Nayantara Gangadhar Agrawal Rep. by Poa Devidas S. Kudchodkar Vs Albert B. Joanes (Since Dec.) through Lr'S

¶1

Santosh 1 sa128-12dt.16-11-17

¶2

 IN THE HIGH COURT OF BOMBAY AT GOA

¶3

SECOND APPEAL NO. 128 OF 2012

¶4

Nayantara Agrawal. ..…. Appellant.
Versus
Albert B. Joanes (deceased)
through LRs. …... Respondents.

¶5

Mr. R.G. Ramani, Advocate for the Appellant.

¶6

Ms. Agnetha Lobo, Advocate for the Respondent No.2.

¶7

Coram : N.M. Jamdar, J.
 Date : 16 November 2017.

¶8

P.C.:

¶9

By this appeal, the Appellant has challenged the
concurrent Judgments and Orders passed by the learned Ad-hoc
District Judge, Fast Track Court, Margao and the learned District
Judge, Margao, dismissing the Suit and the Appeal filed by the
Appellant.

¶10

2. The Appellant filed Regular Civil Suit No.110/1998,
renumbered as 22/2005, seeking an order and decree of
injunction against the Respondents. According to the Appellant,
the Appellant was residing in the bungalow named as "Krishna

¶11

Santosh 2 sa128-12dt.16-11-17

¶12

Kunj", situated at Varde Valaulikar Road, Margao, Goa. It was
the case of the Appellant that the Respondent No.1 had
constructed a building close to the eastern boundary without
leaving proper setback and kept an opening in the building
towards her bungalow, which was in contravention of Article
2325 of the Portuguese Civil Code. Both, the learned Fast Track
Court and the learned District Judge did not accept the
contention of the Appellant that there was breach of Article
2325 of the Code and, accordingly, dismissed the suit and the
Appeal.

¶13

3. Article 2325, upon which reliance is placed by the Appellant Plaintiff, reads thus :

¶14

“The landlord who constructs a compound wall,
wall or other building close to the extremity of his
property, cannot therein open a window, door, nor a
terrace or verandah, overlooking directly over the
property of his neighbour, without keeping in
between each of these works and this property, a
space of one and half metre”.

¶15

From a bare perusal of this Article, it is clear that the Appellant
could have sought a Mandatory Injunction against the
Respondents if factually there was a space of less than 1.5 metres

¶16

Santosh 3 sa128-12dt.16-11-17

¶17

between the properties. The Respondents, in the Written
Statement, had claimed that the distance kept may be three
metres from the internal courtyard. Both the Court held that the
Appellant had failed to prove the distance.

¶18

4.It is the contention of the learned Counsel for the
Appellant that the evidence of the Appellant and his Architect
wherein it was asserted that proper set back was not kept has not
been specifically controverted in the cross examination. There is
no merit in this contention. The distance between the two
buildings is a question of fact. Since the Plaintiff was seeking a
mandatory injunction and the Respondent disputing the exact
distance, the Appellant should have sought to either carried out
survey or called upon the Court to appoint a Court
Commissioner to measure the distance. Even in First Appeal,
when the decision of the Trial Court was against the Appellant,
no such effort was made. In the absence of any such survey or a
Commissioner's Report, merely on the basis of a statement that
proper set back was not kept, the exact distance cannot be held to
be established. Even in the affidavit in evidence, the Appellant
has not specified the distance and merely has stated that proper
setback is not kept.

¶19

Santosh 4 sa128-12dt.16-11-17

¶20

5.On the basis of the evidence produced by the
appellant which was assessed by both the Courts, it cannot be
held that there is any perversity in dismissing the suit and the
Appeal. I do not find that there is any clear and cogent
admission, nor there is a clear statement by the Appellant
specifying the distance in the evidence, which was necessary in
view of the mention of a particular distance in the Article.

¶21

6.No substantial question of law arises. The Second
Appeal is accordingly dismissed.

¶22

 N.M. Jamdar, J.

Nayantara Gangadhar Agrawal Rep. by Poa Devidas S. Kudchodkar v. Albert B. Joanes (Since Dec.) through Lr'S

Case brief

What is this about?

What did the court decide?

Nayantara Gangadhar Agrawal Rep. by Poa Devidas S. Kudchodkar v. Albert B. Joanes (Since Dec.) through Lr'S

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Jude G. Tandon and Anr., Vs Sunil Noronha and Anr.

Branch Manager and Anr., Vs Shri. Sai Labour Contract Co-Op. Society, Thr. Its Secretary, Katri Balachandran Vadkke and Anr.

Anant Vaman Parab., Vs Shri. Devi Bhumika Vetal Devastan Palyem Pernem, Rep. by Its President Sadashiv v. Parab and 4 Ors.

Goa Industrial Development Corporation, Thr. Its Managing Director., Vs Alandro Dilip Nunes and 4 Ors.

Laxman S. Gaokar (Dec) Rep. by His Lrs., Vs Pramila Kanta Naik and 2 Ors.

Savlo Shivram Mandrekar and Anr., Vs Kumudini Gurudas Joshi, Rep. Thr. Poa, Sanjay R. Joshi (Dec) Rep. by His Legal Rep.