wanted to use the land, occupied by the said toilets. The learned trial Court further observed that in the light of the said circumstances an ordinary prudent man would think that it is the plaintiff who got sulabh toilets demolished through his children and daughter in law and that was the inference to be taken considering the ordinary course of human conduct and, therefore, the said defendants had proved that it is the plaintiff who had demolished the said toilets. 8. Shri Lotlikar, learned Counsel appearing on behalf of the plaintiff, submits that the criminal case was not filed against the plaintiff but was filed against his sons and daughter in law and it is they who were convicted and not the plaintiff. Learned Counsel further submits that the defendants’ witness the said DW4/Anand G. Gadi had clearly set out in para 3, the names of the sons and daughter in law, who had demolished the said two toilets and, in such circumstances, the plaintiff could not have been saddled with the liability to pay compensation for demolition of the said two toilets even assuming that the case was of the civil nature. Shri Salkar, the learned additional Government advocate on behalf of 5 the Government submits that it was the case of the plaintiff that defendants nos.1 to 3 had demolished the said toilets and not his sons or daughter in law and therefore the conclusion of the learned Additional District Judge could not be faulted. 9. In my view, the inference drawn by the learned trial Court in holding the plaintiff responsible for the demolition of the said toilets cannot be accepted. Admittedly, the plaintiff was not an accused in the criminal case, where sons and the daughter in law of the plaintiff were convicted and sentenced. DW4/Anand Gadi had also made a categorical statement against the said persons who had demolished the said toilets in para 3 of the affidavit in evidence. What the plaintiff stated in para 9 was a matter of surmise. In case the toilets were demolished by the sons of the plaintiff namely Mahadev Vinayak Ghadi, Rajendra Vinayak Ghadi, Deelip Vinayak Ghadi and Shripad Vinayak Ghadi, and daughter Sarita Vinayak Ghadi and daughter in law Premlata Mahadev Ghadi, in my view, neither criminal nor civil liability for demolition of the same could have been saddled on the plaintiff. In other words, the plaintiff could not have been saddled with civil liability to pay damages on a mere surmise. 6 10. In the above view of the matter, this appeal deserves to succeed and the impugned judgment and order deserves to be set aside. Consequently, the appeal is allowed and the impugned judgment/decree is hereby set aside with no order as to costs. N.A. BRITTO, J. NH/-