JUDGMENT :

M.S. SONAK, J.

1. Heard Mr. Nigel da Costa Frias for the appellant and Mr. M.B. D’Costa learned Senior Advocate for respondent No. 1.

2. After this matter was argued for some time, it became apparent that the impugned judgment and decree made by the First Appellate Court on 19-7-2007 will have to be set aside and the matter restored to the file of the First Appellate Court for disposal of Regular Civil Appeal No. 78 of 2005 afresh on its own merits and in accordance with the law.

3. This order will have to be made in this Second Appeal quite reluctantly and the brief reasons for the same are now set out hereafter.

4. The appellant is the original defendant No. 2 and respondent No. 1 is the original plaintiff in Regular Civil Suit No. 24/96/C. In the suit the plaintiffs had prayed for the following reliefs:

“(a) Suit may please be decreed with costs. Defendants, their servants and agents be restrained by permanent injunction from obstructing the Plaintiff from completing the construction of the suit house.

(b) The defendants be directed by Mandatory injunction to remove forthwith all the obstruction i.e. the compound walls put by them blocking the right of way on the Suit way of