Antonetto John D.Souza @Johnny D'Suza vs Mrs.Aldila Braganza

2. The factual matrix of the case is as follows:

3. The appellant challenged the said order by filing Writ Petition No.422/2008 before the High Court and obtained an order of stay. The respondent and her father-in-law filed an appeal from Order No.59/2008, against the order dated 13th February, 2008 passed by the Civil Court at Mapusa, whereby the application for temporary and mandatory injunction filed by the respondent and her father-in-law in Civil Suit No.134/07/B was dismissed. The said writ petition and appeal from order came to be disposed of by an order dated 4th May, 2009 which is as under:

4. The respondent, thereafter, filed Miscellaneous Civil Application No.348/2011 in the said writ petition for recall of the order dated 4th May, 2009 passed in the writ petition, inter alia, on the ground that there was a misrepresentation before the Court that there was a suitable alternate access available to the respondent. By order dated 14th March, 2012, the High Court observed that according to the learned Senior Counsel for respondent No.1 (appellant herein) the access having width of 1.5 metres is found at the site, but the said contention was disputed by the respondent. The High Court to verify the situation at loco, directed the Surveyor of the office of the Mamlatdar, Bardez to carry out the site inspection and ascertain whether the said access of 1.5 metres as depicted in the plan produced on record was available on the site. As the said order was not complied with, by another order dated 18th April, 2012, passed in M.C.A. No.348/2011, the High Court directed Mamlatdar, Bardez to inspect and verify the width of alternate access provided to the respondent by the Village Panchayat of Calangute. The Surveyor attached to the office of the Mamlatdar conducted the inspection of the said alternate access on 24th April, 2012 and prepared a report along with plan and submitted the same before the High Court. The said plan revealed that the said alternate access does not have a minimum uniform width of 1.5 metres and at some places the width was not 1.5 metres and it varied at various other points.

7. Without going into the correctness of the contentions of the Counsel in respect of the alternative access on the basis of which the Writ Petition came ot be disposed of by this Court, the petitioner is always at liberty if she is so entitled to approach the learned Mamlatdar with regard to her said claim of access to her property. In case any such application is filed the learned Mamlatdar will have to decide the same after hearing the concerned parties in accordance with law.”

6. Thereafter, the respondent filed an application dated 29th June, 2012, before the Mamlatdar, Bardez to reopen the proceedings. By the judgment and order dated 28th March, 2013, the Mamlatdar, Bardez dismissed the said application. The Revision Application against the same was also dismissed on 20th September, 2013. Against the aforesaid order, the respondent filed a writ petition before the High Court. After hearing the parties by the impugned judgment, the High Court while setting aside the order passed by the Mamlatdar and the Revisional Authority passed the following order:

9. The dispute between the appellant and the respondent reached finality when the High Court disposed of the Writ Petition No.422/2008 by order dated 4th May, 2009, therein the respondent conceded that the lis in the Mamlatdar Court’s no longer remains. Learned counsel on behalf of the respondent undertook to withdraw the application in the Mamlatdar’s Court. The office of the Village Panchayat, Calangute was ordered to issue the completion certificate as requested by the respondent which could not be issued due to the election. The High Court directed to issue the completion certificate on or before 31st May, 2009. The writ petition was disposed of accordingly and Appeal from Order No.59/2008 was allowed to be withdrawn.

12. For the reason aforesaid, we set aside the judgment and order dated 18th November, 2013 with liberty to respondent to move before the Court of competent jurisdiction, if completion certificate has not been issued by the Village Panchayat, Calagute in terms of the order passed in Writ Petition No.422/2008 or if the respondent did not satisfy with such completion certificate.

13. The appeal is allowed with the aforesaid observations. No costs.