INACINHA TELLES Vs. GAJANAND VISHWAS VISHNU SIGNEPURKAR

JUDGEMENT

(1.) The appellants are the original plaintiffs while the respondents are the defendants. The appellants filed Regular Civil Suit No.32/1992/D against the respondents for permanent, prohibitory and mandatory injunction and for recovery of possession. The subject matter of dispute is a room bearing house no.22/7 situated in a property known as "Horta" surveyed under chalta no.31 of P.T. Sheet No.148 at Mapusa which is more specifically described in plaint para 2.

(2.) The appellant no.1 is the widow of late John Mathias Telles, while the appellant nos.2 to 5 are their children. The respondent nos.1 and 7 are the sons of late Vishnu Signepurkar. The respondent no.2 is the wife of the respondent no.1, respondent no.3 is the widow of Shyamrao Signepurkar, (late son of Vishnu Signepurkar), while the respondent nos.4, 5 and 6 are the children of Shyamrao and Seema Signepurkar.

(3.) The material case made out in the plaint is that a portion of the suit house was leased/rented to one Thomas D'Souza and the remaining portion continued to be in possession of the appellants. It appears that late Vishnu Signepurkar, the husband of the appellant no.1 had initiated Eviction Proceedings against Thomas D'Souza, before the Rent Controller sometime in the year 1982. For the present, it is not necessary to set out the details thereof. The dispute in the present appeal pertains to the alleged construction/extension of a room made by Shyamrao Signepurkar by encroaching upon the land chalta no.31 of P. T. Sheet No.148. According to the appellants, taking undue advantage of the fact that the appellant no.1 and her late husband were employed at Bombay, Shyamrao carried out illegal construction and extension of a room towards the southern side of the property by committing an act of trespass sometime in the year 1980. The construction at the relevant time admeasured about 3 x 4 metres and was consisting of mud walls, with mangalore tiled roofing. It appears that on the basis of a complaint lodged with the Mapusa Municipal Council, a demolition notice was issued which was challenged by Shyamrao. The matter had reached this Court in Civil Revision Application No.24/1983 and this Court after noticing the fact that the demolition was ordered without issuance of any show cause notice, had set aside the order of demolition. According to the appellants, inspite of repeated complaints to the Municipal Council, no action was taken against the illegal construction. It was contended that the respondents carried out renovation of the illegal construction sometime in Dec. 1988. It is the further case that the illegal construction was further renovated and the construction fell partly in the suit property i.e. in chalta no.31 of P.T. Sheet no.148 and partly in chalta no.33 of P.T. Sheet no.148. The total area of the encroachment construction, according to the appellants is 14.25 square metres. The plaint came to be amended and it was claimed that three months prior thereto, the defendants had kept one Tulsi vrindavan and three flower pots on the northern side of the suit structure i.e. in the property of the appellants. In such circumstances, the appellants filed the suit for the following substantive reliefs :