Shashikant Monju Porob Dessai v. Domingos Mascarenhas

2025:BHC-GOA:607 Maria S.

`a) By the judgment and decree of this Hon. Court in the nature of permanent injunction the defendant his family members, agents, servants, workers, or any person acting or claiming through the defendant be restrained permanently from doing or carrying on, or erecting or constructing any construction, structure, building or house, in the said property or interfering in any manner with the said property of the plaintiff, survey No.7/1, village cottambi in Quepem taluka.

b). That by judgment and decree in the nature of mandatory injunction the defendant be directed to remove and demolish the foundation of the new construction and to keep the land and property to its original position.'

'Issues

1. Whether the plaintiff proves that he is owner in possession of survey n. 7/1, situated at village Cotombi, Quepem taluka?

2. Whether the plaintiff proves that defendant is ran trespasser has encroached and constructed a structure admeasuring 75 square meters in the suit property?

3. Whether the plaintiff proves that defendant is trying to disturb the plaintiff's possession in the rest of survey no.7/1?

4. Whether the defendant proves that he is mundkar in the said structure existing in survey no.7/1? [Deleted]

5. Whether the plaintiff proves that he is entitled for relief of Permanent injunction against the defendant in survey no.7/1?

6. Whether the plaintiff is entitled for relief of Mandatory injunction of removal of the structure?

7.

Whether the Court has jurisdiction to grant the relief of mandatory injunction?'

`1. Whether the plaintiff proves that after filing of the suit, the defendant has constructed a new illegal structure admeasuring 76.50 square metres, 2 huts of palm leaves

roofing and a pigsty at a distance of about 10 to 15 metrs from the illegally constructed new house?'

'As said herein above the sketch produced on record at exbt. P-58 does not shown any independent new structure on the southern side not only that it even does not show an extension or for that purpose any type of construction on the southern side of old house. Even assuming that by illegal construction plaintiff wishes to say that it is the construction shown in green colour and blue colour i.e. construction done as per approved plan, than also as the said construction covers only an area of 47 sq.mtrs same cannot co-exists with the pleadings wherein it is alleged illegal construction of 75.50 sq.mtrs. It is nowhere case of the plaintiff in the plant that illegal construction alleged to have been done by the defendant is around old house on north, east and west.

However, the plan produced on record shows the construction on all above three sides. The construction shown in the plan and the construction pleaded in the plaint contradict each other and cannot co exists. Plaintiff wishes the court to demolish and remove the new illegal construction carried out in an area of 75.50 sq.mtrs. Alleged to have been raised on the southern side of the old house. Plaintiff however, failed to prove the construction of altogether new house on the southern side. In fact the plan on record does not show any independent construction admeasuring 75 sq.mtrs. Being so, issue no.6 deserves to be answered in negative accordingly answered as not proved by the plaintiff. Plaintiff through failed to prove entitlement of mandatory injunction to remove illegal structure of 75.50 sq.mtrs.

, he succeeded in proving interference in the suit property on the part of defendants, plaintiff also succeeded in proving his ownership title in the suit property being so, I hold that plaintiffs succeeded in proved issue no.5 as prayed accordingly answered in affirmative along with issues 2 and 3.'

Signed by: MARIA SUZANA REBELLO Designation: Personal Assistant Date: 28/03/2025 15:59:23