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IN THE HIGH COURT OF BOMBAY AT GOA.

APPEAL FROM ORDER NO.43 OF 2016.

1.

Mr. Ramesh G. Kandolkar,

son of G. Kandolkar,

about 74 years of age,

Indian National,

r/o H.No.462,

Candolim, Bardez, Goa.

1(a) Shri Deepak Ramesh Kandolkar,

son of deceased

Major of age,

r/o H.No.463 A,

Candolim, Bardez, Goa.

(Already on second as Appellant No.2.

1(b) Shri Govind Ramesh Kandolkar,

Son of deceased

Major of age,

r/o H.No.463 A,

Candolim, Bardez, Goa.

1(c) Shri Dilip Ramesh Kandolkar

Son of deceased

Major of age,

r/o H.No.462,

Candolim, Bardez, Goa.

1(d) Mrs. Usha Uday Wadkar

Daughter of the deceased

Major of age,

r/o H.No.63, Gokulwadi,

Sanquelim Goa.

1(e)

Mrs. Karishma Vasudev Goveakar

Daughter of the deceased,

Major of age,

r/o H.No.693,

r/o Mayem, Ardhwada,

Bicholim – Goa.

2

Mr. Deepak Ramesh Kandolkar,

(wrongly arrayed as Govind Ramesh Kandolkar)

2

son of Ramesh Kandolkar,

about 43 years of age,

Indian National,

r/o H.No.463 A,

Candolim, Bardez,

Goa.

Appellants/Defendants.

Versus

1.

Mr. Nandlak Khemka,

major of age, Indian National,

r/o A-6, Kalindi, New Delhi

through his attorney,

Mr. Thomas Mathew

s/o K.V.Thomsa,

major of age, Indian National,

r/o 31, BDS Garden,

Bangalore.

Respondent/plaintiff

2. Village Panchayat of Candolim,

Through its Secretary,

Having office at the Panchayat Ghar,

Candolim, Bardez,

Goa.

Respondents/Def.no.3.

….

Shri A.D.Bhobe with Ms. S.Bhobe, Advocates for the

appellants.

Shri Carlos A.Ferreira, Advocate for respondent no.1.

CORAM : PRITHVIRAJ K. CHAVAN, J.

RESERVED ON :28/06/2017.

PRONOUNCED ON :10/07/2017.

JUDGMENT:

1.

Feeling aggrieved with an order dated 22^nd December,

2015 passed by the learned Senior Civil Judge, Mapusa, in Special

Civil Suit No.18/2013/C, granting the application for temporary

injunction, the original defendants have preferred this appeal

under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908.

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2.

The parties shall be referred to as plaintiff and

defendants as per their original status in the trial Court for the

sake of convenience.

3.

The plaintiff is the owner of the property known as,

“WADI” bearing Survey no.136/14 of village Candolim

admeasuring 5300 sq. mtrs. The plaintiff appears to have

purchased the same, vide Sale Deed dated 13^th June, 1995, for

construction of a residential bungalow. The defendants are the

adjoining owners of an open plot of land bearing no.136/13 where

there is residential bungalow.

4.

The plaintiff contends that he is the resident of New

Delhi and, therefore, was not in a position to visit his plot

frequently. The defendants took disadvantage of his absence

and encroached upon his land where they have started illegal

construction with an utmost disregard to the Byelaws, Rules and

Regulations of governing the construction of building sans license

from defendant no.3. There was no approval from the North Goa

Planning Authority.

5.

The plaintiff filed a complaint with defendant no.3 on

28^th July, 2008. It is contended that since the defendants are

influential and therefore, perhaps no action was initiated against

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them by defendant no.3.

6.

The plaintiff thereafter filed Panchayat Petition

no.55/2010 before the Deputy Director of Panchayats under

Section 66 (5) of the Goa Panchayat Raj Act, 1994. Pursuant to

the same, the Block Development Officer conducted site

inspection and submitted his report dated 2^nd November, 2009.

7.

The plaintiff contends that the defendants have

carried out the construction of an illegal garage on the north side

of the suit plot. The defendants have also constructed

unauthorised house without maintaining the required setback

which is referred to as “suit structure no.1”. According to the

plaintiff, the structure was erected without obtaining the

construction license from the Competent Authority. It is