-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 82 OF 2010 Mr. Murali Devsekar (since deceased represented by his legal representatives) 1a. Shri Gockuldas M. Devesekar 1b. Shri Gajanan M. Devesekar 1c. Shri Kailash M. Devesekar 1d. Shri Megnath M. Devesekar 1e. Shri Rajendra M. Devesekar (Since deceased) As per Order dated 15.03.2011 in MCA 941/2011) 1f. Shri Akash M. Devesekar All major of age, Resident of H. No. 605, Karanzale, Madkal, Ponda, Goa. P. O. Mardol, Goa. (Org. Defendants No. 1 and 2). …... Appellants V e r s u s 1. Mrs. Maria Shanty Colaco e Barreto Resident of H. No. not known Near Old Kare Law College, Margao, Goa. … (Org. Plaintiff) 2. Mr. Yeshwant Mayenkar, Resident of H. no. not known, Keeratelem, Baina, Vasco da Gama, Goa... (Org. Defendant no.3) 3. The Government of Goa, Through the Chief Secretary Secretariat, ...(Org. Defendant no.4) 4. Mrs. Suman Bapu Mathonkar, Resident of H. No. 21(2), Keertalem, Baina, -2- Vasco da Gama, Goa. …... Respondents Mr. Rohit Bras De Sa, Advocate for the Appellants. Mr. G. Vijay Chandran, Advocate for Respondent no.1. Mr. S. Vahidulla, Government Advocate for the Respondent no.3. Coram :- F. M. REIS, J Date : 29 th September, 2011. ORAL JUDGMENT Heard Shri Rohit Bras D' Sa, learned Counsel appearing for the Appellant, Shri G. Vijay Chandran, Advocate for the Respondent no.1 and Shri S. Vahidulla, Government Advocate for the Respondent no.3. 2. The above Appeal challenges the Judgments passed by the Courts below whereby the suit filed by the Respondent no.1 directing the removal of the encroachment made in the suit property came to be decreed. The suit came to be filed by the Respondent no.1 on the ground that she purchased a piece of land admeasuring 703 square metres and a plot bearing no. 88 situated at Baina, Vasco, registered in Land Registration Office under no. 21421 and in the Land Revenue Office under no. 2415 pursuant to a Sale Deed dated 06.10.1971. It is further the case of the Respondent no.1 that the said plot is bounded towards the East by the property of the heirs of Mr. Joaquim Colaco, south by the Government land, to the west by the public road and to the north by the major portion of plot no. 88 purchased by Subharao. It is further her case that the suit property was like a -3- small pond at the time of the purchase and it was her father who filled up the suit property with mud and brought the suit property to the road level. It is further her case that the Appellant no.1 and the Respondent no.4 herein are having their dwelling house in the Government property under chalta no. 180, P.T.Sheet no. 151 while the Respondent no.2 resides in the property of Mr. J. B. Faleiro, surveyed under no. 41 of P.T.Sheet no. 151. It is further her contention that somewhere in the year 1978, the Appellants and the Respondent no. 4 encraoched by illegally building a structure in the suit property and that the Respondent no.2 also encroached by extending her dwelling house illegally into the suit property. Both these encroachments were shown in exhibit D of the plaint. Accordingly, the suit came to be filed praying, inter alia, for a mandatory injunction directing the Appellants and the said Respondents to restore the southern and the western boundary of the suit property to its original position and for other reliefs as stated in the plaint. 3. The Appellants filed their written statement contesting the claim put forward by the Respondent no.1. It is further their case that the plot no. 88 is quite far from the suit property which Respondent no.1 is falsely claiming. It is further their case that the property of the Respondent no.1 does not touch the property of the Appellants. The Appellants also disputed that they had constructed any new room or structure or put any fencing as claimed by Respondent no.1. For the other reasons as stated in the written statement, the Appellants prayed that the suit be dismissed. 4. The learned Civil Judge, Senior Division, at Vasco, by Judgment and -4- Decree dated 30.01.2002, partly decreed the suit filed by the Respondent no.1. The Appellants and the Respondent no.4 were directed to remove the encroachment they had made in the property of the Respondent no.1. The claim of the Respondent no.1 for mesne profits came to be rejected. 5. Whilst discussing the evidence on record, the learned Judge came to the conclusion that the Respondent no.1 has proved the ownership and possession over the property surveyed under no. 179 of P. T. Sheet no. 151. The learned Judge also considered the Order produced by the Respondent no.1 from Sub- Divisional Magistrate and other material on record to come to the conclusion that the Respondent no.1 is the owner in possession of the suit property. The learned Judge has also found that the encroachment carried out by the Appellants was established by the Respondent no.1. The plan produced on record according to the learned Judge shows the encroachment carried out by the Appellant no.1 in the property of the Respondent no.1. The learned Judge has also taken note of the fact that the original Defendant no.1/Applicant himself has admitted in the cross examination that he has planted trees in a line to make a fence in survey no. 179 and that he has got his house in the property bearing survey no. 180. He has also admitted that he has a compound surrounded by trees in the property surveyed under no. 179. On appreciating the evidence on record, the learned Judge came to the conclusion that the Appellants had encroached into the property of the Respondent no.1. The learned Judge also noted that from the Sanad produced by the Appellants, they were allotted an area of 167 square metres from the property under chalta no. 180 of P. T. Sheet no. 151. The learned Judge has found that the Appellants have failed to show that they were lawfully occupying any area beyond -5- the said land granted to the Appellants. The learned Judge as such partly decreed the suit in the manner stated herein above. 6. The Appellants preferred an Appeal before the learned District Judge, South Goa, at Margao, being Regular Civil Appeal no. 136/2009 which by Judgment and Decree dated 30.06.2010. The Appeal came to be dismissed and the Judgment of the learned Judge was confirmed. Whilst passing the said Judgment, the Lower Appellate Court has found that on perusal of the documents produced on record at exhibit P.w.1/A, it clearly shows the encroachment done by the Appellants in the property of the Respondent no.1. The learned Judge has also found that the evidence discloses that at the time of filing of the suit, the encroachment was to the extent of 30 square metres and that the trespass was towards the southern side of the property of the Respondent no.1. The learned Judge also found that a few months prior to the filing of the suit, the encroachment was to the extent of 100 metres. The learned Judge, rejected the claim of the Appellants of title by adverse possession. The learned Judge also noted that the Appellants had admitted that the adjacent land surveyed under no. 179 is of the Respondent no.1 and that the compound of trees is located in said survey no. 179 having a length of 45 metres approximately with a width of 5 metres. The learned Judge as such found that no interference was called for in the Judgment of the learned trial Judge and, accordingly, dismissed the Appeal. 7. Shri Rohit Bras D' Sa, the learned Counsel appearing for the Appellant has essentially assailed the impugned Judgment on the ground that the encroachment directed to be removed has not been properly identified and, as -6- such, the Respondent no.1 may under the garb of the impugned Judgments demolish the whole construction put up by the Appellants in the property surveyed under chalta no. 180 of P.T. Sheet no. 151 of Vasco City. The learned Counsel has taken me through the impugned Judgments passed by the Courts below and pointed out that the Courts below have not at all appreciated the evidence on record to come to a categorical finding as to the location of the alleged encroachment in the property of the Respondent no.1. The learned Counsel further pointed out that the Courts below have failed to consider that the suit filed by the Appellants was barred by law of limitation. Learned Counsel further pointed out that according to the Appellants, the property surveyed under chalta no.179 of P.T. Sheet no. 151, belongs to the Government. According to the learned Counsel, the said property is not referable to the Sale Deed relied upon by the Respondents to claim title to the suit property. The learned Counsel as such submitted that there are substantial questions of law which arises in the present Appeal which requires consideration of this Court under Section 100 of the Civil Procedure Code. 8. On the other hand, the Learned Counsel Shri Vijay Chandran appearing for the Respondent no.1 pointed out that both the Courts below have concurrently come to the conclusion that the Respondents have encroached in the property of the Appellants surveyed under chalta no. 179 of P.T. Sheet no. 151 of Vasco City. The learned Counsel further pointed out that such concurrent finding of fact arrived at after appreciating the material on record cannot be interfered with by this Court as no substantial question of law arises in the present Appeal. The learned Counsel has further pointed out that the Appellants have failed to show any perversity in the findings of the Courts below. The learned Counsel further pointed -7- out that the encroachment directed to be removed by the Appellants is only to the extent located in the property surveyed under chalta no. 179 of P. T. Sheet no. 151 and the Respondent no.1 is not at all interested to remove any structure existing beyond her property surveyed under chalta no. 179 of P. T. Sheet no. 151 of Vasco City. The learned Counsel further pointed out that as far as the claim of the Appellants that the suit is barred by limitation cannot be sustained as it was specifically pleaded in the plaint that the encroachment by the Appellants was carried out around six months prior to the filing of the suit. The learned Counsel as such submitted that the Appeal deserves to be rejected. 9. Having heard the learned Counsel and on perusal of the Record and the Judgments passed by the Courts below, I find that the Courts below after minutely appreciating the evidence on record and considering the Survey Plan as well as the title document produced by the Respondent no.1, have come to the conclusion that the Appellants have encroached into the property of the Respondent no.1. The Courts below have also rejected the claim of the Appellants that they were in adverse possession of any portion of the property surveyed under chalta no. 179 of P. T. Sheet no. 151 of Vasco City. The Courts below have also considered the Sale Deed produced by the Respondent no.1 and have arrived at a categorical finding that the property purchased by the Respondent no.1 is the one surveyed under chalta no. 179 of P.T. Sheet no. 151 which is otherwise not even disputed by the Appellants. This concurrent findings of fact arrived at by the Courts below on the basis of appreciating the evidence on record both oral as well as documentary evidence, cannot be interfered with by this Court under the provisions of Section 100 of the Civil Procedure Code. The learned Counsel appearing for -8- the Appellants was unable to show any perversity in such findings arrived at by the Courts below. As such, I find that there is no substantial question of law which requires consideration by this Court under Section 100 of the Civil Procedure Code. 10. Considering the apprehension of the learned Counsel appearing for the Appellants that the Respondent no.1 may demolish the dwelling house of the Appellants, which is located in the property surveyed under chalta no. 180 of P.T. Sheet no. 151 of Vasco City on the garb of the impugned Judgments and Decrees, I find that such apprehension does not survive in view of the statement of the learned Counsel appearing for the Respondent no.1 to the effect that the Respondent no.1 clarifies that the encroachment to be removed/demolished in accordance with the impugned Judgments by the Appellants is restricted to such encroachments in the property surveyed under no. 179 of P. T. Sheet no. 151 of Vasco City. As such, the Appellants are liable to demolish the encroachment existing in the suit property surveyed under no. 179 of P. T. Sheet no. 151 of Vasco City. 11. Subject to the above, I find no merit in the above Appeal and, consequently, the Appeal stands dismissed. F .M. REIS, J. arp/*