Case Note & Summary
The appellants, original plaintiffs Zelia D'Souza and Xavier D'Souza, filed a second appeal against the judgment and decree dated 13.12.2006 of the Ad-hoc Additional District Judge, Panaji, in Regular Civil Appeal No.08/2006. The plaintiffs had filed Regular Civil Suit No.318/2000/A/D before the Civil Judge, Junior Division, Panaji, claiming title to the suit property based on a sale deed dated 12.2.1993. They sought a decree of mandatory injunction directing the original defendant, Vassudev Dattu Pednekar (since deceased, represented by legal heirs), to demolish illegal construction carried out on an area of about 50 sq. metres, recovery of possession, and permanent injunction. The trial court dismissed the suit on 21.12.2005. The plaintiffs appealed, and the lower appellate court partly allowed the appeal on 13.12.2006, granting only a permanent injunction restraining the defendants from encroaching upon the suit property or making any construction outside their existing cowshed. The plaintiffs, aggrieved by the refusal of mandatory injunction and recovery of possession, filed the present second appeal. During the pendency of the appeal before the lower appellate court, after arguments were concluded, the plaintiffs filed an application to amend the plaint, which was rejected. The High Court, after hearing the parties, found that the plaintiffs had not proved that the defendant's construction was beyond the existing cowshed. The court noted that the lower appellate court had correctly appreciated the evidence and that no substantial question of law arose for consideration. Consequently, the second appeal was dismissed, and the judgment of the lower appellate court was upheld.
Headnote
A) Property Law - Title and Possession - Sale Deed - The plaintiffs claimed title to suit property by virtue of sale deed dated 12.2.1993 and sought mandatory injunction for demolition of construction and recovery of possession. The trial court dismissed the suit; the appellate court granted only permanent injunction against encroachment. Held that the plaintiffs failed to prove that the defendant's construction was beyond the existing cowshed, and thus mandatory injunction and recovery of possession were rightly refused. (Paras 2-4) B) Civil Procedure - Second Appeal - Scope - The High Court in second appeal under Section 100 CPC can interfere only if there is a substantial question of law. The court found no substantial question of law arising in the appeal. (Para 5)
Issue of Consideration
Whether the plaintiffs are entitled to mandatory injunction for demolition of alleged illegal construction and recovery of possession of the suit property.
Final Decision
Second appeal dismissed. Judgment and decree of the lower appellate court dated 13.12.2006 upheld.
Law Points
- Specific performance
- mandatory injunction
- recovery of possession
- burden of proof
- title based on sale deed
- encroachment
- permanent injunction
