Advocates:
['ADV SHIVAN DESAI', '', 'ADV JATIN RAMAIYA', 'ADV BHANDANKER VARUN PRADEEP', 'ADV KETAKI L PEDNEKAR', 'ADV ANIROODH C SARDESAI', 'ADV COTA VIEGAS MARIA CARMEL TERESA DE JESUS', 'ADV GAURISH N AGNI', '', 'ADV SUNAINA CHODANKAR', 'ADV RUCHIKA MISHRA', 'ADV TANAI GAWAS', 'ADV SHUBHAM S ANERKER']

11-SA-87-2019.DOC

Suchitra

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO.87/2019

1. SHRI YOGIRAJ TULASKAR,

married, major of age, presently residing

at C/o. Shri Vasudev Bablo Tulaskar,

PistaWada, Nanora, Latambarcem,

Bicholim, Goa.

2. SMT. NUTAN YOGIRAJ

TULASKAR, wife of Yogiraj Tulaskar,

major of age, presently at PisteWada,

Nanora, Latambarcem, Bicholim, Goa.

… APPELLANTS

Versus

SMT.

INDIRA

RAMCHANDRA

MARATHE, widow of Shri Ramchandra

Marathe, major of age, housewife, resident

of House No.903, Nanora, Latambarcem,

Taluka Bicholim, Goa represented by

power of attorney, Shri Jayant Vishnu

Marathe, married, Priest, resident of

House No.468/2, Bhoutawada, Assagao,

Bardez Goa.

… RESPONDENT

Mr. Shivan Desai, Advocate for the Appellants.

Mr. Gaurish Agni, Advocate for the Respondent.

CORAM:

M. S. SONAK, J.

DATED:

6^th October 2022

Page 1 of 7

6^th October 2022

11-SA-87-2019.DOC

ORAL 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

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6^th October 2022

11-SA-87-2019.DOC

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

Page 3 of 7

6^th October 2022

11-SA-87-2019.DOC

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 reco