IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.190 OF 2007

ANTONIO LOBO & ANR. ... APPELLANTS

VERSUS

FELIX FERNANDES & ORS. ... RESPONDENTS

O R D E R Original plaintiffs (appellants herein) are in appeal, by  

Special Leave.  They are aggrieved by the judgment of the High Court  

of Bombay at Goa whereby the learned Single Judge of that Court  

partly allowed the appeal of the defendants (respondents herein) and  

confined the decree passed by the First Appellate Court with regard  

to  the  demolition  of  Structure  'A'  only.  The  prayer  regarding  

demolition of structures 'C', 'D', 'E' have been denied as the High  

Court was of the opinion that as regards these structures, suit was  

barred by time.  For the sake of convenience, we shall refer the  

appellants,  'plaintiffs'  and  the  respondents,  'defendants'  

hereinafter.

The  plaintiffs sought  for the  following reliefs  in the  

suit filed on April 13, 1989 :

“(a)  The  defendants  be  ordered  to  demolish  the  suit  portions marked “A”, “C”, “D” and “E” in the plan and to  restore the suit property in its original condition to the  plaintiffs and to close the door opened on the western  side.

(b)  The  defendants,  their  family  members,  relatives,  servants or any one representing them, be restrained by  way  of  permanent  injunction  from  interfering  in  any  portion  of  the  suit  property  in  any  manner  whatsoever  and/or from doing any construction of whatsoever nature in  the suit property.”

C.A.No.190/2007 contdd..

: 2 :

The aforesaid prayers were founded on the pleading that  

the defendants (Mundkars) constructed the structure  'D' in 1978;  

structures  'E'  &  'C'  in  October,  1983  and  structure   'A'  in  

December, 1987. The plaintiffs averred that the above structures,  

namely, 'A', 'C', 'D' & 'E' have been constructed by the defendants  

beyond  mundkarial area;  the  plaintiffs  asked  the  defendants  to  

demolish the structures 'C', 'E' & 'D' in 1986 but the defendants  

refused to demolish the same and constructed another structure 'C'  

in November, 1987.

The defendants traversed the claim of the plaintiffs and  

set-up the plea that the structures 'A', 'C' and 'B'  constitute one  

house which is ancestral house of the defendants; the said house was  

constructed by their ancestors more than hundred years back with the  

permission  of   the  ancestors  of  the  plaintiffs  (Bhatkar);  the  

ancestral house collapsed partly due to the heavy flood in 1945 and  

was re-constructed in the same year.  The defendants also set-up a  

plea that structures 'D' & 'E' were  constructed long back and the  

defendants and their family members have been residing there since  

1974.

In light of the pleading of the parties, the Trial Court  

framed initially three issues and later on framed two additional  

issues.  Issue no.1 is to the following effect :

“1. Whether the plaintiffs prove that they are entitled to  get demolition order to the suit portions marked 'A', 'C',  'D' & 'E' as shown in the plan annexed to the plaint?”     

C.A.No.190/2007 contdd..

: 3 : While  considering  the  above  issue,  the  Trial  Court  

considered the argument of the defendants that the suit was not  

within limitation.

The Trial Court accepted the argument of the plaintiffs  

that the suit was for restoration of possession in the property in  

its original form and the limitation for such relief is 12 years.  

The first construction is the structure 'D' which was made in 1978  

and,  therefore,  the  suit  filed  in  the  year  1989  is  within  

limitation.  The  Trial  Court  partly  decreed  the  suit  and  ordered  

demolition of the structures excluding the Mundkarial  area as was  

demarcated by the  Mamlatdar in Exh.P-6. The defendants were also  

restrained by an order of permanent injunction from interfering  in  

any  portion of the suit property excluding the Mundkarial area as  

demarcated in Exh.P-6 or from doing any construction of any nature  

whatsoever in the said area excluding Mundkarial area.   

Against the judgment and decree of the Trial Court, the  

defendants preferred First Appeal.  The First Appeal was heard by  

the 2nd Additional District Judge, North Goa, Panaji.  After hearing  

the parties, the First Appellate Court, in exercise of its  power  

under Order XLI Rule 33 of the Code of Civil Procedure, 1908 (for  

short 'C.P.C.'), while dismissing the defendants' appeal, modified  

the  judgment  and  decree  of  the  Trial  Court  by  granting  the  

plaintiffs the decree as prayed for in the plaint.

C.A.No.190/2007 contdd.. : 4 :

The defendants filed Second Appeal before the High Court  

challenging the judgment and decree of the First Appellate Court.  

The High Court framed two substantial questions of law, which read  

as under :

“(a) Whether the trial Court was right in deciding issue  no.3,  which  was  an  issue  on  defendants'  claim  of  Mundkarship in respect of the suit structures in view of  the  specific  and  express  bar  on  the  Civil  Court's  jurisdiction to decide the said issue in terms of Section  31 (2) of the Goa Daman and Diu Mundkar (Protection from  Eviction) Act, 1975.

(b) Whether the Courts below erred in granting the Order  of  mandatory  injunction  ordering  the  demolition  of  extensions identified under alphabet 'E' and 'C' and the  new structure identified under letter 'D' when the suit  for the demolition of the suit structures was barred by  law of limitation in view of the averments in the plaint.”  

As regards substantial question of law (a), the High Court  

was  not  convinced  with  the  defendants'  argument  that  the  Civil  

Court's jurisdiction was barred in terms of Section 31(2) of the  

Goa, Daman and Diu Mundkar (Protection from Eviction) Act, 1975 and  

answered the said question accordingly.

With regard to substantial question of law (b), the High  

Court was of the opinion that the suit was barred by time in respect  

of disputed structures except structure 'A'.  The High Court, in  

this regard, relied upon Article 113 of the Indian Limitation Act,  

1963, which provides a period of three years from the date right to  

sue accrues for filing a suit for which no period of limitation is  

provided elsewhere in the schedule.

C.A.No.190/2007 contdd.. : 5 :

We have already quoted above the reliefs claimed in the

suit  and  also  the  pleadings  about  construction  of  disputed  

structures.   The substantive prayer in the suit is for demolition  

of  the structures 'A', 'C', 'D' and 'E'.  There is no  article in  

the Limitation Act, 1963 that specifically provides for period of  

limitation for filing such suit.  Article 65 of the Limitation Act,  

1963  has  no  application  at  all  as  it  provides  for  a  period  of  

limitation where the suit for possession of an immovable property or  

any interest therein based on title. Since there is no specific  

Article in the schedule pertaining to the substantive relief claimed  

in the suit,  the residuary Article 113 comes into play. The plaint  

averments  leave  no  manner  of  doubt  that  structure  'D'  was  

constructed by the defendants in 1978; the structures 'C' and 'E'  

in October, 1983 while the suit for demolition of these structures  

('C',  'D'  and  'E')  has  been  filed  on  April  13,  1989,  which  is  

apparently time barred.

The view taken by the High Court is, thus, in accordance  

with law and warrants no interference.

The Civil Appeal is, accordingly, dismissed with no orders  

as to costs.

....................J. (R.M. LODHA)

....................J. (JAGDISH SINGH KHEHAR)

NEW DELHI; SEPTEMBER 28, 2011