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IN THE HIGH COURT OF BOMBAY AT GOA

Second Appeal no.58 of 2001

1. Shri Xanu Raghu Shirodkar,

2. Smt. Xanu Shirodkar,

both major of age,

residents of House no.15,

Sim vaddo, Anjuna, Bardez,Goa. .... Appellants

V e r s u s

1. Shri Sebastian Fernandes

2. Smt. Raynah Maria Fernandes,

both major of age,

residents of Flat no.G/103,

Falcon Resorts, First Floor,

Calangute, Bardez, Goa. ..... Respondents

Mr. J.P. Mulgaonkar, Advocate for the Appellants.

Respondents absent though served.

Coram: A. P. Lavande, J.

Date: 1^st October, 2010.

ORAL JUDGMENT:

By this second appeal the appellants take

exception to the judgment and decree dated 29/4/2001 by

which the appeal preferred by the appellants against the

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judgment an decree dated 2/3/2000 passed by the Civil

Judge, Junior Division, Mapusa in Regular Civil Suit no.

176/95/B has been dismissed.

2.

The respondents filed the above suit against the

appellants seeking decree of mandatory injunction against

the respondents to demolish the construction carried out in

the paddy field and to restore the paddy field to its original

condition. The respondents also sought relief of

permanent injunction against the appellants. The parties

hereinafter shall be referred to as per their status before the

trial Court.

3.

Briefly, the facts relevant for disposal of the

present appeal are as follows:

The plaintiffs claimed that the paddy field

named Colbata situated in village Anjuna bearing survey

nos.195/7 and 195/9 admeasuring 1550 sq.metres

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(hereinafter referred to as the suit paddy field) was given

on lease to defendant no.1 by their late mother/mother-in-

law Mrs. Matilda Fernandes for the purpose of cultivation

and the defendant no.1 used to pay rent in kind. The

plaintiffs further averred that on 26/9/1995 he had been to

the suit paddy field and he saw that a pucca house was

constructed in the suit paddy field and the internal work

was going on. He questioned the defendant no.1 about the

construction. The plaintiff approached the Sarpanch and

lodged a complaint but the Sarpanch did not take any

action. The plaintiff filed the suit seeking reliefs of

mandatory and permanent injunction against the

defendants. The defendants contested the suit. The

defendants did not dispute that they had carried out the

construction in the suit paddy field but their defence was

that since they were tenants of the paddy field they were

deemed purchasers and as such, the plaintiffs did not have

any right or locus standi to file the suit claiming the reliefs

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of mandatory and permanent injunction. Further it was the

case of the defendants that the construction was carried out

long time back.

4.

On the basis of the pleadings of the parties, the

following issues were framed:

i) Does the plaintiff prove plaintiff prove that the

defendant has raised an illegal construction of a

house in the suit property?

ii) Does the defendant prove that the house was always

existing for a long time?

iii) What relief? What order?

The plaintiffs examined two witnesses. The

defendants did not lead any evidence. The trial Court

answered the issued against the defendants and decreed the

suit.

5.

The defendants preferred Regular civil Appeal

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No.70 of 2000 to the District Court at Panaji which was

made over to the Court of Additional District Judge at

Mapusa. The lower Appellate Court framed the following

points for determination:

i) Whether the suit should fail for not claiming

possession of the suit paddy field?

ii) Whether the mandatory injunction granted by the

trial Court is sustainable in law?

6.

The Lower Appellate Court dismissed the

appeal holding ownership of the paddy field did not vest in

the defendants until the purchase proceedin