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IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO.114 OF 2003

Shri Sadashiv D. Naik,

Major, married, agriculturist,

Resident of House No. 62,

Varchawada, Arambol,

Pernem, Goa.

….....

Appellant

( original

plaintiff)

V e r s u s

Shri Umesh Krishna Sawanth,

Major in age, service,

R/o H. No. not known,

Varchawada, Arambol,

Pernem, Goa.

…....

Respondent

(original

defendant)

Shri S. D. Lotlikar, Senior Advocate with Shri K. B.

Surjuse, Advocate for the Appellant.

Shri Shivan Dessai, Advocate for the Respondent.

CORAM: U. V. BAKRE, J.

RESERVED ON: 03 /8/2012

PRONOUNCED ON: 31/8/2012.

J U D G M E N T:

This is plaintiff 's Second Appeal.

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2.

The plaintiff had filed Regular Civil Suit no.

23/1999 against the respondent (defendant) for permanent

injunction to restrain the defendant, his agents, servants, etc.

from interfering with and doing any illegal construction of

house in the suit paddy field and for mandatory injunction

directing the defendant to fill the trenches and to demolish

any construction done in the suit paddy field during the

pendency of the suit and to restore the land to its original

condition.

3.

It was alleged by the plaintiff that he is a co-

tenant in possession of the suit paddy field known as

“Karpan Moli” bearing survey no. 307/10 situated in the

village of Arambol at Varcha Wada and his name is recorded

in the tenant's column of Form No. I and XIV as co-tenant.

By virtue of Fifth Amendment to the Goa, Daman and Diu

Agricultural Tenancy Act, 1964 (Agricultural tenancy Act),

he became the deemed purchaser of the suit paddy field

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along with other co-tenants. Since the defendant started

construction of a house in the suit paddy field without

consent of the plaintiff and without taking permissions from

competent authorities, the plaintiff filed the suit.

4.

The defendant, in the written statement, pleaded

that the suit paddy field has been divided amongst all the

tenants and that the defendant is in possession of a separate

holding in the suit paddy field through his grandfather late

Shri Raghoba Krishna Sawant which is to the knowledge of

the plaintiff and other co-tenants who are also in possession

of separate holdings and nobody has interfered with the said

portion of land which is in possession of the defendant. The

defendant has purchased the said portion which was in his

possession from the landlord Shri Vassudev Deshprahbu by

sale deed dated 28/6/1999 which is duly registered. The said

portion has been purchased by mother of the defendant.

There was an old structure of the defendant in the said

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separate holding and it was constructed after the survey

operation and the defendant wanted to repair the said hut and

make it a permanent construction.

5.

The learned Civil Judge, Junior Division at

Pernem (trial Court), upon analysis of the evidence produced

by the parties, vide the judgment and decree dated

31/12/2001, held that the suit paddy field is divided amongst

all the tenants. The trial Court held that the plaintiff is one of

the tenants in possession of a part of the suit paddy field, but

is not a co-tenant of the entire suit paddy field, since the

unity of possession of the suit paddy field is missing. Since

the construction started by the defendant was not in the

portion in possession of the plaintiff as tenant, the trial Judge

held that the plaintiff had no cause of action to file the suit.

The trial Court further found that by sale deed dated

28/6/1999, (Exhibit D.W.1/A), the defendant has purchased

the area which was previously in his possession as tenant and

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that the construction falls in the said portion. The suit,

therefore, came to be dismissed.

6.

The plaintiff filed Regular Civil Appeal No.

7/2002 against the judgment and decree dated 31/12/2001

passed