Ganu Naik and 36 Ors., v. Krishnakamal Apts.,Co-Op. Housing Society Ltd.,Thr. Its Secretary, Shashikant a. Raikar and 39 Ors.

Bombay HC24 Nov 2017SA/81/2017

Case brief

AI extract

What is this about?

This second appeal concerned a dispute over land boundaries and possession between a co-operative society and individual respondents. The High Court held that ocular evidence was insufficient and a government survey was necessary to resolve the boundary issue before the High Court could decide the questions of law. Consequently, the lower courts' judgments were quashed, and the suit was restored.

What did the court decide?

Quashed judgment and decree of District Judge and Civil Judge. Suit restored to the file of Civil Judge for directions to appoint a government surveyor.

Ganu Naik and 36 Ors., Vs Krishnakamal Apts.,Co-Op… — Property and Title | Bombay HC (2017)

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Maria S. 1 sa81-2017dt 24-11-17

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IN THE HIGH COURT OF BOMBAY AT GOA

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SECOND APPEAL NO. 81 OF 2017

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1. Shri Ganu Naik,
 (Treasurer Dhavali Sarvajanik Ganeshotsav Mandal),
 of major age,
 residing at C/o Top Hotel,
 Close to Ponda-Margao Road,
 Dhavli Ponda-Goa.

¶5

2. Shri Vishnu M. Surve,
 (Vice-President, Dhavali Sarvajanik Ganeshotsav Mandal)
 of major age,
 residing next to Panky Tiles Factory,
 Close to Ponda-Margao Road,
 Dhavolimol, Ponda-Goa.

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3. Shri Sanjay Ghate,

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 (Secretary, Dhavali Sarvajanik Ganeshotsav Mandal)
 of major age,
 residing at B-6, Chaiitannya Apartments,
 Dhavali, Ponda-Goa.

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4. Shri Gaurish Hede,

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 (Assistant Secretary, Dhavali Sarvajanik Ganeshotsav Mandal)
 of major age, residing at G-3,

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 Ground floor, Marva Apartments,
 Dhavali, Ponda-Goa.

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5. Shri Monal Madhav Manerikar,

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 (Assistant Treasurer, Dhavali Sarvajanik Ganeshotsav Mandal)
 of major age,
 residing at H. No. 223,

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Maria S. 2 sa81-2017dt 24-11-17

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 Near Satyanarayan Temple,
 Dhavali, Ponda-Goa.

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6. Shri Ulhas Bhagwant Kamat,
 (President, Dhavali Sarvajanik Ganeshotsav Mandal)
 of major age,
 residing at A-1, Laxmiraj Vihar Colony,
 Dhavali, Ponda-Goa.

¶16

7. Shri Vijendra K. Dhavalikar,
 of major age,
 residing at Varachawada,
 Dhavali, Kavale, Ponda-Goa.

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8. Shri B. N. Bhat,
 of major age,
 residing at Dhavli Mal,
 Ponda-Goa.

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9. Sou Vishakha G. Dhavalikar,
 of major age,
 residing at Dhavali, Ponda Goa.

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10. Shri Datta Damodar Hegde,
 of major age,
 residing Flat no. 2,
Tip Top-II, Dhavali,

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 Ponda-Goa.

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11. Shri Devidas L. Ghate,
 of major age, residing at Khandepar,
 Ponda Goa.

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12. Shri Jaiprakash Laxmikant Ghate, of major age, residing at Chaiitannya Apartments,

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Maria S. 3 sa81-2017dt 24-11-17 Dhavali, Ponda-Goa. 13. Shri Yeshwant Nilkant Naik, of major age, residing at H. No. 190, Dhavali-Mol, Kawale, Ponda-Goa. 14. Sou Shilpa Gaurish Hede, of major age, residing at Flat no. G-3, Marwa Apartments, Dhavali, Ponda-Goa. 15. Sou Shubadha J. S. Hede, of major age, residing at Flat no. G-3, Marwa Apartments, Dhavali, Ponda-Goa. 16. Shri Harshvardhan S. Behare, of major age, residing at House no.93, Dhavali, Ponda-Goa. 17. Shri Madhukar Vernekar, of major age, residing at Krishnakamla Apartments-3, Dhavali, Ponda-Goa. 18. Sou Mohini Vernekar, of major age, residing at Krishnakamla Apartments-3, Dhavali, Ponda-Goa. 19. Shri Mahesh Vernekar, of major age, residing at Krishnakamla Apartments-3,

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Maria S. 4 sa81-2017dt 24-11-17

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 Dhavali, Ponda-Goa.

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20. Shri Prasad S. Parkar,
 of major age,
 residing at H. No. 312,
 Parimal Housing Co-operative Society,
 Dhavali, Ponda-Goa.

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21. Shri M. B. Lava,
 of major age, residing at
 Dhavali, Ponda-Goa.

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22. Shri Shashidharan,
 of major age,
 residing at Tip Top Mansion,
 Dhavali, Ponda-Goa.

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23. Shri Jaiprasad Khandeparkar,
 of major age,
 residing at EMVI Enterprises,
 Dhavali, Ponda-Goa.

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24. Shri Yatin Yeshwant Naik,
 of major age,
 residing at H. No. 190, Dhavali-Mol,
 Kavale, Ponda-Goa.

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25. Sou Nalini Kumbhar,
 of major age,
 residing at Dhavali, Ponda-Goa.

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26. Shri Amir Kumbhar,
 of major age,
 residing at Dhavali, Ponda-Goa.

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Maria S. 5 sa81-2017dt 24-11-17

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27. Sou. Dipti Yeshwant Naik,
 of major age,
 residing at H. No. 190, Dhavali-Mol,
 Kavale, Ponda-Goa.

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28. Shri M. Venkoba Rao,
 of major age,
 residing at B-2, Chaitanya Apartments,
 Dhavali, Ponda-Goa.

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29. Shri Somnath D. Kumbhar,
 of major age,
 residing at Dhavali, Ponda-Goa.

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30. Shri Shyam V. Shinkre,
 of major age,
 residing at Dhavali, Ponda-Goa.

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31. Smt. Vitorina Pereira,
 of major age,
 Residing at Dhavli, Ponda-Goa.

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32. Shri Anil K. Dessai,
 of major age,
 residing at C-5, Chaitannnay Apartments,
 Dhavali, Ponda-Goa.

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33. Shri Mayur Vernekar,
 of major age,
 residing at Krishnakamal Apartments 3,
 Dhavali, Ponda-Goa.

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34. Shri S. V. Korde,
 of major age,
 residing at Dhavali, Ponda Goa.

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Maria S. 6 sa81-2017dt 24-11-17

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35. Shri Manohar Dessai,
 of major age,
 residing at Sankalpana,
 Dhavali, Ponda-Goa.

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36. Sou Anjali Lava,
 of major age,
 residing at Krishnakamal Apartments II,
 Dhavali, Ponda Goa.

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37. Shri Gajanan D. Naik,
 of major age,
 Residing at C/o Top Hotel,
 Dhavli, Ponda, Goa. … Appellants
 Versus

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1. Krishnakamal Apartments,
 Co-operative Housing Society Ltd.,
 Apartment-1, Dhavli, Ponda, Goa,
Through its Secretary,
 Shri Shashikant Anant Raikar,
 of major age,
 Residing at Flat No. 5, First Floor,
 Krishnakamal Apartment I,
 Dhavli, Ponda, Goa.
2. Shri Shivaji D. Naik,
 of major age, General Merchant,
 residing at Dhavali,
 Ponda Goa.
3. Shri Lavu R. Konduskar,
 of major age,
 residing at Flat no. S-7, Tip Top Mansion IV,

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Maria S. 7 sa81-2017dt 24-11-17

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 Dhavali, Ponda Goa.
4. Shri Vinayak L. Konduskar,
 of major age,
 residing at Flat no. S-7, Tip Top Mansion IV,
 Dhavali, Ponda Goa.
5. Shri Mohan M. Gude,
 of major age,
 residing at Seikera Apartments,
 Opp. Syndicate Bank,
 Dhavali, Ponda Goa.
6. Shri Hiru V. Naik,
 of major age,
 residing at H. No. 270,
 Dhavali-Mol,
 Kawale, Ponda Goa.

¶49

7. Shri Krishna V. Tadadikar,
 of major age,
 residing at Febina Apartments,
 III Floor, Dhavali, Ponda Goa.

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8. Shri Alphose Joseph,
 of major age,
 residing at Dhavali, Ponda Goa.
9. Shri Abhinay G. Naik,
 of major age,
 residing at Chaitannya Apartments,
 Dhavali, Ponda Goa.

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10. Sou Meena K. Tadadikar,
 of major age,

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Maria S. 8 sa81-2017dt 24-11-17 residing at 3rd floor, Febema Apartments, Dhavali, Ponda Goa. 11. Shri Damodar G. Naik, of major age, residing at C/o Deepa Bar, Dhavali, Ponda Goa. 12. Shri Mahesh A. Konkar, of major age, residing at Flat no. F-2, Saurabh Apartments, Dhavali, Ponda Goa. 13. Shri K. B. Ghasari, of major age, residing at C/o Goa Coach, Dhavali, Ponda Goa. (since expired represented by his L.R's) 13(a) Smt. Krishna Ghasari. 13(b) Shri Sanjay Krishna Ghasari Both of major ages, residing at Gokul Smruti, Near Dhavali Bus Stop, Dhavali, Ponda Goa. 14. Kum. Shailendra G. Babshet, of major age, residing at H. No. 227, Kanaka Niwas, Dhavali, Ponda Goa.

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15. Shri Ajay Dhiman,
 of major age,
 residing at Febema Apartments,
 Dhavali, Ponda Goa.

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Maria S. 9 sa81-2017dt 24-11-17

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16. Shri Santosh D. Hegde,
 of major age,
 residing at Flat no. 2, Tip Top 2,
 Dhavali, Ponda Goa.

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17. Smt. Bharati D. Hegde,
 of major age,
 residing at First Floor,
 Room no. 2, Tip Top Mansion,
 Dhavali, Ponda Goa.

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18. Shri Sunil Rama Gawade,
 of major age,
 residing at C/o Top Hotel,
 Dhavali, Ponda Goa.

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19. Shri Kiran Limaye,
 of major age,
 residing at House no. 212,
 Dhavali, Ponda Goa.

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20. Shri Gopal R. Babshet,
 of major age,
 residing at House no. 227,
 Kanaka Niwas, Dhavali,
 Kawale, Ponda Goa.
 (since deceased represented by his L.R's)
 20(a) Pavan G. Babshet of major age,
 20(b) Pankaj G. Babshet, of major age,
 20(c) Mrs. Gopal Babshet, of major age,
 All residents of House No. 227,
 Kanaka Niwas, Kavale, Ponda Goa.

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21. Shri Jivaji P. S. Hede,
 of major age,

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Maria S. 10 sa81-2017dt 24-11-17 residing at flat no. G-3, Marwa Apartments, Dhavali, Ponda Goa. (since deceased represented by his L.Rs') 21(a) Sou Jyoti Jtvaji Hede alias Jyoti Sarvash, of major age and her husband 21(b) Shri Sarvesh Ambe, of major age, both are residing at Savarkuttai Cuncolim, Salcette, Goa. 22. Sou Rajani M. Shetye, of major age, residing at Tip Top II, Room no. 2, Dhavali, Ponda Goa. 23. Shri Damodar P. Naik, of major age, residing at C/o Deepa Bar and Restaurant, Dhavali, Ponda Goa. 24. Shri Umesh M. Kenkre, of major age, residing at Swapna Gandha, Dhavali, Ponda Goa. 25. Sou Vinaya G. Sardessai, of major age, residing at H. No. 190, Dhavali-Mol, Kawale, Ponda Goa. 26. Smt. Indira U. Kenkre, of major age, residing at Swapna Gandha Building, Dhavali, Ponda Goa.

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Maria S. 11 sa81-2017dt 24-11-17 27. Shri Jeevan Kumbhar, of major age, residing at Dhavali, Ponda Goa. 28. Shri Shrinivasa Kamat, of major age, residing at Flat no. T-7, Tip Top Mansion, Dhavali, Ponda Goa.

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29. Shri M. V. Khandeparkar,
 of major age,
 Residing at Flat no. F-1,
Tip Top Mansion IV, Behind Syndicate Bank,
 Dhavali, Ponda Goa.
 (since expired through his L.R's)
 29(a) Mrs. Mohini Mohan Khandeparkar,
 resident of Flat no.F-1, Tip Top Mansion 4,
 Behind Syndicate Bank, Dhavali, Ponda Goa.
30. Shri Suhas G. Havaldar,
 of major age,
 residing at Dhavali, Ponda Goa.
 (since deceased, represented, by his legal heir/widow)
 30(a) Smt. Anjali Havaldar,
 of major age,
 residing at Ground floor, Shubham Building,
 Dhavali, Ponda Goa.

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31. Shri Shashikant R. Naik,
 of major age,
 residing at H. No. 61/1,
 Kalchawada, Dhavali, Ponda Goa.

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Maria S. 12 sa81-2017dt 24-11-17

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32. Shri R. R. Pawar,
 of major age,
 residing at Omkar, Navdurga, Garden,
 Borim, Ponda Goa.

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33. Shri Prakash D. Bawe,
 of major age,
 residing at Khalchawada H. No. 495,
 Dhavali, Ponda Goa.

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34. Shri Ashok Anant Kamat,
 of major age,
 residing at Dhavali, Ponda Goa.
35. Sou Priyanka I. Singh Gaikwad,
 of major age,
 residing at H. No. 2,
 Dhavali, Ponda Goa.

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36. Shri Surjeesh M. Nambiar,
 of major age,
 residing at Dhavali, Ponda Goa.

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37. Sou Ajura Haldankar,
 of major age,
 residing at House No.2,
 Indira Nagar, Dhavali-MOI,
 Dhavali, Ponda Goa.

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38. Shri Anand I. Singh Gaikwad,
 of major age,
 residing at H. No. 2,
 Dhavali, Ponda Goa.

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39. Shri Indrajeet A. Singh Gaikwad,

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Maria S. 13 sa81-2017dt 24-11-17 of major age, residing at H. No. 2, Dhavali, Ponda Goa.

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40. Shri S. S. Pawar,
 of major age,
 residing at Vishambhar Nagar,
 Near Forest Dept.,
 Dhavali, Ponda Goa.

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Mr. Shashikant N. Joshi, Advocate with Ms. Aditi Kamat, Advocate
for the Appellants.

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Mr. Vinoj K. Daniel, Advocate for Respondent no. 1
Mr. Sanjay Ghate, Representative of Respondent no. 2 to 40.

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Coram : N.M. Jamdar, J.

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 Date : 24 November 2017.

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ORAL JUDGMENT:

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Heard Mr. S. N. Joshi, learned Counsel for the

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Appellants and Shri V. K. Daniel, learned Counsel for the
Respondent no. 1. Though the learned Counsel on behalf of
Respondent no. 2 to 40 is not present today, Mr. Sanjay Ghate, the
representative of Respondent no. 2 to 40 is present and the learned
Counsel for the Appellant states that the interest of the Appellants
and the Respondent no. 2 to 40 is the same which has been
confirmed by the representative of Respondent no. 2 to 40, and the
other Advocates.

¶82

Maria S. 14 sa81-2017dt 24-11-17

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2.Admit. Question of law has already been framed by an
earlier order. The filing of paperbook is dispensed with. By consent,
taken up for hearing forthwith.

¶84

3.The Original Defendants have filed the Second Appeal
being aggrieved by the Judgment and Decree dated 18 April 2017
passed by the District Judge, Panaji in Civil Appeal no. 23/2012.
The learned District Judge by the impugned Judgment had allowed
the Appeal and set aside the Judgment and Order passed by the
learned Civil Judge Junior Division, Ponda in Regular Civil Suit no.
59 of 2004.

¶85

4.The Respondent-Plaintiff which is a Co-operative Society, filed
Regular Civil Suit no. 59 of 2004 in the Court of the Civil Judge
Junior Division, Ponda seeking a relief of permanent injunction and
consequently directions. According to the Plaintiff-Society, it
occupies a building known as Krishnakamal Apartments, and the
building/plot admeasuring 855 sq.mts is near the Ponda-Margao
National Highway. According to the Respondent-Plaintiff, its
members are in possession of the building and the plot, however, the
Defendants, taking advantage of the absence of the Plaintiffs due to
Ganesh Chathurthi celebration, sought to encroach upon the
property and disturb the possession of the complainant and therefore

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Maria S. 15 sa81-2017dt 24-11-17

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a suit for injunction had to be filed. The Defendants contested the
suit by filing written statements and disputed that the area claimed by
the Plaintiff-Society is forming part of the open area between the
Ponda-Margao highway and sub-divided plot existed and that the
Plaintiffs have no right whatsoever to the area. The learned Civil
Judge framed issues as to the ownership of the suit plot, whether the
Plaintiffs have been conducting the Ganesh festival on the suit plots
and whether there existed any shed on the suit plot and disturbance
was caused by the Defendants. The learned Civil Judge answered
these issues in the negative and by Judgment and Order dated 30
December 2011, dismissed the suit. In the Appeal filed by the
Plaintiff, the learned District Judge by Judgment and Order dated 18
April 2017 reversed the findings of the learned Civil Judge and
decreed the suit. The learned District Judge accordingly granted
injunction against the Defendants some of them have filed the
present Second Appeal.

¶88

5.Having heard the learned Counsel for the parties, on 18
August 2017, the learned Single Judge of this Court, (G. S. Patel,J)
has framed the following questions of law for consideration:

¶89

I.Whether the learned First Appellate Court
misconstrued the pleadings, evidence and
documents on record, resulting in miscarriage of
justice as against the Defendants?

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Maria S. 16 sa81-2017dt 24-11-17

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II.Whether the learned First Appellate Court
misconstrued the open space in the road widening
area between the suit plot and the tar road to be
the statutory open space as contemplated under
Regulation 12.4 of the Goa Land Development &
Building Construction Regulation 2010?

¶92

III.In absence of any title or possession in
favour of the Plaintiffs, whether the First Appellate
Court erred in granting permanent injunction
against the Defendants, their agents, servants, etc,
acting through or under them from celebrating
Sarvajanik Ganesh Utsav in the road widening
area between the boundary of the suit plot and
Ponda-Margao bypass road?

¶93

6.I have heard the Counsel for the parties on the questions
of law so framed. As the learned Counsel for the parties agree that
the entire dispute revolves around the strip of land in which the
Ganesh Utsav is stated to be conducted. As to the location of the
strip of land, the character and ownership, as the learned Counsel for
the parties agree, will have to be ascertained with reference to survey
maps and other such official documents. It is clear from the decisions
of both the Courts that what essentially is before the Court is a
boundary dispute.

¶94

7.In the suit filed for injunction where the boundaries and
the location of the land is in dispute, this Court in the case of

¶95

Maria S. 17 sa81-2017dt 24-11-17

¶96

Manohar Mahadeorao Pagrut v. Sunanda Ramdas Tharkar1; Sou.
Ashatai w/o. Vijayrao Warekar & Ors., v. Champatrao Laxmanrao
Kale & Anr2and Niranjanabai Chandrakant Vira v. Pramilabai
Balkrishna Zade & another;3 has held that in cases of disputes
relating to boundaries, the ocular evidence cannot be sufficient and
for a speedy resolution of disputes a survey through independent
witness, preferably a Government surveyor is a proper course of
action to be taken. In the present case there is no such Court
appointed Commissioner in both the Courts. Both the Courts could
have directed the appointment of a government surveyor who could
have submitted the report and who could have been then cross-
examined. Though Patel, J, by Order dated 7 September 2017 and 6
October 2017 has directed that the Directorate of Settlement & Land
Records to carry out the survey, the evidentary value of such report
will have to be decided as the learned Counsel for the parties are not
ad-idem regarding the veracity of this report. It is not possible in a
second appeal to appreciate evidence which is placed before the
Court for the first time. The learned Counsel for the parties agree
that the evidence of the Court appointed Surveyor can be called for
by the Trial Court. Thus, the Trial Court will have to direct the
survey by a Government Surveyor whose report can be placed on
record and the surveyor can be called as witness and cross-examined.

¶97

1 2008(3)BCR 4

¶98

2 2011(5) All MR 658

¶99

3 2004(6) BCR 829

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Maria S. 18 sa81-2017dt 24-11-17

¶101

The learned Counsel for the parties agree that such course of action
will put an end to the long standing dispute and the same can be
resolved conclusively.

¶102

8.In these circumstances, the question of law framed will
have to be answered accordingly and the Judgment and Decree
passed by both Courts will have to be set aside and the suit will have
to be restored to file. In view of the arguments made by the learned
Counsel for the parties, which are noted above, either of the parties
can make an application for appointment of a Court
Commissioner/official surveyor to the Trial Court and the Trial Court
can then follow the methodology indicated in the decisions supra.

¶103

9. Accordingly, the Appeal is disposed of by the following
Order:

¶104

i. The Judgment and Decree dated 18 April 2017 in
Regular Civil Appeal no. 23/2012 passed by the District
Judge-2, Panaji, and the Judgment and Decree dated
30 December 2011 in Regular Civil Suit No.
59/2004/C passed by the learned Civil Judge, Junior
Division, Ponda are quashed and set aside.

¶105

ii.The Regular Civil Suit bearing no. 59 of 2004/C stands

¶106

Maria S.

¶107

19 sa81-2017dt 24-11-17

¶108

restored on the file of the learned Civil Judge, Junior
Division, Ponda.

¶109

iii.The parties will appear before the learned Civil Judge on
5 December 2017 at 02:30pm wherein the learned Civil
Judge will give further directions.

¶110

 iv. All contentions of the parties on merits are kept open.

¶111

10.In view of the disposal of the Appeal, the pending Civil
Application no. 132 of 2017 stands disposed of.

¶112

N.M. Jamdar, J.

Ganu Naik and 36 Ors., v. Krishnakamal Apts.,Co-Op. Housing Society Ltd.,Thr. Its Secretary, Shashikant a. Raikar and 39 Ors.

Case brief

What is this about?

What did the court decide?

Ganu Naik and 36 Ors., v. Krishnakamal Apts.,Co-Op. Housing Society Ltd.,Thr. Its Secretary, Shashikant a. Raikar and 39 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

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