MRS. TULSI RAYU GAUNS, MAJOR, INDIAN NATIONAL, HOUSEWIFE, RESIDING BEHIND BELEM CHURCH, BAMBOLIM, TISWADI - GOA Vs. MR. SONU VITHU GAUNS, MAJOR, INDIAN NATIONAL, LANDLORD, RESIDING AT H. NO. 53, BEHIND BELEM CHURCH, BAMBOLIM, TISWADI - GOA,

JUDGEMENT

(1.) HEARD Shri A. D. Bhobe, learned Counsel appearing for the Appellant and Shri R. G. Ramani, learned Counsel appearing for the Respondents. The above Appeal challenges the Order passed by the learned Adhoc District Judge, FTC, Panaji, in Civil Suit no. 9/2009, dated 09.04.2009, whereby an application for temporary injunction filed by the Respondent in the said suit was allowed and pending the hearing and final disposal of the suit, the Appellant with her family members, agents, servants or representatives, were temporarily restrained from carrying out any construction activity/further construction activities in the suit property and the Respondent nos. 2 and 4 are temporarily restrained from in any manner regularising the illegal construction carried out by the Appellants in the place of the suit house.

(2.) SHRI Bhobe, learned Counsel appearing for the Appellants, has assailed the impugned Order essentially on the ground that the Appellants were occupying the house in the suit property surveyed under no. 2/3 of Village of Curca, Bambolim, and that after obtaining the necessary permission from the Village Panchayat/Respondent no.2 herein for the purpose of repairing the said structure, the Appellants were in the process of carrying out such activity. Learned Counsel further pointed out that at the time of carrying out the said repairs, the structure itself collapsed which required the Appellants to re -construct the walls of the suit structure. Learned Counsel further pointed out that the construction which has been put up is within the plinth area which was existing earlier in the suit property. Learned Counsel further pointed out that the Appellants are the owners of the suit construction as, according to him, the construction was put up by his ancestors. Learned Counsel has further taken me through the impugned Order and pointed out that the learned Judge has erroneously granted the application for temporary injunction and further restrained the Appellants from seeking regularisation of the suit structure without any application of mind. Learned Counsel as such pointed out that it is well settled that a party cannot be restrained from taking measures available in law if they are so entitled and by passing the impugned Order, the learned Judge has restrained the Appellants to take re -course to law for the purpose of seeking regularisation within the provisions of the Panchayat Raj Act. Learned Counsel further pointed out that at that time, by an Order dated 28.10.2010, a statement came to be recorded on behalf of the Appellants upon instructions that the Appellants shall not carry out any further construction beyond the existing plinth area as on date of the house of the Appellants. Learned Counsel as such submits that without prejudice to his rights and contentions, the Appellants shall not carry out any construction or extend the existing plinth area at the site during the pendency of the suit.

(3.) HAVING heard the learned Counsel and on perusal of the record, and going through the plaint filed by the Respondent no.1, I find that the Respondent no.1 has admitted at para 6 that the suit house exists in the suit property bearing house no. 58 and that the same was being occupied by the Appellants along with his family members. The further allegations in para 6 of the plaint is that in the first week of January, 2009, the Appellant and her family members began demolishing the internal walls of the suit house. These statements in the plaint, prima facie, establish that the Respondent no.1 does not dispute the occupation of the Appellant in the suit house and that the walls of such house were being demolished by the Appellant for repairs/re -construction. The dispute which is raised by the Respondents is with regard to the extension of the plinth area. The learned Judge whilst passing the impugned Order, has pointed out that the Bailiff of the Court had visited the suit property and found that the plinth area of the suit house admeasuring an area of 124.44 square metres. Considering the said aspect, the learned Counsel appearing for the Respondent no.1, was unable to pointed out any plan on record to establish the extension alleged to have been carried out by the Appellants to the existing plinth area. Shri Gonsalves, in the report has only mentioned that the area of the plinth as shown in the Survey Records admeasuring an area of 116 square metres approximately. But, however, considering the report of the Bailiff that the area measured by the Bailiff is 124.11 square metres, prima facie, the area shown by Shri Gonsalves, cannot be accepted. Be that as it may, considering the contention of Shri Bhobe, learned Counsel appearing for the Appellant, to the effect that the Appellant shall not carry out any further construction in the suit property, I find that the first apart of the impugned Order directing the Appellant not to carry out any further construction in the suit property does not call for any interference. Hence, the first part of the Order whereby the Appellant, her family members, agents, servants and representatives are restrained from carrying out any further construction activity in the suit property stands confirmed.