The defendants traversed the claim of the plaintiffs and set up the plea that the structures A, C and B companystitute one house which is ancestral house of the defendants the said house was companystructed by their ancestors more than hundred years back with the permission of the ancestors of the plaintiffs Bhatkar the ancestral house companylapsed partly due to the heavy flood in 1945 and was re constructed in the same year.
Issue number1 is to the following effect Whether the plaintiffs prove that they are entitled to get demolition order to the suit portions marked A, C, D E as shown in the plan annexed to the plaint?
The plaintiffs sought for the following reliefs in the suit filed on April 13, 1989 The defendants be ordered to demolish the suit portions marked A, C, D and E in the plan and to restore the suit property in its original companydition to the plaintiffs and to close the door opened on the western side.
A.No.190/2007 companytdd 2 The aforesaid prayers were founded on the pleading that the defendants Mundkars companystructed the structure D in 1978 structures E C in October, 1983 and structure A in December, 1987.
The Trial Court partly decreed the suit and ordered demolition of the structures excluding the Mundkarial area as was demarcated by the Mamlatdar in Exh.
The plaintiffs averred that the above structures, namely, A, C, D E have been companystructed by the defendants beyond mundkarial area the plaintiffs asked the defendants to demolish the structures C, E D in 1986 but the defendants refused to demolish the same and companystructed another structure C in November, 1987.
The Trial Court accepted the argument of the plaintiffs that the suit was for restoration of possession in the property in its original form and the limitation for such relief is 12 years.
The prayer regarding demolition of structures C, D, E have been denied as the High Court was of the opinion that as regards these structures, suit was barred by time.
The defendants were also restrained by an order of permanent injunction from interfering in any portion of the suit property excluding the Mundkarial area as demarcated in Exh.
They are aggrieved by the judgment of the High Court of Bombay at Goa whereby the learned Single Judge of that Court partly allowed the appeal of the defendants respondents herein and companyfined the decree passed by the First Appellate Court with regard to the demolition of Structure A only.
The first companystruction is the structure D which was made in 1978 and, therefore, the suit filed in the year 1989 is within limitation.
The defendants, their family members, relatives, servants or any one representing them, be restrained by way of permanent injunction from interfering in any portion of the suit property in any manner whatsoever and or from doing any companystruction of whatsoever nature in the suit property.
In light of the pleading of the parties, the Trial Court framed initially three issues and later on framed two additional issues.
The First Appeal was heard by the 2nd Additional District Judge, North Goa, Panaji.
A.No.190/2007 companytdd 3 While companysidering the above issue, the Trial Court companysidered the argument of the defendants that the suit was number within limitation.
The defendants also set up a plea that structures D E were companystructed long back and the defendants and their family members have been residing there since 1974.
After hearing the parties, the First Appellate Court, in exercise of its power under Order XLI Rule 33 of the Code of Civil Procedure, 1908 for short C.P.C. , while dismissing the defendants appeal, modified the judgment and decree of the Trial Court by granting the plaintiffs the decree as prayed for in the plaint.
Against the judgment and decree of the Trial Court, the defendants preferred First Appeal.
P 6 or from doing any companystruction of any nature whatsoever in the said area excluding Mundkarial area.
A.No.190/2007 companytdd 4 The defendants filed Second Appeal before the High Court challenging the judgment and decree of the First Appellate Court.
For the sake of companyvenience, we shall refer the appellants, plaintiffs and the respondents, defendants hereinafter.
Original plaintiffs appellants herein are in appeal, by Special Leave.
