The Court emphasized the importance of adequate identification of the property and the structure in granting a mandatory injunction. It also highlighted the significance of proving the illegality and unauthorised nature of the structure.

JUDGMENT

1. Heard Mr. Desai for the appellants and Mr. Agni for the respondent.

2. This appeal takes exception to the Judgment and Decree dated 10.11.2017 made by the First Appellate Court in Regular Civil Appeal No.92/2016.

3. The appellants are the original defendants, and the respondent is the original plaintiff in Regular Civil Suit No.40/2010/C. In the Suit, the plaintiff had applied for a permanent injunction restraining the defendants from interfering with the suit property and a mandatory injunction to remove the structure the defendants had illegally and unauthorisedly put up in the suit property.

4. The Trial Court, by Judgment and Decree dated 10.08.2016, granted the decree for a permanent injunction but declined the relief of mandatory injunction. This relief was denied on the grounds of alleged failure on the part of the plaintiff to identify the structure in question.

5. The appellants-defendants did not appeal the Trial Court's decree. This means they accepted the decree of permanent injunction restraining them from interfering with the suit property. However, the original plaintiff appealed the denial of relief of mandatory injunction.

6. The First Appellate Court, vide the impugned decree, granted the decree for mandatory injunction. Hence the present Second Appeal.

7. Mr. Desai proposed the following substantial questions of law:-

(I) Whether in light of the ratio laid down in the case of "Bento Antonio vs. Rosario Carneiro" (2014) 4 MLJ 366, it was incumbent upon the Appellate Court to exercise powers under Order XXVI, Rule 9 of CPC and appoint a commissioner before partly reversing the Judgment and Decree of the Trial Court and granting mandatory injunction of demolition of alleged encroachment, more particularly in the background of the fact that the Plaintiff/Respondent had failed to identify the Suit property vis-a-vis the title documents?

(II) Whether the Appellate Court can exercise relief of mandatory injunction when the Plaintiff/Respondent had failed to establish title in respect of the suit property and the relief of permanent injunction was granted to the Plaintiff/Respondent primarily on the basis of the entry of the Plaintiff/Respondent in the mutation records and the presumption arising therefrom from Section 105 of the Goa Land Revenue Code?

8. Insofar as the first substantial question of law is concerned, the same does not arise in this matter. The entire suit property was adequately described in the plaint. The structure in respect of which mandatory injunction was applied was the structure in the suit property that was adequately described. Accordingly, the Trial Court was not justified in declining the relief of mandatory injunction after concluding that the original plaintiff was entitled to a decree of permanent injunction restraining the appellants-defendants from interfering with the suit property. This was more so after the Trial Court assessed the evidence on record and found that the structure in question was illegal and unauthorised. The Trial Court also noted that the Panchayat had issued a stop work order when the construction of this structure was in progress. Having done all this, the Trial Court was not justified in declining mandatory injunction relief. The facts in Bento Antonio ( Supra ) were entirely different. There was a serious issue of identification of the subject matter.

9. The First Appellate Court has considered the matter from the proper perspective and, after answering all the contentions raised by and on behalf of the parties, decreed the Suit in its entirety and issued the mandatory injunction. Further, even the Appellate Court has, in paragraphs 36, 37 and 38, adverted to the aspect of patent illegality of the structure put up by the appellants. Both the Trial Court and the Appeal Court have referred to the admission on the part of the appellants about the structure being illegal in the sense that any permissions from any authorities did not back the same.

10. Both the Co