M S Sonak,J. - (1.) Heard Mr. N. Sardessai, learned Senior Advocate with Ms. Gautami Kamat for the Appellant and Mr. R. G. Ramani, learned Senior Advocate with Mr. S. Sardessai for Respondent Nos. 1 and 2.
(2.) Having regard to the orders made on 13th December 2012 and 5th February 2021, this Second Appeal involves the following substantial questions of law :- (i) Whether the impugned order suffers from non-application of mind in as much as it holds that the Respondents' structure could not be ordered to be demolished for lack of details in the plaint and the report, when the pleadings on record complied with the provisions of Order VII Rule 3 Code of Civil Procedure and the evidence on record clearly demonstrated that the set back line is a straight line from the common boundary, thus evidencing the portion to be demolished ? (ii) Whether the appellant who is the neighbour of the respondent can get a relief of permanent/mandatory injunction by merely establishing that there is breach of the requisite set backs under Section 38 and 39 of the Specific Relief Act ? (iii) Whether the Learned Appellate Court committed gross illegality by reversing the Decree for mandatory injunction, as granted by the Learned Trial Court, merely on grounds of delay and laches in the absence of any finding that the delay had led to inviting the bar of limitation ? (iv) Whether an adjoining owner has a right to seek demolition of the disputed structure on the ground that it has no licence from the statutory Authority ?
(3.) The Appellant is the original Plaintiff and the Respondents are the original Defendants in Regular Civil Suit No. 153/2004/II instituted in the Court of 2nd Additional Civil Judge Senior Division at Margao seeking the following substantive reliefs: (a) By way of a decree of permanent injunction, the defendant 1 and 2, his family members, agents and servants, or whosoever be restrained from carrying out any construction within 3 mts. setback area of the said property of the Plaintiff and his family; (b) The defendants 1, 2 and 3 be directed to demolish the part of the house as shown in the plan of the engineer attached and marked as inadequate setback it being illegal due to not keeping the said proper setback, within ten (10) days. Failure to comply with the same within the stipulated time of ten days, the Collector as executive authority of the district be ordered to demolish the same. ;