1 SA158-2012

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO.158 OF 2012

Benedito Souza also known as

Benedito D'souza, son of Andre

D'Souza also known as Andre Souza,

aged 71, r/o H.No.227, Borla, Macasana,

Salcete, Goa. 403 709

represented by power of attorney

holder Mr. Dinesh D'Souza.

…

Appellant

Versus

1.Caetano Rosario Estibeiro,

s/o Francisco Estibeiro,

aged about 45,

c/o Mrs. Amalia Fernandes Souza,

Tumbabhat, Macasana,

Salcete, Goa 403 709

2.Fatima Estibeiro,

wife of the Caetano Rosario Estibeiro,

aged about 39,

c/o Mrs. Amalia Fernandes Souza,

Tumbabhat, Macasana, Salcete Goa 403 709

3.Panchayat of Macasana,

Macasana, Salcete, Goa 403 709

…. Respondents

Mr. Nitin Sardessai, Senior Advocate with Ms. Gautami Kamat,

Advocate for the Appellant.

Mr. R. G. Ramani, Senior Advocate with Mr. Sahil Sardessai, Advocate

for Respondent Nos.1 and 2.

Coram: M. S. SONAK, J

Reserved on: 11^th February 2021

Pronounced on: 17^th February 2021

2 SA158-2012

JUDGMENT

Heard Mr. N. Sardessai, learned Senior Advocate with Ms.

Gautami Kamat for the Appellant and Mr. R. G. Ramani, learned Senior

Advocate with Mr. S. Sardessai for Respondent Nos. 1 and 2.

2.

Having regard to the orders made on 13

th December 2012

and 5

th February 2021, this Second Appeal involves the following

substantial questions of law :-

(i) Whether the impugned order suffers from non-application

of mind in as much as it holds that the Respondents' structure

could not be ordered to be demolished for lack of details in the

plaint and the report, when the pleadings on record complied

with the provisions of Order VII Rule 3 Code of Civil Procedure

and the evidence on record clearly demonstrated that the set back

line is a straight line from the common boundary, thus evidencing

the portion to be demolished ?

(ii) Whether the appellant who is the neighbour of the

respondent can get a relief of permanent/mandatory injunction by

merely establishing that there is breach of the requisite set backs

under Section 38 and 39 of the Specific Relief Act ?

(iii)Whether the Learned Appellate Court committed gross

illegality by reversing the Decree for mandatory injunction, as

granted by the Learned Trial Court, merely on grounds of delay

and laches in the absence of any finding that the delay had led to

inviting the bar of limitation ?

(iv)Whether an adjoining owner has a right to seek demolition

of the disputed structure on the ground that it has no licence

from the statutory Authority ?

3 SA158-2012

3.

The Appellant is the original Plaintiff and the Respondents

are the original Defendants in Regular Civil Suit No. 153/2004/II

instituted in the Court of 2

nd Additional Civil Judge Senior Division at

Margao seeking the following substantive reliefs:

(a) By way of a decree of permanent injunction, the

defendant 1 and 2, his family members, agents and

servants, or whosoever be restrained from carrying out any

construction within 3 mts. setback area of the said property

of the Plaintiff and his family;

(b) The defendants 1, 2 and 3 be directed to demolish the

part of the house as shown in the plan of the engineer

attached and marked as inadequate setback it being illegal

due to not keeping the said proper setback, within ten (10)

days. Failure to comply with the same within the stipulated

time of ten days, the Collector as executive authority of the

district be ordered to demolish the same.

4.

The Defendants filed their written statement denying the

case pleaded by Plaintiff. Based on the pleadings, the learned Trial Judge

framed and answered the following issues:

ISSUES

Findings

1

Whether the Plaintiff proves that the

Defendants has carried out illegal

construction within the 3 mts., set

back area of the suit property

belonging to the Plaintiff and his

family ?

Affirmative

2

Whether the Plaintiff proves that he is

entitled for