SHANKAR LAXIMAN KANOLKAR Vs. PRABHAKAR NAGUESH AZGAONKAR

JUDGEMENT

(1.) THE above appeal challenges the judgment and decree dated 5/01/2005 passed by the learned Additional District Judge, Mapusa in Civil Suit No. 37/2004. The parties shall be referred to in the manner they so appear in the cause title of the impugned judgment.

(2.) THE plaintiffs filed the suit on the ground that there is a property known as Condulvao alias Condule vare kadil shir also knwon as Canulvadeadi surveyed under no. 510/13 of village Latambarcem of Bicholim Taluka, wherein the ancestral house of the plaintiffs bearing no. 14 and 15 is located. It is further their case that the ancestral dwelling house is situated in the said property since last more than 100 years and since then they have been enjoying the said property exclusively and that by virtue of the sale deed executed and registered on 22/11/1980, the plaintiff no. 1 purchased the said property from its original owner and since then they possessed and enjoyed the said property. It is further their case that the suit property is bounded towards the east by survey no. 510/2, on the west by way, on the north by compound wall between survey no. 510/12 and towards the south by foot way as shown in the survey plan. It is further their case that the foot way existing towards the southern side of the suit property is a 'palan' kept for the use of the plaintiffs. It is further their case that the defendants nos. 1 & 2, who are against the plaintiffs for reasons known to them instigated some persons and caused them to file a complaint against the plaintiffs before the defendants nos. 3 & 4 alleging that the plaintiffs by encroachment caused blockage to the public road belonging to the defendant no. 3 and situated towards the southern side of the suit property. It is further their case that there is no public road or panchayat road existing on the southern side of the suit property. It is further their case that show cause notice was issued to them and the plaintiffs explained the correct possession in their reply to the show cause notice. It is further their case that the defendants nos. 1,2 & 3 are conspiring to demolish the fencing around the plantation of the plaintiffs and they have strong apprehension that they shall carry out the said demolition of the said fencing at any moment. They accordingly filed the suit praying inter alia for a declaration that it be declared that the plaintiffs are in possession and enjoyment of the property inside the live wooden fencing as the owners.

(3.) AFTER framing of issues and recording of evidence, the learned Judge by judgment and decree dated 5/01/2005 dismissed the suit filed by the plaintiffs and decreed the counter claim. It was declared that the suit road is 3 metres wide and that it is a public road. It was further declared that defendants have a right of way to the suit road. The plaintiffs were directed to remove the fencing and construction put up by them on the suit road. The plaintiffs were also restrained from obstructing the suit way or from doing any construction on it. Being aggrieved by the said judgment, the plaintiffs have filed the present appeal.