JUDGMENT

M. S. Sonak, J. - Heard Mr. A. D. Bhobe with Ms. K. Govenkar, learned counsel for the Appellants, and Mr. C. A. Coutinho learned counsel for the Respondents.

2. This appeal was admitted on 22.10.2010 on the following substantial questions of law.

(i) Whether in the absence of relief of recovery of possession of an area alleged to have been encroached by the appellants, respondents could maintain the suit against the appellants?

(ii) Whether both the Courts below could have granted relief of injunction in favour of the respondents after refusing to grant mandatory injunction as sought by the respondents holding that the respondents had failed to prove the encroachment as alleged by them?

3. The Appellants are the original defendants and the Respondents are the original plaintiffs in Regular Civil Suit No. 182/99/D instituted in the Court of the Civil Judge Junior Division, Margao. The plaintiffs filed a suit seeking a permanent injunction to restrain the defendants from interfering with the suit property which was described in the plaint and also for mandatory injunction to remove the barbed wire fencing erected in the suit property bearing survey No.44/26. The trial Court decre