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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
R.M.S. Khandeparkar, J.
Shri Peter Fernandes (deceased)
through his legal heirs ..... Appellants.
Versus
Smt. Luizinha Pereira others .... Respondents.
Second Appeal No. 20 of 1994, decided on 21-1-1998.
Advocates appeared :
E.P. Lobo, for the appellants.
V.P. Thali, for the respondents.
Sections 2(1), 15, 16, 31 and 32 Dwelling house-Mundkars right-Dispute between two Mundkars of same Bhatkar-Encroachment by raising construction within 5 meters of house-Extent of-Jurisdiction-Held-Extent and location of area around dwelling house has to be decided by Mamlatdar only-Further right to occupy 5 meters area around can be claimed only by purchase of such land under Sections 15 and 16 of Act.-Upon hearing the parties and on perusal of the materials on record, it is seen that the lower Appellate Court has dearly held that it is undisputed fact that the competent authority under the Mundkar Act has whether demarcated or determined the area to which the appellant is entitled to as a Mundkar under the Mundkar Act and being so, the suit itself is premature. In fact the lower Appellate Court is justified in arriving at such finding. Section 2(i) of the Mundkar Act dearly defines the dwelling house. It provides that the land on which the dwelling house is situated and the land around or appurtenant to the house to the extent of 5 metres in villages and to the extent of 2 metres in cities can be claimed as a part of the dwelling house by a Mundkar by exercising his option under Section 15 of the Mundkar Act. The definition of the dwelling house in Section 2(i) does not, by itself, create any right in the land around the house in favour of the Mundkar occupying such house. The right assured under the said provision is to the extent that the Mundkar can opt for the purchase of an area to the extent of 5 metres around or appurtenant to the house in villages and 2 metres around or appurtenant to the house in cities or 300 metres in total in villages and 200 metres in total in cities. Beyond the said option assured to the Mundkar for the purpose of purchase of the house in occupation of the Mundkar, the definition of the term dwelling house by itself does not create any right or interest in the land around or appurtenant to the house in favour of Mundkar. As to the exact extent and the location of this area around the dwelling house, the same has necessarily to be decided by the Mamlatdar. Such a question will necessary be an issue to be decided by the Mamlatdar under Section 8-A read with Sections 15 and 2(i) of the Mundkar Act and the jurisdiction of the Civil Court to decide such issue would stand excluded in view of the specific provision to that effect in Section 31(20 of the Mundkar Act. Once, it is not disputed that the Mamlatdar of the competent authority under the Mundkar Act has not decided the extent i.e., the exact area and the location of the dwelling house of the appellant, it is too premature for the appellant to complain about violation of any of the right of a Mundkar in occupation of his house in relation to any area around or appurtenant to his house by a stranger. Such a right can be claimed only after exercise of the option and purchase of such area around or appurtenant to his house by a Mundkar in terms of Sections 15 and 16 of the Mundkar Act. Unless the rights of a Mundkar in terms of Section 15 are exercised and confirmed in terms of the provisions contained in Section 16 of the Mundkar Act, a Mundkar cannot claim violation of any of his alleged rights in respect of such area around of appurtenant to the house in his occupation. It is so because, till the Mamlatdar decides the extent of the dwelling house after the Mundkar exercises his option under the Mundkar Act, the right to such area is not conveyed in favour of the Mundkar. Unless the title or ownership righ ts in respect of such area around the house is conveyed in favour of a Mundkar, he cannot complain of any violation of his alleged right which he has not yet lawfully acquired. No doubt, till the rights over such area are acquired by a Mundkar, the rights which relate to the house in his occupation are wholly safeguarded by other provisions in the Mundkar Act.
2.The facts, in brief, relevant for the decision are that the appellant claiming to be a mundkar in respect of a house situated in a property bearing Survey No. 36/7 in the village of Sanvordem, filed a civil suit for mandatory injunction against the respondents for demolition of a structure stated to have been erected by the respondents at a distance of 2 metres from the house of the appellant and, therefore, complaining of violation of mundkarial rights of the appellants. According to the appellant, he being the mundkar is entitled for five metres of land around the outer wall of the house in terms of the definition of the term "dwelling house" under the Mundkar Act and the construction having been done at the distance of 2 metres, it encroaches upon the dwelling house of the appellant. There is no dispute between the mundkar and the bhatkar and it is the dispute between the two mundkars. The appellant prayed for permanent injunction to restrain the respondent from carrying on or extending the suit structure in any manner as well as from running distillary in the suit structure and diverting the waste water of the distillary towards the house of the appellants. The trial Court, vide its judgment and decree dated 17-9-88 partly decreed the suit and ordered the respondents by way of mandatory injunction to demolish the suit structure to the extent of 1 metre from the outer wall of the appellant's house and further restrained the respondents by way of permanent injunction from diverting the waste water of the distillary towards the appellant's house and further restrained the respondents from extending the suit structure towards the appellant's house.
3.Being aggrieved by the partial decree granted in favour of the appellants, the appellants preferred appeal being Regular Civil Appeal No. 57/88 which was heard and disposed of by the Addl. District Judge, South Goa, at Margao by impugned judgment and decree dated 11-7-1994. By impugned judgment and decree, the appeal was dismissed and the order of the trial Court was confirmed. However, while dismissing the appeal, the lower Appellate Court held that the Civil Court has no jurisdiction to determine the extent of the area to which the appellant is entitled to under the Mundkar Act.
4.While assailing the impugned judgment and order Shri E.P. Lobo, learned Advocate appearing on behalf of the appellants submitted that there is no dispute that the mundkar is entitled for an area of 5 meters from the outer wall of the dwelling house and, as such, the lower Appellate Court should not have held that the Civil Court has no jurisdiction to decide about the extent of area to which a mundkar is entitled to. According to the learned Advocate, the lower Appellate Court erred in holding that the Civil Court had no jurisdiction to determine the extent of area to which the appellant is entitled to and more particularly when both the parties to the litigation were mundkars. According to the learned Advocate, it is a dispute between the two mundkars and not a dispute between the mundkars and the bhatkar. According to the learned Advocate, the jurisdiction of the Civil Court is barred only in case where there is dispute between a bhatkar and a mundkar and this being the dispute between two mundkars, there is no issue to be decided under the Mundkar Act by the Mamlatdar and in that view of the matter, the lower Appellate Court erred in
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