The court affirmed the appellants' property rights, restricting the respondent's construction in accordance with municipal regulations.

ORAL JUDGMENT

Heard Mr. S. Karpe, learned Counsel appearing for the Appellants.

None for the Respondents, though duly served.

2. The above Appeal came to be admitted on 11.12.2006 on the following substantial questions of law :

(i) Whether after holding that there was suppression of fact by the respondents while submitting the plans for approval and the respondent no.1, had presented the plan to the then Municipal Council of Panaji after demolishing the kitchen portion of the hut of the appellants, the 1st Appellate Court could have held that the respondent no.1 was entitled to put up the construction pursuant to the said licence granted in favour of respondent no.1 was not in violation of any rules, byelaws or laws.

(ii) Whether he finding that clause 32 I(b) of the Panjim Municipal Council Building Bylaws Regulation 1975, which provides for minimum size of the plot are applicable only where subdivision of plot is effected and whether the regulation pertaining to maintenance of 3 mts. setback. Rule 32 I (e) (iii) which provides for 3 mts. setback from the plot boundary could be relaxed especially in a case where admittedly the respondent no.1 was permitted to take light and air form that side ?

3. Mr. S. Karpe, learned Counsel appearing for the Appellants has taken me through the Judgments passed by the learned Trial Judge whereby the Suit filed by the Appellants was partly Decree in terms of prayer (a) and a(a) by Judgment dated 30.11.2001. The learned Counsel further submits that the Judgment passed by the Trial Judge came to be challenged by the Respondents before the Lower Appellate Court which came to be disposed of by Judgment and Decree dated 11.08.2005 whereby the Appeal was partly allowed and the Decree passed by the learned Trial Judge came to be modified where upon the relief a(a) was set aside and the Respondents, their servants, their agents, were permanently restrained from doing any construction or performing any other act so as to effect the right of light and air of the Appellants from the set back area to the south of the proposed construction. The Respondents were also directed to maintain a free unobstructed access of 1.5 metres on the western side of the proposed construction under the extended first floor for the use of the Appellants as an access from the property surveyed under chalta no. 17 up to the road on the northern side of chalta no. 18. The Cross Objections filed by the Appellants were also granted thereby directing the Respondents to restore the kitchen room of the Appellants by constructing the same with tin sheets with dimension as shown in the Survey Plan.

4. Mr. S. Karpe, learned Counsel appearing for the Appellants, submits that the Appellants are the owners in possession of the property, inter alia, bearing chalta no. 17 of P.T. Sheet no. 83. Learned Counsel further submitted that the property of the Respondents is surveyed under no. 18 of P. T. Sheet no. 83. Learned Counsel has thereafter taken me through the City Survey Plan to point out that the eastern boundary of the property surveyed under chalta no. 17 is of irregular shape whereas the plans which were approved by the Respondents were showing a straight boundary separating the boundary of the Appellants and the Respondents on the eastern side of the property surveyed under chalta no. 17. Learned Counsel further pointed out that the fact finding Courts have come to the conclusion that the portion of the property protruding on the eastern side of the property surveyed under chalta no. 17 of P. T. Sheet no. 83 were erroneously included in the property surveyed under chalta no. 18 belonging to the Respondents. Learned Counsel further submits that though the learned Judge had come to such conclusion th