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Judgment
A.P. Lavande, J.—Heard Mr. Sudesh Usgaonkar, learned Advocate for the Petitioner. Mr. N. Sardessai, learned Advocate for Respondent No. 1. None for the Respondent Nos. 2 and 3, though served
Rule. By consent heard forthwith.
By this petition under Article 227 of the Constitution of India, the Petitioner who is the Defendant No. 3 in Regular Civil Suit No. 179/2004/D pending before the Civil Judge, Junior Division, Margao challenges the judgment and order dated 6.2.2009 passed by the District Judge-4, South Goa Margao, granting injunction in favor of the Respondent No. 1/Plaintiff by allowing the appeal against order dated 21.3.2006 passed by the Civil Judge Junior Division, Margao.
By the impugned order, the lower appellate Court has allowed the appeal against the order passed by the trial Court dismissing the application for temporary injunction filed by the Respondent No. 1/Plaintiff.
Having heard, the learned Counsel for the Petitioner and Respondent No. 1 and having perused the record, I am of the considered opinion that impugned Order in so far as it grants blanket injunction against the Petitioner/Respondent Nos. 2 and 3 in so far as property bearing No. 313/1 of Village Cuncolim, Salcete Goa is concerned is liable to be set aside to the extent of 325 square meters as shown in the plan annexed to the plaint. According to the Plaintiff himself, the Petitioner and Respondent No. 2 have encroached an area admeasuring 325 square meters of the suit property bearing survey No. 313/1 and the Plaintiff also sought mandatory injunction against the Defendants to hand over the said portion of the suit property to the Plaintiff. This being the position, the lower appellate Court could not have granted injunction in respect of an area of 325 square meters as shown in the plan annexed to the plaint. To that extent, the impugned Order is liable to be set aside.
In view of the above, the impugned order passed by the Lower Appellate Court except to the extent of area of 325 square meters as shown in the plan annexed to the plaint is maintained. Injunction in respect of an area of 325 square meters is vacated. It is made clear that Defendants shall have right of access from the road on the southern side of the suit property to the said area of 325 square metres.
Rule is made partly absolute in the aforesaid terms, with no order as to costs.