IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 59 OF 2012

LAXMAN VISHRAM KANDOLKAR AND ANR.,

REP. BY THEIR POA MR. BHARAT L.

KANDOLKAR

... Appellant

Versus

M/S. RAJ BUILDERS THROUGH ITS

PROPRIETOR MR. RUI A GAMA AND 3

ORS.,

... Respondents

Mr. Nigel Da Costa Frias, Advocate for the Appellants.

Mr. S. Karpe, Advocate for the Respondents.

Coram:- F. M. REIS, J.

Date:-

13th December, 2012

ORAL ORDER

Heard Shri Nigel Da Costa Frias, learned Counsel appearing for

the Appellants and Shri S. Karpe, learned Counsel appearing for the

Respondents.

2. The above Second Appeal challenges the Judgments passed by

the Courts below whereby the suit filed by the Petitioners was partly

decreed and the Respondents were directed to give an access to the

Appellants through the property surveyed under no.128/4 and 128/6

on the southern side of property surveyed under no. 128/4 and 128/6.

The remaining prayer of the Appellant to restore the demolished

structure came to be rejected. Besides the claim, on account of

damages was also decreed in favour of the Appellants herein.

3. Shri Nigel Da Costa Frias, learned Counsel appearing for the

Appellants, has assailed the impugned Judgment essentially on the

ground that though an access has been reserved in favour of the

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Appellants, nevertheless, the permanent injunction sought by the

Appellants has not been granted by the Courts below. Learned

Counsel further pointed out that though the Appellants have been

reserved a right of access, nevertheless not granting such permanent

injunction would lead to multiplicity of proceedings as, according to

him, any interference by the Respondents, would force the Appellants

to file a fresh suit. Learned Counsel further pointed out that a

structure which belongs to the Appellants was illegally demolished

by the Respondents and, consequently, the Courts below were not

justified to refuse the relief of restoration of the said structure.

Learned Counsel further pointed out that once the Court came to the

conclusion that the disputed structure belonged to the Appellants, the

question of refusing such relief to the Appellants was not justified.

Learned Counsel has also raised a grievance with regard to the

quantum of damages as, according to him, the learned Trial Judge

had awarded damages to the tune of Rs.70,000/- and which came to

be reduced by the Lower Appellate Court to a sum of Rs.40,000/-

without any reasons. Learned Counsel has taken me through the

impugned Judgments as well as the material on record and pointed

out that there are substantial questions of law which arise in the

present Appeal which require consideration by this Court.

4. On the other hand, Shri Karpe, learned Counsel appearing for the

Respondents, has supported the impugned Judgments. Learned

Counsel further pointed out that once the Respondents have been

directed to provide an access as per the impugned Judgments, the

alleged apprehension of the Appellants to the effect that the

Respondents may further interfere in such access is totally without

any foundation. Learned Counsel further pointed out that according

to the Respondents, the access as directed in the impugned Judgment

is available at the site. The learned Counsel further pointed out that

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the alleged disputed structure was in a dilapidated condition and was

only a temporary structure and, as such, the amount of compensation

directed by the Courts below is justified. The learned Counsel

further pointed out that with regard to the relief sought by the

Appellants for restoration of the demolished structure, the Courts

below have rightly fixed the compensation and, consequently, the

question of any interference in the impugned Judgment on that count

would not arise. Learned Counsel further pointed out that there are

no substantial questions of law which arise in the present Appeal and,

consequently, the Appeal deserves to be rejected.

5. I have considered the submissions of the learned Cou