IDA PEREIRA Vs. VILLAGE PANCHAYAT OF MERCES

JUDGEMENT

(1.) THE original plaintiffs have filed this appeal challenging the Judgment and Decree passed by the learned Adhoc District Judge, FTC -I, Panaji in Civil Suit No.59/2005 on 30/11/2007, by which the civil suit filed by the plaintiffs praying for declaration, demolition and mandatory injunction is dismissed.

(2.) THE relevant facts are: The plaintiffs filed the civil suit claiming that they are the co -owners of the property bearing survey no 143/1 of village Murda within the jurisdiction of Village Panchayat of Merces and that they are having their residential house bearing H. No. E -155 in the above mentioned land. According to the plaintiffs, the suit property along with the other properties was the subject matter of the Inventory proceedings registered as Case No.8/2000/B in which the order was passed on 1.2.2000 and the plaintiffs were allotted the area of 4266 square metres out of the property which was the subject matter of the Inventory Proceedings. According to the plaintiffs, the defendant no.4 occupied one structure in the suit property and he had filed an application under section 16 (1) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act 1975 (Mundkars Act, 1975 for short) before the Mamlatdar for purchase of the said structure (dwelling house) which is pending. In this application, the defendant no.4 impleaded only plaintiff no.1 as the party. However, on an objection being raised by the plaintiff no.1 regarding non -joinder of the necessary parties, the defendant no.4 had filed an application for amendment to implead the other plaintiffs as parties in those proceedings. According to the plaintiff, the defendant no.4 surreptitiously sanctioned the plan for construction of a toilet vide construction licence bearing no.20/2005 -2006/ dated 3/9/2005. This construction plan was obtained by the defendant no.4 on the basis of no objection certificate issued by the defendant no.5, who claims to be the bhatkar of the suit property. The case of the plaintiffs is that the defendant no.5 has no right to issue the no objection certificate and consequently the construction licence issued by the defendant no.1 in favour of defendant no.4 is illegal and consequently the construction of the toilet admeasuring 4.80 sq.metres is illegal and has to be demolished. In this factual position, the plaintiffs have prayed for decree for declaration that the construction of the toilet by the defendant no.4 is illegal and has to be demolished. The plaintiffs have further prayed for decree for direction to the defendants no.2 and 3 to revoke the approval granted to the defendant no.4 for the proposed construction and for direction to the defendant no.1 to revoke the construction licence granted to the defendant no.4. The plaintiffs have prayed for decree for declaration that the consent given by the defendant no.5 on 4/6/2005 in favour of the defendant no.4 for the construction of the toilet is bad in law. The plaintiffs have prayed for decree for injunction restraining the defendant no.4, his agents, administrators, representatives or any other person acting on their behalf from carrying out any construction on the basis of the licence granted by the defendant no.1 and/or from interfering in the suit property in any manner.

(3.) THE learned Trial Judge proceeded with the trial of the suit and by the impugned judgment concluded that the plaintiffs have failed to prove that the construction undertaken by the defendant no.4 is illegal. The learned trial Judge has further concluded that the plaintiffs have failed to prove that the construction licence granted to the defendant no.4 is bad in law.