Bombay High Court
Shri. Vasant Hari Birmole And Anr vs Shri. Luis Manvel Disouza on 30 August, 2021
Bench: A.S. Gadkari
Osk 12-SA-619-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 619 OF 2019
WITH
CIVIL APPLICATION (CAS) NO. 399 OF 2019
1. Shri Vasant Hari Birmole ]
Age about 52 years, Occ. Business ]
R/o. Golden Sun Shine Point ]
Hotel Niujaga, Vengurla, ]
Dabholi Road, Tal. Vengurla, ]
District - Sindhudurg. ]
Presently ]
R/o. Golden Sandhya Beach Resort, ]
Keluskarwadi, Tarakarli, Tal.Malavan, ]
District Sindhudurg. ]
2. Shri Jhon Luis Mendosa ]
Age about 60 years, Occ. Service ]
R/o. A.L. 6/9/4, Mayank Apartment ]
Sector No.5, Aroli, ]
Navi Mumbai - 400 708 ] ... Appellants
V/s.
Shri Luis Manvel Disouza ]
Age about 43 years, Occ. Agriculture ]
R/o. Dabholi, Christianwadi, ]
Tal. Vengurla, District Sindhudurg ] ... Respondent
Mr.S.H. Joshi for Appellants.
Ms.Preeti Shah for Respondent.
CORAM : A.S. GADKARI, J.
DATE : 30th August 2021.
Osk 12-SA-619-2019.odt
ORAL JUDGMENT :
1. Appellants, original Defendants, in R.C.S. No. 24 of 2010 filed by
the Respondent, original Plaintiff, have preferred the present Second Appeal
under Section 100 of the Civil Procedure Code, impugning Judgment and
Order dated 8th October 2018 passed in R.C.A. No. 128 of 2014, by the
learned Principal District Judge, Sindhudurg-Oros, dismissing their appeal
with costs and confirming the Judgment and Order dated 2 nd August 2014 in
R.C.S. No. 24 of 2010 passed by the learned Civil Judge, Jr. Division,
Vengurla.
2. Heard Mr.Joshi, learned Advocate for the Appellants and
Ms.Shah, learned Advocate for the Respondent. Perused record.
3. Respondent (original plaintiff) had filed R.C.S. No. 24 of 2010 in
the Court of Civil Judge, Jr. Division, Vengurla for permanent as well as
mandatory injunction against the Appellants and for removal of four huts
unauthorizedly constructed by the Appellants on his property i.e. suit land.
The suit land in-question is a piece or parcel of land bearing Survey No.76,
Hissa No.6-C lying and situated at village Mouje Dabholi, Tal. Vengurla and
specifically described in para No.1 of the plaint, owned and possessed by the
Respondent. The land bearing Survey No.76, Hissa No.6-B belonging to
Appellant No.2 is adjacent to the suit land towards its eastern side. The
Osk 12-SA-619-2019.odt
Appellant No.2 has given his land to the Appellant No.1 for running a hotel
business in the name and style of 'Golden SunShine Points'. Two years prior to
filing of the said suit, the Appellant No.1 was doing the said business with the
consent of Appellant No.2. Appellant No.1 had constructed 6 huts and some
other construction allegedly on the property belonging to Appellant No.2. As
the Appellant No.2 had given his land to the Appellant No.1 for the said
business, the Respondent did not pay much attention to it assuming that, the
said hotel business was/is being run on the land belonging to Appellant No.2.
As the Respondent wanted to develop the suit land, he got it cleaned and
measured through the Survey Department and decided to fence its boundary.
The Respondent thereafter submitted an application to the Taluka Inspector of
Land Record (T.I.L.R.), Vengurla on 24 th February 2010. The concerned
authority accordingly measured the suit land vide M.R. No. 622 of 2010 and
fixed its boundary. The survey department also gave a Map (Exh.71) showing
the exact situation on the suit land to the Respondent and fixed its
boundaries. The Respondent thereafter came to know that, 4 huts of the hotel
being conducted by the Appellant No.1 have been constructed on the suit land
owned by the Respondent. It is the case of the Respondent that, as per the
boundaries fixed by the Survey Department, he went to the suit land on 16 th
April 2010 and embedded some concrete poles on its boundary through his
labourers. That on 17th April 2010 the Respondent again went in the suit land
Osk 12-SA-619-2019.odt
for embedding/fixing remaining poles and at that time, the Appellant No.1
came their along with other persons; caused obstruction to the Respondent;
removed poles; abused Respondent in filthy language and threatened him
with serious consequences. Appellant No.1 being a businessman having man
and muscle power and the Respondent being poor person could not resist the
Appellant No.1. The Respondent therefore approached Vengurla Police Station
for lodging complaint, however the police lodged N.C. bearing No. 153 of
2010 on 17th April 2010 and told the Respondent to approach the Court of
law. The Respondent therefore filed aforestated R.C.S. No. 24 of 2010 on 27 th
April 2010.
4. After receipt of suit summons, the Appellants appeared before the
Trial Court and resisted the said suit by filing their Written Statements (W.S.)
and Say below Exhibit-49 & 43 respectively. The Appellants denied the
contentions of Respondent, denied the title and possession of Respondent over
the suit land and also specifically denied encroachment and construction of 4
huts in the suit land as alleged by the Respondent. As per the say of the
Appellants, all the construction of hotel business was and is in the land
belonging to Appellant No.2 and they are carrying the said business for a
substantially long period. It is to be noted here that, in his Written Statement
the Appellant No.1 in para No.14 has categorically stated that, he told the
Respondent to establish his right over the suit property by adopting lawful
Osk 12-SA-619-2019.odt
procedure and thereafter take possession of the suit property from Appellant
No.2 and it is the reason the Respondent in the month of February 2010
without taking possession of his alleged suit property went back. That the
Appellant No.1 neither abused Respondent in filthy language nor extended
threats to him. The Trial Court accordingly framed issues below Exh.46.
5. The Respondent laid evidence through his Power of Attorney
(P.O.A.) Kum. Benita Manvel D'souza (his real sister). The Respondent also
examined two witnesses, namely, Mr.Ramkrishna S. Chavan (PW-2), Cadastral
Surveyor, who carried out survey of the suit property on 10 th March 2010 in
presence of Respondent, Appellant No.2 and others. This witness has proved
Map (Exh.71), which indicates that 4 huts out of 6 huts of the Appellants
were found in the suit property. The Respondent also examined Mr.Pradeep D.
Khot (PW-3), Cadastral Surveyor, who had also taken joint measurement of
the suit property belonging to the Appellant No.2, on the basis of the
application submitted by Appellant No.2 on 26 th March 2010. Mr.Pradeep Khot
(PW-3) has proved Measurement-sheet (Exh.93) and Map (Exh.94).
It is to be noted here that, the Appellants did not lead any oral
evidence in support of their case.
6. The Trial Court by its Judgment and Order dated 2 nd August 2014
was pleased to decree the said suit with costs and ordered mandatory
injunction against the Appellants and directed them to remove construction of
Osk 12-SA-619-2019.odt
4 huts standing in the suit land within a period of two months from the date
of passing of the decree, failing which the Respondent would be entitled to get
it removed through Court at the costs of Appellants. The Trial Court also
passed decree of perpetual injunction against the Appellants.
7. As noted earlier, the R.C.A. No. 128 of 2014 preferred by the
Appellants has been dismissed with costs by the learned Principal District
Judge, Sindhudurg-Oros by its impugned Judgment and Order dated 8 th
October 2018.
8. Mr.Joshi, learned counsel for the Appellants submitted that,
Kum. Benita Manvel D'souza (PW-1) has deposed on behalf of Respondent
Mr.Luis Manvel Disouza, as his P.O.A., which is not permissible under Order-3
Rule-1 & 2 and Order-18 Rule-4 & 19 of Civil Procedure Code. In support of
his contention he relied on a decision of the Hon'ble Supreme Court in the
case of Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors.,
reported in (2005) 2 SCC 217. He submitted that, it is the substantial question
of law which arises for consideration for this Court and therefore the present
Appeal may be admitted.
9. Per contra, Ms.Shah, learned counsel for Respondent opposed the
Appeal and submitted that, Kum. Benita Manvel D'souza (PW-1) is real sister
of Respondent and has equal knowledge about the suit property, as the
Respondent has. She submitted that, there is no question of any personal
Osk 12-SA-619-2019.odt
knowledge involved in the present case which was necessarily to be deposed
by the Respondent. She submitted that, the facts involved in the decision in
the case of Janki Vashdeo Bhojwani (supra) are different than the facts in the
case in hand and therefore the said decision is not applicable to the present
case. She therefore prayed that, the present Appeal may be dismissed.
10. Perusal of record indicates that, the Respondent apart from Kum.
Benita Manvel D'souza (PW-1) has also examined Mr.Ramkrishna Chavan
(PW-2) and Mr.Pradeep D. Khot (PW-3), both Cadastral Surveyors, who have
surveyed the suit land and the land belonging to Appellant No.2 and have
submitted report that, the Appellants have committed encroachment by
constructing 4 huts on the suit property. Their evidence is not shaken in the
cross-examination conducted by the Appellants. Assuming for the sake of
argument, even the evidence of Kum. Benita Manvel D'souza (PW-1) is kept
aside from consideration, the record clearly indicates that, the Respondent has
proved his case beyond doubt by leading evidence of Mr.Ramkrishna Chavan
(PW-2) and Mr.Pradeep D. Khot (PW-3) and other documents which are on
record, such as, Map (Exh.71), Measurement-sheet (Exh.93) and Map
(Exh.94). The evidence in the present case is in the nature of documents on
record. It is to be noted here that, in the present case, no personal knowledge,
which only the Respondent can have for just decision of the suit, could have
been deposed by him and not by his constituted attorney, is involved. There is
Osk 12-SA-619-2019.odt
nothing on record to even remotely indicate that, the Respondent had any
exclusive personal knowledge about the facts involved herein, which were
necessary for the decision of the said Suit and the constituted attorney of
Respondent i.e. Kum. Benita Manvel D'souza (PW-1) was unable to depose the
said facts, which required his stepping into witness box to depose in that
behalf.
11. As noted earlier, the evidence in the present case is based on
documents of which the constituted attorney of Respondent, namely, Kum.
Benita Manvel D'souza (PW-1) was also having sufficient and substantial
knowledge. Upon a query raised by this Court as to whether the Appellants
had filed an application or raised any objection about deposition by Kum.
Benita Manvel D'souza (PW-1) before the Trial Court, he fairly conceded to
the fact that, such an application was never filed and objection for her
deposition on behalf of the Respondent before the Trial Court was never
raised. It is to be noted here that, the facts involved in the decision of the
Supreme Court in the case of Janki Vashdeo Bhojwani (supra) differ than the
facts involved in the case in hand and therefore the reliance placed by the
learned counsel for the Appellants on the said decision is of no avail to him.
The Respondent is successful in proving beyond doubt that, the Appellants
have encroached upon his land (suit property) and has constructed 4 huts
therein.
Osk 12-SA-619-2019.odt
12. In view of the above and on perusal of record, it clearly appears
that, no substantial question of law is involved in the present Appeal.
Appeal being dehors of merits is accordingly dismissed.
13. Trial Court is directed to proceed with the execution proceedings
as per the provisions of law.
14. In view of disposal of Appeal, Civil Application (CAS) No. 399 of
2019 does not survive and is accordingly disposed off.
[A.S. GADKARI, J.]
Digitally signed
by OMKAR
SHIVAHAR
OMKAR KUMBHAKARN
SHIVAHAR
KUMBHAKARN Date:
2021.09.29
14:46:43
+0530
