Shri Agnelo Jose Inacio D''Silva and Smt. Francisca Crasto Angelo D''Silva vs Smt. Inacia Crasto D''Silva, alias Enacio Crasto, Smt. Ana Rosa D''Silva, Shri Rosario Francisco Asis D''Silva, alias Francisco Silva and Shri Egidio Mario Esperdiao D''Silva

N.A. Britto, J.—This Writ Petition is directed against the order dated 24.3.2009 of the learned District Judge, Margao by which the learned District Judge has granted injunction and has restrained the defendants ( Petitioners herein ) from carrying out any further demolition of the suit house or carrying out any construction or reconstruction in the suit property either temporarily or permanently. There is no dispute that the suit house bearing house No. 631 is the ancestral house of the plaintiffs and defendants and is also situated in a property which is common. It appears that in the year 1978 or there about the defendants repaired and extended the suit house without any objection from the plaintiffs or other co-owners of the property. However, when the plaintiffs sensed that the defendants were going to reconstruct the suit house, they first approached the Village Panchayat by application dated 14.1.2008 and thereafter filed the suit on 23.10.2008. It further appears that at the time of filing of the suit the walls were already reconstructed and reached to the slab level. The photographs produced show that the walls have been reconstructed with laterite stones and the roof is temporarily covered with manglore tiles.

The learned Trial Court had rejected the application filed by the plaintiffs for injunction on the ground that there were laches. However, the learned First Appellate Court has dealt with this matter in para 24 of the judgment observing that the fact that the plaintiffs had moved the appropriate authorities would suggest an interference that the plaintiffs were diligent enough to exhaust the remedies available to them before approaching the Court. It appears that the plaintiffs had approached the Panchayat authorities when the defendants had brought the construction material and even before the house was demolished for the purpose of reconstruction, and, therefore as rightly observed by the learned First Appellate Court, the defendants should not be allowed to complete the construction only on the ground that there was delay on the part of the plaintiffs in approaching the Court.

Shri S. Usgaonkar, learned Counsel on behalf of the petitioners, has submitted that the house has already reached up to the slab stage and the petitioners will not cast the slab but a view to protect the house would cover it with tiles. Learned Counsel further submits that the plaintiffs ought also to be allowed to plaster the walls as otherwise hardship would be caused to the plaintiffs. Learned Counsel further submits that the plaintiffs are also prepared to give an undertaking, that the plaintiffs will not claim the cost of the reconstruction of the house or improvements made in the event proceedings of inventory for partition are filed of the common property of the plaintiffs and defendants.

Although the house might have been in possession of the defendants, apparently, the defendants do not reside therein but they reside at Margao. The Counsel on behalf of the plaintiffs submits that if at all the defendants reside at Margao, they reside only for the convenience of the defendants who work in Margao. The photographs produced at page 171 of the paper book, prima facie, give an impression that the house was not in the occupation of the defendants and defendants have taken a big risk in reconstructing the same without the consent of the other co-owners of the said house and the property inspite of knowing that the plaintiffs were objecting to the reconstruction when they filed a complaint to the Panchayat. Even if equities were to be considered, they are not at all in favour of defendants. Once it is held that the house is common and is not divided, the defendants certainly were not entitled to demolish and reconstruct the same in a manner it is done, by seeking permission only for repairs and not for reconstruction and without consent of other co-owner. Considering the facts of the case, in my view the order of the learned First Appellate Court could not be faulted. I, therefore, find that there is no merit in the Petition and accordingly the same is hereby dismissed.