Antonio Lobo & Anr vs Felix Fernandes & Ors

ANTONIO LOBO & ANR. ... APPELLANTS

VERSUS

FELIX FERNANDES & ORS. ... RESPONDENTS

O R D E R

Original plaintiffs (appellants herein) are in appeal, by

Special Leave. 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

confined the decree passed by the First Appellate Court with regard

to the demolition of Structure 'A' only. 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. For the sake of convenience, we shall refer the

appellants, 'plaintiffs' and the respondents, 'defendants'

hereinafter.

The plaintiffs sought for the following reliefs in the

suit filed on April 13, 1989 :

"(a) 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 condition to the plaintiffs and to close the door opened on the western side.

(b) 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 construction of whatsoever nature in the suit property."

C.A.No.190/2007 contdd..

: 2 :

The aforesaid prayers were founded on the pleading that

the defendants (Mundkars) constructed the structure 'D' in 1978;

structures 'E' & 'C' in October, 1983 and structure 'A' in

December, 1987. The plaintiffs averred that the above structures,

namely, 'A', 'C', 'D' & 'E' have been constructed 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 constructed another structure 'C'

in November, 1987.

The defendants traversed the claim of the plaintiffs and

set-up the plea that the structures 'A', 'C' and 'B' constitute one

house which is ancestral house of the defendants; the said house was

constructed by their ancestors more than hundred years back with the

permission of the ancestors of the plaintiffs (Bhatkar); the

ancestral house collapsed partly due to the heavy flood in 1945 and

was re-constructed in the same year. The defendants also set-up a

plea that structures 'D' & 'E' were constructed long back and the

defendants and their family members have been residing there since

1974.

In light of the pleading of the parties, the Trial Court

framed initially three issues and later on framed two additional

issues. Issue no.1 is to the following effect :

"1. 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?"

C.A.No.190/2007 contdd..

: 3 : While considering the above issue, the Trial Court

considered the argument of the defendants that the suit was not

within limitation.

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 first construction is the structure 'D' which was made in 1978

and, therefore, the suit filed in the year 1989 is within

limitation. 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.P-6. 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.P-6 or from doing any construction of any nature

whatsoever in the said area excluding Mundkarial area.

Against the judgment and decree of the Trial Court, the

defendants preferred First Appeal. The First Appeal was heard by

the 2nd Additional District Judge, North Goa, Panaji. 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.

C.A.No.190/2007 contdd..

: 4 :

The defendants filed Second Appeal before the High Court

challenging the judgment and decree of the First Appellate Court.

The High Court framed two substantial questions of law, which read

as under :

"(a) Whether the trial Court was right in deciding issue no.3, which was an issue on defendants' claim of Mundkarship in respect of the suit structures in view of the specific and express bar on the Civil Court's jurisdiction to decide the said issue in terms of Section 31 (2) of the Goa Daman and Diu Mundkar (Protection from Eviction) Act, 1975.

(b) Whether the Courts below erred in granting the Order of mandatory injunction ordering the demolition of extensions identified under alphabet 'E' and 'C' and the new structure identified under letter 'D' when the suit for the demolition of the suit structures was barred by law of limitation in view of the averments in the plaint."

As regards substantial question of law (a), the High Court

was not convinced with the defendants' argument that the Civil

Court's jurisdiction was barred in terms of Section 31(2) of the

Goa, Daman and Diu Mundkar (Protection from Eviction) Act, 1975 and

answered the said question accordingly.

With regard to substantial question of law (b), the High

Court was of the opinion that the suit was barred by time in respect

of disputed structures except structure 'A'. The High Court, in

this regard, relied upon Article 113 of the Indian Limitation Act,

1963, which provides a period of three years from the date right to

sue accrues for filing a suit for which no period of limitation is

provided elsewhere in the schedule.

C.A.No.190/2007 contdd..

: 5 :

We have already quoted above the reliefs claimed in the

suit and also the pleadings about construction of disputed

structures. The substantive prayer in the suit is for demolition

of the structures 'A', 'C', 'D' and 'E'. There is no article in

the Limitation Act, 1963 that specifically provides for period of

limitation for filing such suit. Article 65 of the Limitation Act,

1963 has no application at all as it provides for a period of

limitation where the suit for possession of an immovable property or

any interest therein based on title. Since there is no specific

Article in the schedule pertaining to the substantive relief claimed

in the suit, the residuary Article 113 comes into play. The plaint

averments leave no manner of doubt that structure 'D' was

constructed by the defendants in 1978; the structures 'C' and 'E'

in October, 1983 while the suit for demolition of these structures

('C', 'D' and 'E') has been filed on April 13, 1989, which is

apparently time barred.

The view taken by the High Court is, thus, in accordance

with law and warrants no interference.

The Civil Appeal is, accordingly, dismissed with no orders

as to costs.

....................J. (R.M. LODHA)

....................J. (JAGDISH SINGH KHEHAR)

NEW DELHI;

SEPTEMBER 28, 2011