JUDGMENT - R.M.S. KHANDEPARKAR, J.:---This petition arises from the Order dated 11-8-98 passed by the second learned Additional District Judge at Panaji in Regular Civil Appeal No. 45/97. By the impugned order, the lower Appellate Court has allowed the application dated 4th November, 1997 filed by the respondent for amendment of the written statement of the respondent in Regular Civil Suit No. 241/88/B.

2. The facts in brief relevant for decision are that the petitioner herein filed Regular Civil Suit No. 241/88/B in the Civil Court, J.D., Panaji on 26-8-1988 for declaration that the respondent has no right of whatsoever nature to the suit house and that he is a trespasser and therefore for his eviction from the suit house. The suit house is situated in the property called 'Mitra' situated at St. Inez within the limits of Panaji Municipal Council and is owned by the petitioner. The case of the petitioner was that one Miss Fernanda Amaral was allowed to reside in the suit house during her lifetime. The said Fernanda expired on 14-5-1988. During her lifetime said Fernanda out of her free will had executed a declaration dated 4-2-1987 to the effect that the suit house was exclusively belonging to the petitioner; that she was occupying the same with the permission of the petitioner with no right of whatsoever nature thereto and that on her death the petitioner would be entitled to take over the suit house. On the death of said Fernanda, the petitioner's representative went to the suit house on 16th May, 1998 in order to lock the same and that time he found the respondent occupying the suit house who, on being requested, refused to leave the same.

3. The respondent while denying the case of the petitioner, disputed the genuineness of the declaration dated 4-2-1987 on the ground that the said document was a fake document. It was his further case that he had been residing in the suit house along with said Fernanda since 1975 with the consent and knowledge of the petitioner. It is further his case that even the funeral rites of the said Fernanda were done by the respondent and he was maintaining and looking after the said Fernanda since 1985 and that therefore the petitioner has no right to evict the respondent from the suit house.

4. The trial Court after hearing the parties and on analysis of the evidence produced by the parties, decreed the suit by the judgment and decree dated 25th June, 1997.

5. Aggrieved by the said decree, the respondent preferred appeal to the lower Appellate Court. During the pendency of the appeal, the respondent filed an application seeking to amend the written statement by introducing 12-A therein as under:---

"12-A The defendant says that as he along with his family are residing in the suit house since the year 1975 with the knowledge and consent of the plaintiff, the defendant is a mundkar within the meaning of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 and therefore this Hon'ble Court is not having jurisdiction to entertain and try the suit."

Simultaneously, the respondent also sought to add an additional ground to the Memo of Appeal as under:---

"(kk) The learned trial Judge had no jurisdiction to pass the decree for eviction against the appellant as he is occupying the suit house as a Mundkar under the Goa, Daman Diu Mundkars (Protection from Eviction) Act, 1975."

The lower Appellate Court after hearing the parties, by the impugned order, allowed the application filed by the respondent and permitted the respondent to amend the written statement. In short, the lower Appellate Court by granting amendment to the written statement has permitted the respondent to raise the plea of mundkarship under the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, hereinafter called as 'The said Act'.

6. Shri J.P. Mulgaonkar, learned Advocate appearing for the petitioner, while assailing the impugned order, stated that the respondent in the written statement had clearly submitted that

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