JOAO JOAQUIM FILIPE ALFONSO Vs. PRADEEP GAJANAN NAIK

JUDGEMENT

(1.) THIS second appeal challenges the concurrent findings perverse inasmuch as they are not supported by the pleadings of the parties and the evidence produced by them during the trial. The orders impugned herein are the judgment and order dated 20th December, 2002 of the trial Court dismissing the suit filed by the appellants and the judgment and order dated 5th January, 2007 of the first appellate Court dismissing the appeal. The suit filed by the appellants was for injunction simpliciter in the following terms: -

(2.) A glance at the plaint is sufficient to show that the allegations made against the respondent are absolutely vague. The averments at para 8 of the plaint are devoid of necessary particulars. The act of interferences alleged is insistence upon completing construction of the building and selling the shops and flats to third parties. For the first act of interference of insistence with completing the construction it was incumbent upon the appellants to set out in the plaint the extent of construction carried out by the defendant as on the date of filing of the suit and the specific activity undertaken by the respondent for completion of construction. The fact that the respondent was carrying on construction under an agreement of sale would mean that he was in physical possession of the property agreed to be sold to him. The plaint does not disclose that at any point of time after termination of the agreement of sale physical possession of the property was returned to the appellants. The second act of interference, of selling the premises in the building is also vague inasmuch as it does not give particulars of any sale done after termination of the contract.

(3.) THE evidence on behalf of the appellants was of appellant No. 2 who in her deposition claimed that the respondent had repaid the loan only to the extent of Rs. 80,000/ -. She claimed that the balance amount of Rs. 70,000/ - was paid by the appellants. She however was unable to produce any documentary evidence in support of the claim of payment by the appellants. As regards the construction evidence of appellant No. 2 was that the area of the shop given by the respondent to the appellants was less than 21 sq. meters. According to her, the area was got measured by her through her Advocate Shri Barreto. She further admitted that three of the shops put up by the respondent are provided with shutters including her shop.