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IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 53 OF 1997

Siridao Estate Pvt. Ltd.,

A registered company

having its office at

Dempo House, Afondo de

Albuquerque Road,

Panaji, Goa and represented

by its Director Shrti Laxmi

Narayan V. Dempo,

R/o Panaji, Goa. ... Appellant/Original

Plaintiff.

versus

Smt. Sita Rama Kankonkar

R/o Palem-Siridao, Ilhas-Goa

Legal Representative of

deceased Yeshwant Rama

Kankonkar, at present represented

by her Attorney Shri Dilip Rama

Kankonkar, R/o Palem, Siridao,

Ilhas, Goa. ... Respondent/Original

Defendant.

Mr. S. M. S. Usgaonkar, Advocate for the Appellant.

Respondent exparte.

CORAM : N. A. BRITTO, J.

DATE : 2ND SEPTEMBER,2005.

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ORAL JUDGMENT

This is plaintiff's second appeal arising from R.C.S.

No.58/88/B.

2.

There is no dispute that the plaintiff is the owner of

the property known as "Palem" surveyed under No. 56 of Siridao

village and "bhatkar" of the respondent in respect of a structure

identified in the survey records under No.34 and bearing House

No.436 of the Village Panchayat. The said house was recorded

in the Record of Rights in the name of Rama Vithal Kankonkar,

the father of the defendant.

3.

The plaintiff filed a suit against the defendant with an

allegation that about two weeks prior to 29-2-1988, the

defendant constructed a new house admeasuring 48 sq. meters at

a distance of about 10 meters or so from house no.77 belonging

to one Yeshwant Bicu Kankonkar. It was also the case of the

plaintiff, brought about by subsequent amendment, that

somewhere in May, 1971 the defendant extended the said newly

constructed structure thereby encroaching a total area of

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45.85 sq. meters. It was the case of the plaintiff that the area

prior to the said construction of the said structure by the

defendant, was an open and vacant land. The plaintiff,

therefore, filed a suit against the defendant, interalia, with a

prayer for the removal of the encroachment done by the

defendant and to restore the same to its original condition.

4.

The case of the defendant was that the suit house was in

existence since about 15 years and the same was constructed by the father

of the defendant with the permission and consent of the Dempo family and

also residing lawfully in it and since the late father of the defendant resided

in the suit house lawfully and with the consent of the Dempo family, he

resided as a mundkar of the Dempo family and since the suit house became

in dilapidated condition and required urgent repairs, therefore, the

defendant made repairs to the suit house and renovated the same. The

defendant stated that the old house had a plinth of 48 meters and even

after the renovation it had the same area.

5.

The learned Civil Judge, Junior Division framed 4 issues. Issue

No.2 was "whether the plaintiff proved that in February,1988 the defendant

trespassed in the open land and erected a new house of 48 sq. meters".

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Issue No.3 was whether the defendant proved that the said house was

constructed in the year 1973. The learned Civil Judge answered Issue No.2

in the affirmative while issue No.3 was answered in the negative and

thereafter the learned Civil Judge proceeded to partly decree the suit of the

plaintiff directing the defendant to remove the encroachments done in the

suit area and to restore the same to its original condition.

6.

The defendant preferred an Appeal being R.C.S. No.10/96. The

learned appellate Court took the view that the learned Civil Judge, Junior

Division had lost sight of the defence taken by the defendant in the written

statement and further stated that the defendant had clearly stated that the

suit house