CHIEF OFFICER MARGAO MUNICIPAL COUNCIL Vs. VAMAN SHIRGAOKAR

JUDGEMENT

(1.) THIS appeal is filed by the original defendants against whom the respondent-plaintiff had filed Regular Civil Suit No. 47/1982/d in the Court of Civil Judge, Junior Division, Margao for perpetual injunction. The trial Court by its judgment dated 31st October 1989 dismissed the suit. The plaintiff then filed Regular Civil Appeal No. 65/89/a in the District Court, South Goa, Margao and the learned Additional District Judge by his judgment dated 2nd January 1995 partly allowed the appeal permanently restraining the defendants from demolishing the plaintiffs house, cowshed, storeroom, W. C. , etc. , with a further direction not to interfere with the said property within a distance of two meters from the outer wall of the house, cowshed etc. Feeling aggrieved, the defendants have preferred this appeal.

(2.) THE plaintiff filed the abovementioned suit without making any reference to his mundkarial rights, contending that he has a dwelling house, cowshed, storeroom and W. C. upon the property of one Ceasor Coelho of Margao. The plaintiff, however, contended that his house, cowshed, etc. , are located within the area of 200 sq. mts. The plaintiff alleged that the defendants demolished the fencing and cowshed, for the purpose of constructing a road. According to the plaintiff, the construction of the proposed road was an encroachment upon the said property. He, therefore, prayed for perpetual injunction. The defendants, on the other hand, pointed out that the said Ceasor Coelho made a gift of a portion of his property in favour of the defendant No. 1 Municipality for the purpose of constructing a road. According to the defendants, the plaintiff had no right to obstruct them in the construction of the proposed road.

(3.) THE trial Court accepted the plaintiffs contention that he has his cowshed, storeroom and W. C. in the eastern side of his house and that there is a compound wall to the north east of the dwelling house and a fencing of live plants to the east of the house. The-trial Court accepted the defendants case there was a gift in respect of a portion of the land by Ceasor Coelho. The trial Court did not accept the plaintiffs contention that the defendants had demolished the compound wall, fencing and part of the cowshed belonging to the plaintiff. It observed that the defendants had started construction of the road upon the strip of land gifted to them by Ceasor Coelho and as such, the plaintiff had no right to obstruct them. The Additional District Judge while allowing the plaintiffs appeal observed that the defendants had no right to demolish the cowshed of the plaintiff, who is a mundkar.