1. Heard Mr. Dessai, learned Senior Counsel appearing on behalf of the appellants and Mr. Mascarenhas, learned Counsel appearing on behalf of respondents no. 1 to 4.

2. This Second Appeal is filed against the judgment, order and decree dated 21/01/2004 passed by the Additional District Judge-III, South Goa, Margao (First Appellate Court) in Regular Civil Appeal No. 42 of 2001, by which the Judgment, order and decree dated 12/03/2001 passed by the Civil Judge Junior Division, Margao, (Trial Court), in Regular Civil suit No. 39/1986/C, has been quashed and set aside.

3. The appellants and respondents no. 5 to 8 were the plaintiffs in said Civil Suit whereas respondents no. 1 to 4 and 9 were the original defendants therein. Parties shall, hereinafter, be referred to as per their status in the said civil suit.

4. The plaintiffs had filed the said suit for permanent injunction to restrain the defendants, their relations, servants, etc. from encroaching into the plaintiffs' land and/or from making any extensions or encroachments or erecting any structure into the plaintiffs' land and for mandatory injunction directing the defendants to remove and/or demolish the southern encroachment and/or extension made to the defendants' house to the extent of four metres in the plaintiffs' land as well as the south- eastern encroachment made in the plaintiffs' property to the extent of 13.50 square metres as shown in the plan.

5. The case of the plaintiffs, after amendment of the plaint, in short, was as follows:

There exists a property known as “MANDXEMELINGA” bearing land registration description no. 21741 of book B and 58 situated at Baradi of Velim Village of Salcete Taluka. By Deed of Partition (Escritura de Divisao) dated 22/11/1943, the said property alongwith the other properties namely “Aforamento Vaz” or “Garmenda” and “Tambiachi-Galle” was divided or partitioned into two halves between the plaintiffs' family and the defendants' family as a result of which, the plaintiffs and the defendants are in exclusive enjoyment and possession of their respective portions allotted to them. But the said property “MANDXEMELINGA” was a vast property and at the time of partition, it was divided in such a way that alternate plots were allotted to the plaintiffs and to the defendants. The plots allotted to the defendants are surveyed in the cadastral survey of village Velim under nos. 42/2, 42/4, 42/7, 42/9 and 43/16, whereas the plots allotted to the plaintiffs are surveyed under nos. 40/3, 42/1, 42/5, 42/6, 42/8, 42/10 and 43/10. A portion of the said property belonging to the plaintiffs and surveyed under no. 42/10 is demarcated on its northern side by a ridge. A portion of the said property belonging to the defendants is surveyed under no. 42/9 in which there exists a residential house of the defendants. Some time in March, 1984, the defendants made an illegal extension on the southern side of the said house by constructing a structure covered with palm leaves wherein the defendants are storing firewood and other materials, thereby encroaching upon the plaintiffs' land on its northern boundary to the extent of about 4 metres as shown in the sketch/plan annexed to the plaint as Exhibit 5. The plaintiffs took up the matter before the Village Panchayat of Velim and the Village Panchayat advised the plaintiffs to approach the Civil Court. The plaintiffs relied upon the assurance of the defendants that they would remove the said extension, but failed to do so. Somewhere in the month of February, 2000, the defendants further encroached into the plaintiffs' property towards the southeastern side to the extent of 13.50 square metres by placing loose stones. This encroachment has been shown in the plan drawn by Engineer Bhende. Hence, the suit.

6. The defendants no. 1(a) and 2 filed their written statement, which was adopted by the defendant no. 1(b). After amendment of the plaint, the defendants no. 1(a), 1(b) and 2 filed additional written state