C.V. Bhadang, J.

The challenge in this appeal is to the judgment and decree dated 14/9/2005 passed by the learned Additional District Judge at Mapusa in Regular Civil Appeal no. 70/2004. By the impugned judgment, the appeal filed by the respondent has been allowed thereby dismissing the suit filed by the appellant.

2. The brief facts necessary for the disposal of the appeal may be stated thus:

"That the appellant filed a suit against the respondent before the learned Civil Judge Junior Division at Pernem, for injunction restraining the respondent or anybody on his behalf, from doing any extension to the existing house or making any encroachment in the suit property thereby causing any injury to the plaintiff and from committing any breach of the appellant's right of co ownership over the suit property."

3. The suit property consists of land survey no. 43/12 known as "Govind Naik Bhatlem" situated at Virnoda Taluka, Pernem. Admittedly the suit property is common undivided and joint ancestral property belonging to the appellant, the respondent and other co owners. The respondent, who is admittedly the co owner of the suit property has his residential house standing therein. The appellant has also his house standing in the suit property which is to the eastern side of the house of the respondent.

4. The appellant was working as Assistant Head Master in Mata Secondary High School Vasco and has since retired in the year 1996-97. After his retirement the appellant has been residing in his house situated in the suit property. The material case made out by the appellant was that the house of the respondent is standing "very close to the house of the appellant". There was a small structure/shed consisting of mud parapets with palm leaves roofing on the eastern side of the house of the respondent. Late Vishnu Parab, the grand father of the respondent, used to keep his goats in the said shed. After the death of Vishnu Parab the respondent ceased to have any goats and the said structure was lying idle. It is the material case that about 20 to 25 years prior to the filing of the suit the said structure 'got demolished', and the space on which the said structure was standing was lying open.

5. Sometime in the first week of February 2002, the respondent started clearing the debris and digging in the said open space. The appellant accosted the respondent requesting him not to undertake any construction in the said open space. According to the appellant, the respondent told him that the respondent would be constructing an additional room in the said open space. On 20/5/2002, the respondent started digging trenches in the open space for laying foundation and subsequently on 29/6/2002, the respondent bought about 5 to 6 truck loads of laterite stones, for the purpose of constructing a room. According to the appellant, by digging trenches the respondent has encroached in the suit property to the extent of 40.38 sq.mtrs and as a result of the excavation, the open space on the north-western side of the appellant's house has been reduced to 1.15 metres. In short according to the appellant the proposed construction would be a constant source of nuisance to him causing health hazards and a likely obstruction and blockade to the natural flow of rain water, risking stability of the house of the appellant. It was contended that the respondent has no right to construct in the said open space, without the consent or permission of the appellant, who is admittedly the co owner and thus the proposed construction constitutes violation of the appellant's proprietary rights.

6. The respondent resisted the suit. It is, however, not disputed that the parties are co owners of the suit property. It was contended that the appellant and his two brothers are staying in their own houses at the place of their employment and they visit the house only during religious festivals. It was, however, not disputed that the distance between the eastern wall of the respondent's