Court : Mumbai Goa
oral judgment: 1. heard shri sudesh usgaonkar, learned counsel appearing for the appellant, shri menezes, learned counsel appearing for the respondent nos. 1(a) to (c) and shri c. a. coutinho, learned counsel appearing for the respondent nos. 14 and 15. 2. the above appeal challenges the judgments passed by the courts below whereby a suit for specific performance filed by the appellant in respect of an agreement for sale, executed on or about 20.02.1993, came to be dismissed. 3. briefly, the facts of the case are that the suit for specific performance and other reliefs was filed by the appellants on the ground that the appellant was in need of a plot for the construction of his own house and the respondent no. 1 was dealing with the sale of the plot of the property known as "tareachem bhat", surveyed under no. 83/1 of camorlim village of salcete, taluka. a sale agreement was executed by the respondent no. 1 on 20.02.1993 with the appellants to sell a plot admeasuring an area of 450 square metres from the suit property at the rate of rs.85/- per square metre and the respondent no. 1 received an advance of rs.15,000/- from the appellants towards sale of the said plot. it is further his case that after execution of the said agreement, the appellant was always ready and willing to pay the balance amount but the respondent no. 1 was not ready to execute the said deed as the sub-division of the suit property was not approved by the concerned authorities. it is further the .....
Tag this Judgment!Court : Mumbai Goa
1. heard shri s. d. lotlikar, learned senior advocate appearing for the appellants and shri d. d. zaveri, learned counsel appearing for the respondent no. 1. 2. the above appeal came to be admitted by an order dated 02.02.2006 on the following substantial questions of law: (i) whether the first appellate court being final court of facts, could have proceeded to decide the first appeal, without formulating the points which arose for its determination, and without appreciating the evidence on record? (ii) whether the first appellate court was right in concluding that the suit house was a common house, jointly owned by the respondent no.1 along with the appellant and respondent no.2 when such was not the plea raised by respondent no.1 nor any proof was produced by the respondent no.1 in support of such a plea? (iii) whether the respondent no.1 having approached the court with the claim that the common wall had been already demolished by the defendants, could get a relief against the parallel wall constructed by the appellant, on the ground that this would not interfere with his right for repair of the common wall? 3. during the course of the hearing of the above appeal, shri s. d. lotlikar, learned senior advocate appearing for the appellants, has pointed out that he shall not press for the first substantial question of law but restrict his contentions to the second and third substantial questions of law. 4. shri s. d. lotlikar, learned senior advocate appearing for the .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: (f.m. reis, j.) 1. heard shri vernekar, the learned counsel appearing for the petitioner in both the petitions, ms. s. mordekar, the learned additional government advocate for the respondent no.2 (gczma, for short) in w.p.no.817/2011 and shri s. dhargalkar, the learned additional government advocate for the respondent no.1 (gczma, for short) in w.p.no.155/2010. 2. both the above writ petitions were taken up together by consent of the learned counsel appearing for the respective parties, as the disputed structures are in respect of the properties belonging to the petitioners and the parties to the petitions are the same. 3. shri vernekar, the learned counsel for the petitioners, in support of the above writ petitions, has taken us through the impugned order dated 15/11/2011 passed by the gczma and pointed out from the chart therein that the property bearing survey no.243/15 shows the structures a, b, c, d, e, f, g, h, i and j as shown in the dslr plan, which is marked 'x' for identification. the learned counsel has pointed out that the structure denominated by letter a, located in survey no.243/15 is the transformer having an area of 20 square metres located in the property belonging to the petitioners. the learned counsel points out that as far as such transformer is concerned, it is an utility service provided by the electricity department to supply electricity not only to the petitioners, but also to the adjoining structures belonging to other owners. the .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. heard shri s.d. lotlikar, learned senior counsel appearing for the petitioners, ms. r. pereira, learned counsel appearing for respondent no.1, mr. r.g. ramani, learned counsel appearing for the respondents no.4 to 12 and mr. p.a. kamat, learned counsel appearing for respondents no.13 to 22/petitioners in writ petition no.487 of 2014. 2. at the request of the learned senior counsel appearing for the petitioners in writ petition no.487/2014, leave to delete respondents no.2 and 3 is granted. amendment to be carried out forthwith. 3. rule. heard forthwith with the consent of the learned counsel. learned counsel appearing for the respondents waive service. 4. upon extensively hearing the learned counsel appearing for the respective parties, the main grievance of shri lotlikar, learned senior counsel appearing for the petitioners is that the learned judge by the impugned order whilst exercising jurisdiction under order 39 rule 4 of the civil procedure code varied the order of injunction which has attained finality in favour of the petitioners herein. the learned senior counsel further points out that the import of the impugned order would be that in the suit filed by the petitioners, the respondents would get an injunction against the petitioners without any prima facie adjudication of their respective claims. the learned senior counsel further pointed out that in the suit filed by the petitioners against the municipal council for different reliefs, the .....
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1. rule. rule made returnable forthwith. the learned counsel for the respondents waives service. heard finally by consent of the parties. 2. by this petition, the petitioners, who are the original defendants (appellants before the learned district court), are challenging the order dated 24.02.2016 passed by the learned principal district judge, panaji in regular civil appeal no. 422/2010. by the impugned order, an application filed by the petitioners for amendment of their counter claim, has been dismissed. 3. the brief facts are that the respondents had filed regular civil suit no. 254/2001 for declaration and permanent injunction, claiming ownership and possession over the suit plot and alleging that the petitioners have encroached on the plot of respondents herein, to the extent of one metre towards the southern corner. the petitioners raised a counter claim claiming that they are entitled to build a stone boundary wall between the plot survey no. 65/1 (belonging to the petitioners) and plot survey no. 65/2 (belonging to the respondents). the learned trial court dismissed the suit as well as the counter claim. the petitioners have challenged the judgment and order dismissing their counter claim in regular civil appeal no. 422/2010, which is pending before the learned principal district judge at panaji. 4. in the said appeal, the petitioners filed an application for amendment of the counter claim contending that during the pendency of the appeal on 08.01.2015, the .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: heard shri valmiki menezes, learned counsel appearing for the petitioner and shri v. a. lawande, learned counsel appearing for the respondent nos. 1, 2, 6 to 9. 2. the above writ petition challenges an order passed by the courts below whereby the petitioner has been held guilty of disobeying the order of the court under order 39 rule 2-a of the civil procedure code and, inter alia, directed to remove the loose stones placed after an exparte order came to be granted in favour of the respondents by order dated 21.06.2003. 3. it is not in dispute that the respondents who are defendants in the suit filed by the petitioner, moved an application for temporary injunction on the ground that the access claimed by the respondents was being blocked by the petitioner by putting up a compound wall. after the exparte order dated 21.06.2003 came to be served on the petitioner on the same day, it is the case of the respondents that in blanket disobedience of the said exparte order, the petitioner chose to place five layers of stones over the suit access. the petitioner disputed the said contention and pointed out that such blockage was existing as on the date of the exparte order and, as such, according to the petitioner, even assuming some stones were stacked after the impugned order was served, does not amount to disobedience of the order as claimed by the respondents. learned civil judge, junior division, margao, after holding an inquiry and hearing the parties by order .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: heard shri a. d. bhobe, learned counsel appearing for the petitioner. none for the respondents though served. 2. the above petition challenges an order passed by the learned civil judge senior division, mapusa, in regular civil suit no. 58/1999 dated 08.06.2007 whereby an application filed by the petitioner to get himself impleaded in the suit as pendente lite transferee came to be rejected. 3. shri bhobe, learned counsel appearing for the petitioner has pointed out that the law is well settled that the pendente lite transferee can be impleaded in the suit to avoid multiplicity of the proceedings. the learned counsel further pointed out that the petitioner himself has filed an application to be impleaded in the suit and any decree in the suit would affect the right of the petitioner in the suit property. the learned counsel has taken me through the impugned order and pointed out that the learned judge has erroneously dismissed the application on a spacious ground that there are no pleadings to that effect in the plaint. the learned counsel as such submits that the impugned order deserves to be quashed and set aside. 4. i have considered the submissions of the learned counsel appearing for the petitioner and i have also gone through the records as well as the impugned order. in order to consider as to whether the petitioner is to be impleaded as a party to the suit, it would be appropriate to note the scope and the meaning of doctrine of lis pendens under .....
Tag this Judgment!Court : Mumbai Goa
this is plaintiff's second appeal. 2. plaintiff had filed regular civil suit no. 17/1997/b for demarcation of southern boundary line of the suit property, by appointing head surveyor of the survey department, to do the same. the plaintiff had also sought permanent injunction to restrain the defendants from constructing compound wall on the southern boundary of the suit property or encroaching upon the suit property. the original defendant died during pendency of the suit and his legal representatives were brought on record. 3. plaintiff's case, in short, was as follows:- he is the owner in possession of the suit property known as borimollacodil moddi situated at borimol in quepem taluka, being bounded on the east and north by municipal road; on the west by the property of carlos mascarenhas, under survey no. 57/1 and on the south by the property bearing survey no. 56/1, which belongs to the defendants. the suit property bears survey no. 57/2. it was allotted to the plaintiff by way deed of gift and acceptance dated 01/04/1965. the southern boundary of the suit property is safeguarded by a loose rubble stone addo and there are ten well-grown trees planted by his ancestors existing on the said boundary, which are enjoyed by the plaintiff. on 21/04/1994, the defendants cut one jambul tree belonging to the plaintiff. the plaintiff had filed a case before deputy collector at quepem for demarcation of the southern boundary and the same was demarcated twice, but the said .....
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u.v. bakre, j. this second appeal takes exception to the judgment and decree of the additional district judge, mapusa (first appellate court) in regular civil appeal no. 90 of 2000. 2.regular civil appeal no. 90 of 2000 was preferred by the present appellants, challenging the judgment and decree dated 30/03/2000 of the civil judge, junior division, mapusa (trial court) in regular civil suit no. 98/88/b. 3. that civil suit had been instituted by the respondent of the present second appeal, who is the original plaintiff. 4. the parties shall be referred to as per their status in the said regular civil suit no. 98/88/b. 5.the plaintiff is the owner of the property known as poriato bearing survey no. 198/2 situated at mudda vaddi of village saligao of bardez taluka. the defendants are having a dwelling house and store room (suit room) in the said property. as on the date of filing of the suit, the original defendant was registered as mundkar in respect of the dwelling house. the plaintiff filed the said suit for following prayers : a) for a permanent injunction restraining the defendants, their agents, servants and representatives from interfering with the plaintiff's possession of the suit property and/or doing any construction in the suit property and also restraining them from carrying on any work to the suit room. b) for a mandatory injunction directing the defendants to demolish the suit room along with all the illegal extensions and restore the land to its original .....
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heard mr. thali, learned counsel appearing for the petitioners, mrs. agni, learned counsel appearing for respondent no. 1, ms. razaq, learned counsel appearing for respondent no. 3, mr. agha, learned counsel appearing for respondents no. 2, 4 and 5 and mr. almeida, learned counsel for respondents no. 7, 8 and 9. 2. rule. rule made returnable forthwith. learned counsel for the respondents waive service of notice. by consent, heard forthwith. 3. by this petition, the petitioners have challenged the order dated 02/04/2013 passed by the learned civil judge, senior division, vasco da gama in special civil suit no. 65/97/b. 4. the said special civil suit no. 65/97/b has been filed by the respondent no. 6, since deceased, now through his legal representatives namely the respondents no. 7 to 9, for declaration and consequential reliefs. the petitioners are the defendants no. 4, 5 and 6; respondent no. 1 is the defendant no.1; respondent no. 2 is the defendant no. 2; respondent no. 3 is the defendant no.3 and respondents no. 4 and 5 are the defendants no. 7 and 8, therein. for the sake of convenience, the parties shall hereinafter be referred to in the manner in which they are designated in the cause title of the said special civil suit. 5. the plaintiffs, by way of plaint, inter alia, have alleged in the said suit that by a deed of gift dated 24/11/1975, executed by ana maria fermina trinidade saldhana e cunha, mother of the original plaintiff, through her power of attorney holder, .....
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