K DEVDAS PAI Vs. PRAKASH YESHWANT MAINKAR

JUDGEMENT

(1.) THIS second appeal challenged the judgment passed by the Courts below whereby the civil suit filed by the appellant came to be dismissed. The suit was filed by the appellants on the ground that there is a property at St. Inez, Panaji bearing survey no.77 of P.T. Sheet no.78 admeasuring 4040 square metres which belongs to the respondents no.2 and 3. It is the contention of the appellants that by agreement dated 31.3.1979, the respondent no.1 agreed to purchase th suit property from the respondent no.2 and 3 for development and construction of a building. Various agreements were entered into by the Respondent no.1 in respect of the flats constructed in the building put up in the said property. It is further his contention that the project was commenced without due permission from the Panaji Municipal Council and that the respondent no.1 was supposed to deliver the possession of the flats within 18 months and obtain No Objection Certificate from the Municipal Council. It is further their contention that the Respondent no.1 had modified the plans without sanction and that the appellants had performed their part of the agreement and always were ready to perform their part but the respondent no.1 had committed breach of the said agreement. The Appellants further contend that the Respondent no.1 has exceeded the coverage and violated the express conditions of the licence by not providing puca approach road etc. In view of the said breaches and violations committed by the respondent no.1, as stated in the plaint the suit was filed to direct the respondent no.1 to construct the 'Pucca road duly tarred giving access to the building in the suitproperty and also construct water drains in the suit property to enable the free flow of drain water and the rain water. The appellants also sought to restrain the respondents from carrying out construction of any further building in the suit property.

(2.) THE Respondent no.1 filed the written statement and disputed the claim of the appellants. The Respondent no.1 admits that he has agreed to sell flats to different persons including the Appellants. It is his contention that the appellants were defaulters and did not pay the installments as agreed and that they had forcibly entered into possession of the flats even before the possession was made over by the respondent no.1. He further stated that 12 flats in the said project still belongs to the respondent no.1 as the project is not complete and they have to be constructed. As such, it is his contention that the suit has no basis and deserves to be dismissed. After the issues were framed and findings were recored the learned trial Judge by judgment dated 6.8.1999 dismissed the suit filed by the appellant. Being aggrieved by the said judgment and decree, an appeal was preferred by the appellant before the learned Additional District Judge at Panaji, being Regular Civil Appeal no.87/99, which by judgment dated 20.9.2000 came to be dismissed. Being aggrieved by the judgments passed by the courts below, the present appeal has been preferred by the appellant. At the time of admitting the above appeal no substantial questions of law had been framed. As such both the learned counsel were called upon to address about the framing of substantial questions of law to be considered in the present appeal. After hearing both the counsel the following substantial questions of law were framed:

(3.) THE learned Additional District Judge while disposing of R.C.A No.87/99 has confirmed the said findings of the learned trial Judge and held that the appellant has miserably failed to establish that there were any deviations in the approved plans made by the respondent no.1. The learned Appellate Judge further came to the conclusion that the appellants have failed to establish their case and therefore dismissed the said appeal. The learned Judge also held that the appeal against the Municipal Council was not maintainable. The learned Judge further found that the Appellate himself had sought leave to file affidavit evidence. The learned Judge further held that the affidavit traversed beyond the pleadings. No evidence was brought by the Appellant to demonstrate any interference in the open space. As such, the appeal was dismissed.