SURESH RAMSINGH GURKHA Vs. DURGARAM SHANKAR NAIK

JUDGEMENT

(1.) HEARD Shri Rohit Bras De Sa, learned Counsel appearing for the Appellants and Shri S. D. Lotlikar, learned Senior Counsel appearing for the SA -25 -10 respondent. The above Second Appeal challenges the Judgments passed by the Courts below whereby the suit filed by the Respondent for mandatory injunction/demolition of the encroached construction by the Appellants within the set back area came to be decreed.

(2.) BRIEFLY , the facts of the case are that the Respondent, who is the Plaintiff in the suit, claimed to be the owner in possession of the property bearing survey no. 20/38 and situated in the Village of Ponda and that the plot of the Respondent is bounded towards the east and west by the property bearing survey no. 20/1 of Ponda Taluka, towards the north partly by the property bearing survey no. 20/1, small gutter and property of Almeida School and on the south by public road and plot of one Pandit. It is further their case that in their property, the Respondent has a residential house, a garage and two store rooms in his plot and that towards the northern side corner of the property of the Respondent, there is a small house of the Appellants at the distance of about four metres from the boundary of the plot of the Respondent. It is further their case that the Appellants have filed an application for registration as a Mundkar in respect of the dwelling house occupied by them before the learned Mamlatdar of Ponda against the Respondent and one Gurudatta Talaulikar under Section 6(3) and Section 7 of the Mundkar Act and, such proceedings are still pending. It is further their case that when the Respondent visited his house in the said property in November, 1994, he noticed that the Appellants have stored construction material near their house and already dug trenches. It is further his case that the said activities of the new construction are being done hurriedly. It is further his contention that he made inquiries about the said construction and that he came to know that no licence was issued to the Appellants to carry out the said work. It is further his case that the Appellants are doing illegal construction so as to claim more area of the Respondent and to show that the construction was old and that such construction was being done towards the house of the Respondent and was partly completed. The Respondent also expressed apprehension about keeping windows and doors towards the house of the Respondent. It is further his case that the pucca house has been converted and it is partly outside his plot. The Respondent also contend that excavation work was going on near the hut and, as such, a complaint was lodged to the Ponda Municipal Council and, as such, the Respondent filed the suit for a relief of permanent injunction and mandatory injunction.

(3.) THE written statement came to be filed by the Respondent despite the contention of the Appellants and also raised the point of limitation to introduce to the relief in the counter claim. They have also denied that any illegal construction has been done by the Respondent and claimed that they had obtained a permission from the Ponda Municipal Council to put up the construction. Thereafter, the Respondent filed an application for amendment at para 11(a) giving facts of encroachment after filing of the suit to which additional written statements came to be filed by the Appellants.