AURA FERNANDES Vs. JOAO JOSE NEPOMOCENO COELHO

JUDGEMENT

(1.) Heard Mr. M. Fernandes, learned counsel appearing for the appellant and Mr. C.A. Coutinho, learned counsel appearing for the respondent Nos. 1(a), 1(d)(i), (ii) and 2. The above appeal came to be admitted by order dated 16.02.2012 on the following substantial question of law:

(2.) Mr. Fernandes, learned counsel appearing for the appellant has taken me through the judgment of the learned Lower Appellate Court and pointed out that the learned Judge besides directing the demolition of the suit structures as mentioned in para 4 of the operative part of the impugned judgment and granting a permanent injunction restraining the appellant from interfering with the suit land except the mundkarial area, further directed the appellant to pay to the respondents a sum of Rs. 500/- per month as damages from the date of the filing of the suit until the suit structures shown in red and blue colour in the plan at Exhibit-A (Exhibit 37) are demolished. The learned counsel further pointed out that the substantial question of law framed by this Court is to challenge the said relief granted by the learned Lower Appellate Court at para 6. The learned counsel has thereafter taken me through the Order 20 Rule 12 of C.P.C. and pointed out that such adjudication of damages can be directed even after the decree is passed. The learned counsel as such points out that unless there is an inquiry with that regard the question of directing the payment of the said amount would not arise. The learned counsel further submits that the respondents have not led any evidence to substantiate their claim of damages.

(3.) On the other hand. Mr. C.A. Coutinho, learned counsel appearing for the respondents has supported the impugned judgment and pointed out that the learned Judge has rightly directed the demolition of the encroachment carried out by the appellant in the immovable property belonging to the respondents. The learned counsel further pointed out that the appellant has no right to carry out any such encroachment or interfere with the remaining portion of the property. The learned counsel further pointed out that once the Court has come to the conclusion that the appellant has been in illegal occupation of the immovable property, the Court can grant mesne profit in terms of Order 20 Rule 12 of C.P.C. The learned counsel fairly concedes that such amount can be ordered to be paid after an inquiry is held under Order 20 Rule 12 of C.P.C. even after the decree of possession is ordered.