DOMINGOS TELES Vs. CLARA VIEGAS

JUDGEMENT

(1.) By a judgment dated 13th June, 1986, the learned District Judge, South Goa, dismissed an appeal filed by the present petitioners against the order dated 6th December, 1985, whereby the Civil Judge, (Senior Division), Margao, dismissed their application for temporary injunction. It is against the judgment of the learned District Judge that the present revision application has been filed.

(2.) The petitioners filed a suit for permanent injunction against the respondent on the ground that they are the owners in possession of a property known as "Polentil Tican" or "Zolear" or "Dando" situated at Pollem, Canacona, within the limits of the Village Panchayat of Loalem, Canacona, as they had purchased the said property by a deed dated 22nd October, 1969. The possession of the plaintiffs in respect of the said property has been peaceful, continuous and without obstruction of anybody. There was a structure in the said suit property with an area of 10 x 6.15 mtrs. which was in an abandoned State and in a dilapidated condition. The said structure was not repaired by anyone, even by the petitioners and as such, in course of time, it was broken and only a part thereof remained standing. Three or four months prior to the filing of the suit, one Bruno Viegas, the late husband of the respondent herein, started going to the suit property and he intended to repair the aforesaid structure on the ground that he had a liquor shop in the said structure some ten or fifteen years ago and he wanted to reconstruct the same. The petitioners objected to such works and, therefore, the said Bruno Viegas did not proceed with his endeavour. A little later, Bruno Viegas expired and the petitioners learnt that before his death, he had asked permission of the Village Panchayat for constructing the said structure and to start therein the business of a liquor shop. The petitioners, therefore, objected to the same and even sent a notice dated 1st July, 1985, to the Sarpanch of the Village Panchayat of Loalem stating that the said Bruno Viegas had no right or interest in the suit property and hence, his request to construct a liquor shop in the said property should not be granted. It is further the case of the petitioners that the said Bruno Viegas had filed a mundkar case before the Mamlatdar to get a declaration that he was mundkarin respect of the said structure. However, the Mamlatdar dismissed the said application holding that the same could not be considered under the preview of the Act. The petitioners thought that the matter had come to an end. But they received a letter dated 26th July, 1985, from the Sarpanch of the Village Panchayat of Loalem asking them to produce documentary evidence proving that the said structure does not belong to the late Bruno Viegas. The petitioners replied to the said letter giving all the data asked for by the Sarpanch. However, the petitioners found that the respondent has been bringing laterite stones and other construction materials and dumping it near the aforesaid structure and, therefore, they apprehended that a reconstruction of the said structure was intended by her. They filed the suit praying that the respondent be restrained from constructing the structure existing in the said property and/or interfering, in any manner, with the said structure existing in the suit property. Along with the suit, the petitioners filed an application praying that, pending the disposal of the suit, the respondent be restrained from constructing the said structure and/or interfering, in any manner, with the said structure and suit property.

(3.) The suit, as well as the application for injunction had been resisted by the respondent mainly on the ground that the suit structure is a house bearing No. 1206 which is owned and possessed by her family for the last about 55 years. The same house is shown in the Survey records under No. 313/4 and is shown as being occupied by the late husband of the respondent, Bruno Viegas. The house in question was constructed by the late father-in-law of the respondent more than 55 years back and since then the members of her family had been in adverse possession thereof against the predecessors-in-title of the petitioners and against the petitioners themselves. Such possession has been peaceful, continuous and open and the members of the respondents family had been conducting therein the business of selling country liquor for more than 30 years. It is further the case of the respondent that she and her family members were staying in the said house till the time they constructed a new house at some distance, but they continued the business of selling liquor in the said structure. Inspite of having shifted the residence, the late Bruno Viegas used sometimes to stay in the suit structure. In the month of September 1984, Bruno Viegass health deteriorated and, therefore, he was taken to Bombay where he expired in the month of June 1985. In the meanwhile, due to heavy rains, the Northern wall of the house collapsed and the roof was not repaired for long time and, therefore, the respondent was forced to shift therefrom household articles and furniture as well as liquor utensils to the new house. It is further her case that the house tax in respect of the suit structure was being paid by Bruno Viegas from 1963 onwards and some of the articles are still in the place. She further submitted that she got a licence from the Sarpanch to repair the house.