COMMUNIDADE OF CACODA Vs. VISHNU BHIKARO SAWANT

JUDGEMENT

(1.) This appeal was admitted on the following substantial questions of law :

(2.) On the basis of the pleadings, several issues were framed. The relevant issues for the purpose of disposal of this appeal is, issue No.4, which reads as under :

(3.) Considering the evidence, the trial Court by its Judgment and Decree dated 30.3.95, decreed the suit by holding that the suit property admittedly belonged to the appellant and that the respondents constructed illegal structure in the suit property for the first time in October, 89. On the issue whether Article 9 of the Code of Communidades, suit was maintainable, the Court held that no such sanction was required. The suit was primarily for preserving the Communidade land from encroachment by the trespassers. Aggrieved respondents herein preferred an appeal being Regular Civil Appeal No.27/95 before the District Judge, Margao. On hearing the appeal, the order of the trial Court was set aside by the Judgment and Decree dated 6.5.88. The first appellate Court, on the issue of sanction for institution of the suit from the Administrative Tribunal in terms of Article 9 of the Code of Communidades, held that the suit essentially being a suit for mandatory injunction though the appellant had sought perpetual injunction as well, that could not be considered as a suit for conservation of the property of the Communidade and therefore, did not fall within the exceptions contemplated under Article 9 of the Code of Communidades. Reliance was placed on the Judgment of the of the Court of Judicial Commissioner in Second Civil Appeal No.15/74 in the case of Communidade of Velgem V/s. Ramnath Atmaram Palekar and ors. This Judgment and Decree of the first appellate Court is the subject-mater of the present appeal.