important point
Normally in the second appeal the High Court should not interfere on the questions of fact, but if on the scrutiny of the evidence it is found that the finding recorded by first appellate court is totally perverse then certainly the High Court can interfere in the matter as it constitutes the question of law.

judgment

A.K. Mathur, J. —

1.This appeal is directed against the order dated 5.3.2001 passed in Second Appeal No.55 of 2000 by the High Court of Bombay at Goa whereby learned Single Judge has set aside the order of the first appellate court and allowed the suit of the original plaintiff and granted injunction restraining the defendants from proceeding with the construction in the suit property or doing anything in the suit property and the defendants were directed to restore the suit property in its previous condition by filling up the foundation trenches and removing anything done or might have been done by the defendants in the suit property. Aggrieved against this order the present appeal was filed.

2.Brief facts which are necessary for disposal of this appeal are that the suit property was granted by the Governor General Do Estado Da India, to one Mr. Antonio D’ Souza on payment of Rupees four nine anna and twenty paise payable each year to the State. Antonio D’Souza died leaving behind his heirs, his children Jose Maria D’ Souza and Elisa D’ Souza. Jose Maria D’ Souza expired leaving behind her daughter Umbelina D’ Souza. Lawrance D’ Souza, husband of Umbelina D’ Souza also died. Umbelina D’ Souza died leaving behind the plaintiff and his brothers. As the plaintiff was staying in Bombay, he requested one Amorim Velho, son of Elisa D’ Souza to look after the property and accordingly, he was looking after the suit property till 1977. Thereafter, Joildo De Aguiar looked after the property. In August,1981 Aguiar went abroad and returned in November,1981. On his return he found that some construction work was undertaken by M/s.Pinto Engineers and Contractors, Defendant No.3 through their agents. Then Robert D’ Souza filed a regular suit in the court of the Civil Judge, Junior Division, Panjim and prayed that the defendants and their agents should be restrained by perpetual injunction from interfering in any manner with the possession of the plaintiff and his brothers in respect of the suit property and they be restrained from proceeding with the works of construction in the suit property and to return the suit property in its original condition. The defendants filed their written statement and resisted the suit. Thereafter during the pendency of the suit the plaintiff died and respondents l to 7 were brought on record as legal representatives of the deceased plaintiff. On 5.12.1998, learned Civil Judge, Junior Division, Panjim decreed the suit restraining the defendants by perpetual injunction from interfering with the possession of the plaintiffs in respect of the suit property and from proceeding with the work of construction. Learned Civil Judge, Junior Division further directed the defendants to restore the suit property in its previous condition by filling up the foundation trenches and removing anything done in the suit property. Thereafter a regular civil appeal being Regular Civil Appeal No.1 of 1999 was filed in the Court of Additional District Judge, Panaji. Learned Additional District Judge by order dated 10.4.2000 allowed the appeal filed by the appellants and dismissed the suit. Thereafter, respondent Nos. 1 to 7 filed a second appeal being Second Appeal No.55 of 2000 in the High Court of Bombay at Goa. Learned Single Judge of the High Court framed the following questions of law:

(i)Whether the District Judge erred in dismissing and/or rejecting the claim of the plaintiffs for permanent injunction on the ground that from the plaint it could be inferred that the plaintiffs had admitted loss of possession of the suit property in favour of the defendants/ respondents ?”

Learned Single Judge after considering the matter allowed the second appeal and set aside the order passed by the first appellate court and confirmed the decree of the trial court. Hence the present appeal.

3.We have heard learned counsel for the parties and perused the record. Learned Single Judge after examining the matter found that in fact on the date