IMPORTANT POINT
A plaintiff must plead the precise area of the property in encroachment cases to establish ownership and encroachment claims; failure to do so undermines the case.

JUDGMENT/ORDER

1. Heard Mr J. P. Mulgaoankar, learned senior counsel who appears along with Ms Rupa Banaulikar for the appellant. Mr Ivan Santimano, learned counsel who used to appear for respondents no.1 and 2 stated that he had no instructions to appear for the legal representatives of deceased respondents no.1 and 2.

2. This second Appeal was admitted on 22/12/2010 on the following substantial questions of law:-

<WXY>(I) Whether the failure of the defendants to prove that the area of their property under survey no.17/5 is wrongly shown in the survey records as concurrently found by the trial and appellate court was not by itself sufficient proof of plaintiffs case that the defendants have encroached on their property under survey no.17/4 ?

(II) Whether the First Appellate Court was not wrong to assume that in the suit involving purely a boundary dispute between the adjoining properties, the title of the properties was also in issue and the area of the property given in the title documents was the determining factor ?</WXY>

3. The appellant is the original Plaintiff, and the respondents are the original defendants in Regular Civil Suit No.25/2000/C instituted in the Court of the Civil Judge, Junior Division at Panaji. Accordingly, the appellant shall be referred to as the Plaintiff and the respondents as the defendants, even for this Appeal.

4. The Plaintiff's case was that he was the owner in possession of a property surveyed under No.17/4 of Chimbel Village purchased by his father by a 14/9/1957 sale deed. The Plaintiff's case was that there was a boundary dispute with the defendants, and therefore the Plaintiff applied to the Survey Authorities for demarcation. By Judgment and Order dtd. 15/11/2005, the Deputy Collector/Sub-Divisional Officer (SDO) ordered demarcation.

5. In terms of the demarcation order, the area of the property surveyed under No.17/4 was shown as 720 sq. mts. Plaintiff's case is that the defendants, by encroaching upon the suit property surveyed under No.17/4, constructed a compound wall therein. Hence, the Plaintiff applied for a permanent injunction to restrain the defendants from continuing with the attempted encroachment and for a mandatory injunction to remove the construction of the compound wall and restore the suit property surveyed under No.17/4 to the Plaintiff.

6. By filing a written statement, the defendants denied the Plaintiff's case. The defendants maintained that the construction of the compound wall after obtaining permission from the local authorities was within their property. The defendants alleged that the Plaintiff took the law into his own hands and illegally demolished a portion of the compound wall. Based on this, the defendants raised a counterclaim seeking damages of Rs.25, 000.00. The defendants also pleaded that the survey records incorrectly stated the area of the property surveyed under No.17/5 as 419 sq. mtrs. when the correct area was 462 sq. mtrs. A counterclaim was raised seeking correction of the survey records by enhancing the area of property surveyed under No.17/5 from 419 sq. mtrs. to 462 sq. mtrs.

7. The defendants also alleged that the Plaintiff had illegally constructed a water tank and a septic tank in the property surveyed under No.17/5. Accordingly, the defendants sought relief to demolish these structures and restore the defendants' property surveyed under No.17/5 to the defendants.

8. The Trial Court, by its Judgment and Decree, dtd. 30/11/2007, partly decreed the suit. The Trial Court restrained the defendants from further digging or constructing in the suit property and ordered the defendants to remove the encroached portion of the compound wall constructed in the suit property. At the same time, the Trial Court also allowed the defendants' counterclaim partly and directed the Plaintiff to pay damages of Rs.10, 000.00 to the defendants.

9. The defendants appealed the Trial Court's decree in the suit, and the Plaintiff filed cross-objections to question the Trial