1998 Supreme(Bom) 334

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
J.A. Patil, J.
The Chief Officer, Margao Municipal Council another ..... Appellants.
Versus
Shri Vaman Shirgaokar (deceased) .... Respondent.
Second Appeal No. 33 of 1995, decided on 26-6-1998.
Advocates appeared:
E.P. Lobo, for the appellants.
Sudin M.S. Usgaonkar, for the respondent.

Headnote:Sections 2(1)(i), 4, 15 and 31-Justification for permanent injunction-In absence of clear cut demarcation of land as to which part of house is coming in way to construct road, a very important point is not considered by the Judge below, therefore, the judgment suffers from material irregularity resulting in failure to justice, demanding interference by the Court.-It is pertinent to note that after obtaining a declaration of his Mundkarial right, the plaintiff, has taken no steps to purchase the dwelling house. Consequently, there has been no determination or demarcation of the extent of the land to which the plaintiff as a Mundkar is entitled under Section 2(i). Without discharging his obligation of purchasing the dwelling house, the plaintiff is trying to assert his Mundkarial rights. This conduct on the part of the plaintiff is not fair. He has not come with clean hands when he is seeking an equitable relief of injunction against a public body, which in the discharge of its public duty is trying to construct a road.

       The plaintiff has, however, not done anything of this sort. On the contrary his conduct throughout the proceedings, as pointed out above, has not been fair. Therefore, he cannot claim the equitable relief of perpetual injunction. The learned Additional District Judge, who granted the decree of perpetual injunction in favour of the plaintiff has failed to take into consideration the above mentioned position. There is, therefore, a material irregularity resulting in failure of justice. Consequently, interference by this Court becomes absolutely necessary.

       Sections 2(1)(a)(b) and 32(2) Eviction from dwelling house--Cowshed-Protection against eviction from dwelling house--Jurisdiction of Civil Court-Held-Jurisdiction of Civil Court is barred under Section 31-Decree of perpetual injunction granted by Civil Court results in failure of justice.- There is, no doubt that the plaintiff, who is a Mundkar enjoys protection under the Mundkar Act against eviction from his dwelling house which includes his cowshed also. Since, the plaintiff has sought the relief of perpetual injunction against the defendant, it is for him to show that his cowshed and fencing which were destroyed by the defendants, were within the permissible limits mentioned in sub-clauses (i)(a) and (b) of the clause (i) of Section 2. Once the plaintiff proves this fact, then he is entitled to be protected so far as his dwelling house including the cowshed are concerned. In that event, the defendants even though they have acquired the land occupied by the plaintiffs cowshed under a Gift Deed cannot demolish the same in order to carry out the construction of a road.

       The question as to what is the extent of areas of the dwelling house of the plaintiff as a Mundkar and whether the fencing and cowshed of the plaintiff are within or outside the said area are essentially the question which are, under the Mundkar Act, required to be settled decided or dealt with by the Mamlatdar or the Collector. The jurisdiction of the Civil Court to decide the said question is dearly barred by Section 31(2) of the Mundkar Act. Consequently, the Civil Court cannot grant the relief of perpetual injunction to the plaintiff assuming that the cowshed and the fencing are within the area of permissible limit stated in Section 2(i)(i) of the Mundkar Act. The order of Court which granted the decree of perpetual injunction in favour of the plaintiff results in failure of justice since there is material irregularity.

       Sections 4, 5 and 9-Code of Civil Procedure, 1908, Order XXXIX, Rules 1 and 2-Injunction against demolition-Sec. 9 clearly states that rights of Mundkars in dwelling house shall not be affected by transfer of land, the plaintiff enjoys the benefit of such right and he is entitled to be protected as far as his dwelling house which includes cashed also cannot be demolished to construct a road.