1 IN THE HIGH COURT OF BOMBAY AT GOA Second Appeal No.75 of 2008 1. Zelia D'Souza, Major, wife of Xavier D'Souza, residing at Curca, Tiswadi, Goa. 2. Xavier D'Souza, son of late Francisco D'Souza, husband of the Appellant No.1, major residing at Curca, Tiswadi,Goa. ... Appellants V e r s u s 1. Shri Vassudev Dattu Pednekar alias Vassudev Pednekar, major, bachelor, residing at Gujrabhat, Santana, Tiswadi, Goa (since deceased through legal heirs) a) Shri Subha Datta Pednekar, widower, brother of late Vassudeve Pednekar (since deceased now by his legal representatives) b) Miss Jani Subha Pednekar, spinster, niece of the deceased defendant, c) Mr. Manguesh Subha Pednekar, bachelor, nephew of the deceased defendant, d) Miss Surang Subha Pednekar, spinster, daughter of Shri Subha Pednekar, e) Mrs. Suwarna Chandras Bangle, 2 niece of the deceased defendant and her husband f) Mr. Chandra Bangle All residing at Gujirabhat,Santana, Tiswadi, Goa. g) Mrs. Shubhangi Pundalik Pednekar, r/o Santana, Tiswadi, Goa. h) Mr. Pundalik Subha Pednekar, nephew of the deceased defendant, r/o Gujirabhat, Santana, Tiswadi,Goa. ..... Respondents. Mr. Ryan Menezes, Advocate for the Appellants. Mr. Ranjit Satardekar, Advocate for the Respondent nos. 1(B)(D),(G),(H) (C). CORAM: A. P. LAVANDE, J. RESERVED ON :17/09/2010. PRONOUNCED ON: 23/09/2010. ORDER: This second appeal has been preferred by the original plaintiffs challenging judgment and decree dated 13.12.2006 passed by the Ad-hoc Additional District Judge at Panaji, in Regular Civil Appeal No.08/2006 by which the appeal preferred against judgment and decree dated 21.12.2005 passed by the Civil Judge, Junior Division, Panaji in Regular Civil Suit No.318/2000/A/D has been 3 partly allowed. 2. The plaintiffs filed the above suit claiming title to the suit property by virtue of the sale deed dated 12.2.1993. The plaintiffs sought decree of mandatory injunction directing the original defendant to demolish the entire illegal construction carried out by the original defendant in an area of about 50 sq.metres. The plaintiffs also sought recovery of possession and permanent injunction. The trial Court by judgment and decree dated 21.12.2000 dismissed the suit. The Appellate Court by impugned judgment and decree partly allowed the appeal and granted relief of permanent injunction against the defendants, the legal representatives of the original defendant from encroaching upon the suit property or making any construction in the suit property outside their existing cowshed. Aggrieved by the decree of the lower appellate Court refusing the relief of mandatory injunction 4 and recovery of possession, the plaintiffs have filed the present appeal. During the pendency of the appeal before the lower appellate Court after the arguments were concluded and when the matter was fixed for judgment the plaintiffs filed an application for amendment seeking addition of para 9A in the plaint and also sought consequential relief (aa). The same read thus: “ Proposed Para 9A The Original Defendant some time after the present suit was adjourned sine die, demolished the old cowshed which was a temporary structure consisting of palm leaves supported by bamboo sticks. As a result, presently, the cowshed is an entire new structure which is resting on 12 masonry columns on which rafters are placed and mangalore tiles which 5 was the new structure erected by the original defendant by encroaching an area of 50 square metres. The present cowshed, as existing, is therefore an unauthorized structure and the entire structure is liable to be demolished. Proposed Prayer (aa) For an order and decree of mandatory injunction directing the defendant to demolish the entire cowshed as presently existing and consequently to hand over to the plaintiffs, the possession of 50 square metres of the suit property, usurped by the defendants. 3. As stated above, the lower appellate Court 6 partly allowed the appeal but dismissed the amendment application filed by the plaintiffs. 4. Mr. Menezes, learned Counsel for the appellants/plaintiffs submitted that the lower appellate Court ought to have decided the application for amendment first before taking up the appeal on merits and to that extent, the learned lower appellate Court has excercised jurisdiction illegally. According to Mr. Menezes, during the pendency of the suit the original defendants had demolished the old cowshed consisting of palm leaves and supported by bamboo sticks and only the new structure which was constructed by the defendants in an area of 50 sq.metres was existing and as such, the lower appellate Court ought to have granted decree of mandatory injunction and recovery of possession. The learned Counsel further submitted that the lower appellate Court ought to have appointed Commissioner to identify 7 the area encroached and it having not done so has committed jurisdictional error and therefore the impugned judgment and decree to the extent it refuses prayer of mandatory injunction and recovery of possession, is liable to be set aside. In support of his submissions, he relief upon the following decisions: i) Kisanlal Maniklal Rathi Vs. Dinkar Yashwant Patil, 2003 (Supp.2) Bom. C.R. 329. ii) Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawantade, 2006(Supp.) Bom. C.R. 1018. 5. Per contra Mr. Satardekar, learned Counsel for the respondents/ defendants submitted that the lower appellate Court has correctly refused to grant mandatory injunction and recovery of possession in as much as, the plaintiffs failed to identify the alleged encroached portion by leading cogent evidence. He further submitted that the lower appellate court has rightly dismissed the application 8 for amendment since the facts sought to be brought on record by the proposed amendment were to the knowledge of the plaintiffs and the plaintiffs having not taken any steps during the pendency of the suit to seek amendment of the plaint are not entitled to seek amendment only after the arguments were advanced in the appeal and the matter was fixed for judgment. Mr. Satardekar further submitted that the lower appellate Court has correctly exercised jurisdiction and therefore no interference is warranted with the judgment and decree passed by the lower appellate Court. 6. Having considered the rival submissions and having perused the record, I am of the considered opinion that no case has been made out by the plaintiffs/appellants for admission of the second appeal. Both the Courts below have rightly held that the plaintiffs have failed to identify the exact area encroached by the defendants by 9 carrying out illegal construction in the suit property. It is well settled that the plaintiffs seeking mandatory injunction and recovery of possession in respect of illegal construction carried out by the defendants has to identify the exact dimensions and location of the illegal construction carried out by the defendants in order to succeed in the suit. The plaintiffs having not done so, both the Courts below were justified in refusing the relief of mandatory injunction and recovery of possession to the plaintiffs. The lower appellate Court, in my opinion rightly on the basis of title of the plaintiffs granted permanent injunction against the original defendants. 7. In so far as the argument of Mr. Menezes that the lower appellate Court ought to have decided the application for amendment before deciding the appeal on merit is concerned, I find no merit in the said argument. Firstly, the proposed amendment appears to be only an 10 attempt to get out of the findings given by the trial Court that the plaintiffs did not identify the exact location and dimensions of the encroached portion of the illegal construction carried out by the original defendants, thereby encroaching upon the suit property. I find merit in the submission of Mr. Satardekar that the proposed amendment was grossly belated. The plaintiffs had sufficient opportunity to bring to the notice of the trial Court such events which according to the plaintiffs had taken place during the pendency of the suit itself. It is difficult to believe that the plaintiffs were not aware about the alleged change in circumstances in respect of the alleged illegal construction. Therefore, the proposed amendment does not appear to be bonafide one. 8. In so far as the two judgments cited by the learned counsel for the appellants, I find that the same do not advance the case of the plaintiffs in as much as it is not 11 that in every suit filed for mandatory injunction and recovery of possession and demolition of illegal construction, the Court has to appoint a Commissioner although the plaintiffs choose not to seek appointment of Commissioner. 9. I am of the considered opinion that the findings recorded by the lower appellate Court while rejecting prayer for mandatory injunction and recovery of possession are well founded and no fault can be found with them. In any event no substantial question of law is involved in the present appeal. Hence, the appeal is dismissed with no order as to costs. A. P. Lavande, J. Ap/-