IMPORTANT POINT
Suit dismissed for default – Cannot operate as res judicata.

JUDGMENT

Pinaki Chandra Ghose, J. –

1. Leave granted.

2. This appeal has been filed by the appellant challenging the order passed by the High Court wherein the High Court was pleased to set aside the order passed by the Executing Court in connection with an execution application. The Executing Court held that the decree passed by the Civil Court was without any jurisdiction and thereby it is a nullity and accordingly dismissed the said execution proceedings.

3. The facts revealed in this case are that respondent Nos.1 and 2 are the owners of the property known as “Madel” situated at Curtorim, Salcete, Goa, which was allotted to them by a Deed of Partition registered before the Notary Public. In the property exists a residential house and a mundkarial house (suit house bearing No. 1124). The said mundkarial house was in occupation of one Jose Francisco D’Silva (hereinafter referred to as ‘Jose’) prior to 1977 as a Mundkar of respondent Nos.1 and 2 and after the death of said Jose in October, 1977, the original defendant No.1 – Mrs. Filomena - who is the wife of said Jose, succeeded him. It appears that in the year 1980, respondent Nos.1 and 2 found that respondent No.7 (Shri Naik, being original defendant No.2) was residing illegally and without authority in the suit house. Respondent Nos.1 and 2 further learnt that the original defendant No.1 (Mrs. Filomena) had started residing with her daughter at Verna. Respondent Nos.1 and 2, therefore, by a letter dated 12th August, 1980, called upon original defendant No.2 (Shri Naik) therein to vacate the said house and hand over possession to the respondent Nos. 1 and 2.

4. On failure of original defendant No.2 to hand over possession, respondent Nos.1 and 2, on 30th September, 1980 filed an application bearing No.27/80 for eviction of the Mundkar in the Court of the Mamlatdar, Margao, Salcete, on the ground that Mrs. Filomena Rodrigues, i.e., original defendant No.1, has ceased to occupy the mundkarial house for more than one year. The respondent Nos. 1 and 2 received a notice from the Advocate of the original defendant No.1 dated 25th October, 1980, calling upon them not to interfere with the property of defendant No.1, claiming that she is the owner of the mundkarial house. In the said proceedings before the Mamlatdar initiated by respondent Nos. 1 and 2 for eviction of the Mundkar, defendant No.1 challenged the jurisdiction of the Mamlatdar to try the matter on the ground that her husband was the owner of the house. It appears that the said proceedings before the Mamlatdar were dismissed for default and, thus, the rights of the parties remained to be adjudicated.

5. On 19th March, 1981 the plaintiffs, being respondent Nos.1 and 2 herein, filed a suit in the Court of Civil Judge, Junior Division, Salcete, being Regular Civil Suit No.127/81/F against defendant No.1 (Mrs. Filomena) and defendant No.2 (Shri Naik), inter alia, for the following reliefs :

(i) Declaration that plaintiffs are owners of the suit house presently occupied by defendant No.2; and

(ii) Eviction of defendant No.2 and possession of the suit house.

6. It is admitted by respondent Nos.1 and 2 in the plaint that the property comprised of a mundkarial house which existed in the North-Eastern corner of the plaintiffs’/respondents’ property. It is further stated that one Anna Mariana was the Mundkar of the plaintiffs and had been residing in the dwelling house on being permitted by the plaintiffs’ ancestors. Said Anna Mariana was a Mundkar of the plaintiffs prior to Jose. Admittedly, defendant No.1 (Mrs. Filomena) denied the plaintiffs’ ownership of the said suit house and claimed that she is the owner of the same in the Mundkar’s case which was pending before the Mamlatdar of Salcete. The said suit was contested by defendant No.1 by filing written statement and it is further to be noted that defendant No.1 claimed title by prescription as well as by way of adverse possession. In these circumstances, the trial court framed t