Shri. Gopinath Morajkar vs Mr. Pandurang Dabholkar and Another

A.P. Lavande, J

This Second Appeal is preferred against the Judgment and decree dated 8.3.2010 passed by the learned District Judge, South Goa Margao in Regular Civil Appeal no. 96/2009 allowing the appeal preferred by the respondents against the judgment and decree dated 31.8.2009 passed by the learned Civil Judge, Junior Division, Vasco in Regular Civil Suit no.14/2007/D whereby the suit filed by the appellant/plaintiff for permanent injunction and mandatory injunction was decreed. The plaintiff filed the above suit seeking reliefs of permanent and mandatory injunction against the defendants on the ground that they had carried out construction of foundation without keeping proper set back. The trial Court upon appreciation of the evidence led by the parties held that plaintiff had proved his case and consequently decreed the suit. In appeal preferred by the defendants the lower appellate Court held that the plaintiff had failed to prove that construction was carried out by the defendants on the common wall and touching the foundation of the plaintiff''s house and that the same was carried out without keeping set back of one metre.

Ms. S. Linhares, learned Counsel for the appellant submitted that the lower appellate Court has erred in reverting the finding given by the trial Court that the defendants had carried out illegal construction in violation of propreitory rights of the plaintiff by constructing foundation without keeping proper set back. According to learned Counsel finding recorded by the lower appellate Court that the plaintiff has not proved that the defendants had carried out illegal construction touching the foundation of the plaintiff''s house or on a common wall is patently contrary to the record and as such perverse. Learned Counsel further submitted that impugned judgment passed by the lower appellate Court deserve to be quashed and set aside.

Mr. V. A. Lawande, learned Counsel appearing for the respondents supported the impugned Judgment and submitted that lower appellate Court has correctly appreciated the evidence, oral and documentary led by the parties and has arrived at correct findings. Mr. Lawande further submitted that the evidence of the plaintiff and that of the expert E. B. Pereira, (PW2) does not establish that defendants had carried out construction on the common wall touching the foundation of the plaintiff''s house or that the same was carried out without keeping set back of one metre. Learned Counsel, therefore, submitted that appellant has not made out any case for interference with the impugned Judgment and decree.

I have carefully considered the rival submissions and perused the record.

Lower appellate Court upon analysis of the evidence led by both the parties held that the plaintiff had proved that he is owner of area admeasuring 312 square metres of chalta no. 63 and chalta no. 59 of P.T. Sheet no. 158. However, it was further held that plaintiff had not proved that the defendants violated his proprietory rights by constructing the foundation without keeping proper set back. This findings, in my opinion, is recorded upon correct appreciation of the evidence, oral and documentary led by the parties. After critically analysing the evidence led by the parties, the lower appellate Court has held that the plaintiff had not proved the case set up in the plaint. This finding, in my opinion, cannot be termed as perverse warranting interference in Second appeal. In my view no substantial questions of law is involved in the present appeal.In view of the above, I find no merit in this appeal and hence, the appeal is dismissed.