IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 637 OF 2014

SHRI. SURYAKANT ANANT MAVJEKAR AND

4 ORS.

... Petitioner

Versus

SHRI BALCHANDRA SAGUN G. MAVJEKAR.

... Respondent

Mr.S. G. Dessai, Senior Advocate with Mr. Shirin V. Naik, Advocate

for the Petitioners.

Mr. S.D. Lotlikar, Senior Advocate with Ms. S. Naik, Advocate for

the Respondent.

Coram:- B. P. DHARMADHIKARI, J.

Date:-

10th October, 2014

ORAL ORDER:

Heard learned Senior Advocate Mr. Desai for the

petitioners/original plaintiffs and learned Senior Advocate Mr.

Lotlikar for the respondent/original defendant.

2. The petitioners has filed Regular Civil Suit No.43/2014/C for

restraining the defendant from carrying out the construction of their

house in suit property and within the setback area of 3 metres from

boundary of the suit property and from interfering in any manner

whatsoever with rights of the plaintiffs over the suit property. They

also sought a temporary injunction. The Trial Court has initially

granted ex parte injunction and confirmed it vide its order dated

7/7/2014. The trial Court found that there was no gap whatsoever left

between the house of the plaintiffs and the defendant. It also noted

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that the provisions of Section 7A which enable a mundkar to

reconstruct his house was a restriction on the rights of the bhatkar

and could not have been used by one mundkar against another

mundkar. It further found that the defendant has encroached within

the boundary of existing house of plaintiffs to the extent of 0.25

metres. It has also noted that the earlier house has been demolished

and construction of new house is being carried out. It noted that as

per the report of B.D.O, who went to inspect the property of the

defendant for granting permission to repair, the plinth area of

existing/old house was 88.35 sq.metres. while as per the map of

proposed construction it was shown to be 163.68 sq.metres. It is in

this background that it found that the RCC columns have been dug

leaving no gap between the house of the plaintiffs and the defendant.

It, therefore, proceeded to grant temporary injunction and restrain

the defendant from carrying out the construction on suit property and

within the setback area of 3 metres from the boundary of the suit

property.

3. The defendant filed Misc. Civil Appeal no.82/2014 under Order

43 rule 1(r) C.P.C and District Judge-II at Panaji has allowed that

appeal on 24/9/2014. It is this order which is questioned by the

petitioners/plaintiffs before this Court.

4. Senior Advocate, Mr. Dessai submits that scope of interference

in such appeal against a discretionary order is well settled right from

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the judgment in the case of "Wander Ltd. and another Vs. Antox

India P. Ltd" as reported at 1990 (Supp) Supreme Court Cases 727

and that scope has been overlooked by the learned Appellate Court.

He contents that the pleadings in the plaint have not been correctly

appreciated and a touching construction has been permitted to come

up. He has also invited attention of the Court to the plan/map and

photograph on record. According to him what is being carried out is

not repairs but construction of a new house. He submits that if

construction of a new house is to be effected, building bylaws apply

and therefore, it was necessary for the respondent/defendant to leave

setbacks.

5. He contends that setback has not been left and previous open

space between two house which was about half a metre has now been

reduced to quarter of a metre. He contends that the Appellate Court

has not paid attention to question whether it was repairs or

reconstruction and left the dispute about cancellation of permission to

repair for its resolution between Panchayat and the respondent. He,

therefore, submits that on relevant grounds the Appellate Court has

interfered and reversed the order of the trial Court which was

otherwise legal and valid.

6. Mr. Lotlikar on the other hand submits that t