Shri Krishna Deu Sawal, Shri Anand Krishna Sawal and Others vs Shri Mahadev Vithal Sawal and Shri Shakuntala Mahadev Sawal

F.M. Reis, J

Heard the learned Counsel for the Appellants and the Respondents. The above appeal challenges the Judgment and Decree dated 18/4/2009 passed by the learned District Judge-I, I/C of Fast Track Court, Mapusa in Regular Civil Appeal No. 107/2007 whereby the appeal preferred by the Respondents was allowed and the Judgment and Decree passed by the learned Trial Judge dated 27/4/2007 in Regular Civil Suit no.34 of 1999 was quashed and set aside and accordingly the suit filed by the respondents came to be decreed. The learned counsel for the appellants has assailed the impugned judgment on two counts. The first being that the appellants were in possession of the suit property and there is no prayer for restoration of possession. It is further contented that the alleged encroachment in the suit property has not been objected by the respondents and as such, the impugned judgment passed by the learned District judge stands vitiated.

Dealing with the first contention of the appellants, I find that the respondents have prayed for a permanent injunction to restrain the appellants from constructing any structure in the suit property or appropriating the land from the suit property. The other relief sought by the respondents was for a direction to the appellants to fill in the trenches dug in the suit property to is original condition.

On perusal of the plaint it is seen that the suit property has been identified at paragraph 3 in which it is stated that it consists of Plot No. B admeasuring 756 sq.metres having specific boundaries mentioned therein. Hence, it is obvious that the suit property has been identified with boundaries as well as the area thereof. There is no dispute that the appellants are not claiming rights to the said suit property. But it is the contention of the appellants that in view of good relations between the appellants and the respondents they were allowed to encroach into the property of the respondents to the extent of 66 square metres and as such, the digging of trenches was started by the appellants. This contention has been rejected by the Appellate Court on the basis of the evidence on record. The learned Appellate Judge has disbelieved the said allegation on the part of the appellants with regard to the so called agreement. Accordingly, even the counter claim filed by the appellants wherein it was claimed that a portion of their property was being occupied by the respondents came to be dismissed. In the backdrop of such pleadings and the evidence on record, I find that the respondents are seeking for restoration of the land to its original condition by a relief in the nature of a mandatory injunction. The cause of action in the suit is on account of an encroachment being carried out by the appellants by digging trenches in the property of the respondents. The relief sought is to restore it to its original condition. Hence, for such acts of trespass, no relief for restoration of possession is required as submitted by the appellant. In any event this Court in the judgment reported in 1980 Bom. 123 (Nagin Mansukhlal V/s. Haribhan Manbhai Patel has held at para 10 as under:

prayer (b) of the plaint, in the guise of a prayer for a mandatory injunction against the defendant to remove himself from the said flat, is in substance no other than a prayer for the recovery of possession of the said flat, realizing full well that the proper relief to pray for would be a decree or order for possession but at the same time being desirous of bringing the suit in this court and simultaneously not wishing the suit to suffer from a technical defect, the draftsman of the plaint has in the said prayer sought to protect the plaintiff by using the phraseology "that the defendant be ordered and decreed by an mandatory order or injunction...". Thus, really, what is prayed for is a decree for possession. "It is now well settled that when we have to determine the nature of the suit what we are to look at is the real substance of the suit and not legal ingenuity in drafting the plaint. The plaint read as a whole and the real substance of the suit leave no doubt that this is a suit between persons who hold the character of a licensor and licensee, which relationship having come to an end according to the plaintiff, the plaintiff has become entitled both in law and under the agreement of licence to recover possession of the property from the defendant, his licensee.

In view of the said Judgment the relief claimed by the Respondents cannot be faulted. Hence, the first contention raised by the learned counsel for the appellants is rejected.

Dealing with the next contention of the learned counsel for the appellants, on perusal of the impugned Judgment, I find that the sale deed of the appellants and the respondents have plans attached to them. Exhibit 25 is the plan attached to the sale deed of the respondents. On the other hand Exhibit 48 is the plan attached to the sale deed of the appellants. The learned Appellate Court has on the basis of the evidence on record and on examination of the sale deeds came to the conclusion that the appellants have encroached into the property of the respondents. In any event considering that the appellants are not claiming any proprietory rights to the suit property nor there is any plea of any adverse possession claimed by the appellants, the question of alleging that they are entitled to any portion of the suit property does not arise at all. As such, I find that there is no irregularity committed by the learned Appellate Court to come to the conclusion that the construction sought to be carried out by the appellants in the property of the respondents has been duly established. Once no right is claimed over the suit plot of the respondents, the appellants are not entitled to encroach into the property of the respondents on the ground of good relations, which have not been established. As the plot of the respondent is duly identified, the encroached area has been established by the respondents in view of the plan attached to their sale deed. As such, the said contention of the appellants does not survive.

On perusal of the judgment of the Appellate Court, I find that there is no illegality committed by the learned District Judge in deciding the appeal. The learned trial Judge while disposing the suit filed by the respondents has come to the conclusion that the respondents have failed to establish the encroachment which was done by the appellants in the suit property. The learned Appellate Court has rightly held that the encroachment hes been established by the respondent. The learned Counsel for the appellants was unable to point out any illegality in the impugned judgment or that the findings of facts arrived at by the learned Appellate Court were not on the basis of the evidence on record. This Court cannot re-appreciate the evidence in this Second Appeal. In view of the above, no substantial question of law arises in the above appeal. Hence, the appeal stands summarily rejected.