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IN THE HIGH COURT OF BOMBAY AT GOA
F.M. REIS, J.
Miss Aura Serafina Crispina de Souza & Another
Versus
Vitorino Mendonca & Another
Writ Petition No. 151 of 2012
Decided on: 27-09-2013
GOA, DAMAN AND DIU MUNDKARS (PROTECTION FROM EVICTION) ACT, 1975 - Section 32 - Suit for eviction. - Where respondent himself deleted plea of mundkarship from written statement therefore in execution proceedings of eviction decree, plea of mundkar ship cannot be reopened by respondent. - In terms of the provisions of Section 32 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 the Civil Court stayed the suit and referred such issue to the Mamlatdar for determination. It appears that it was accepted that as the proceedings were already initiated by the respondent No. 1 to establish such claim, the issue referred would be answered on the basis of such determination. While dispose of the suit by judgment and decree dated 28.9.2000, the Judge recorded that the said issue has been disposed of in view of the findings rendered by this Court in Writ Petition No. 236 of 1999 on 6.9.1999. The said order was passed by this Court while disposing of the petition filed by the respondent No. 1 challenging the findings of the authorities below namely the Mamlatdar and the Administrative Tribunal rejecting his claim that he was a mundkar of the suit house. Section 32(2) of the Mundkar Act provides that on receipt of such reference from the Civil Court, the Mamlatdar or the Collector shall deal with and decide such issues in accordance with the provisions of the Act and shall communicate his decision to the Civil Court and such Court shall thereupon decide the suit in accordance with the procedure applicable thereof. This communication is found endorsed in the judgment of the Joint Mamlatdar dated 31.8.1987, a copy of which was submitted to the Civil Court in response to such reference. Section 31(2) of the Mundkar Act further provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under the Act required to be settled, decide or dealt with or to be determined by the Mamlatdar or the Collector or the Government or the Administrative Tribunal and no order passed by such authority under this Act shall be questioned in any Civil or Criminal Court. As such, as far as the Civil Court is concerned, in view of the order passed in the reference made by the Judge, the findings with regard to issue No. 8 stands concluded and it is not open to the Civil Court now to anyway question the correctness of the said findings. The law clearly provides that the Civil Court has to proceed with the suit on receipt of such reference as per the procedure thereto. Even in the present case, the respondent No. 1 himself accepted the said position and moved the said application for amendment of the written statement inter alia deleting the claim that he was a mundkar of the suit house and went to the extent of even mentioning that the plea of mundkarship does not survive in view of the judgment of the Mamlatdar confirmed by the higher Court. As such, it is not open to the respondent No. 1 to try to delay the proceedings by reopening such plea in the civil proceedings.
It would also be appropriate to record some of the observations of this Court while deciding the said second appeal. This Court inter alila had framed a substantial question of law as to whether in view of the categorical finding of the competent Court under the Mundkar Act, while determining the issue of mundkarship which was remitted to them for decision in view of the exclusive jurisdiction of the said authorities to decide the same, that the respondent was not a mundkar because he was caretaker of the suit house, it was permissible for the Civil Court to entertain a plea of adverse possession on the part of the respondent herein? At para 20 of the said judgment, this Court has further observed that "In my view, once it was held by the Mamlatdar, a Court of competent jurisdiction that the defendant was not a mundkar but was a caretaker and in the absence of any other plea having been taken by the defendant, defendant had no other straw to hold on to the suit house/property. In other words, the defendant had no other status to continue in occupation of the suit house property against the wishes of the plaintiffs who had become the owners of the house/property pursuant to the said gift deed".
1. Heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the Petitioners and Shri J. Vaz, learned Counsel appearing for the Respondent no. 1.
2. The above Writ Petition, inter alia, seeks to quash and set aside by a writ of certoriari or any other writ or direction, the Order dated 05.08.2011, passed by the learned Civil Judge, Senior Division, at Mapusa, in Execution Application No. 3/05/B.
3. Briefly, the facts of the case as stated by the Petitioners are that the Petitioner, who is the owner of a property bearing survey no. 311/3, situated at Anjuna Village, filed a suit in the Court of the learned Civil Judge, Senior Division, Mapusa, against the Respondent no. 1 seeking eviction of the house bearing no. 513, situated in the said property.
4. Upon service of summons, the Respondent no. 1 filed the written statement and opposed the said suit. On the basis of the pleadings of the parties, the learned Judge framed several issues one of them being as to whether the Respondent no. 1 proves that he is residing as a Mundkar in the suit house. As the Respondent no. 1 had already initiated proceedings before the learned Mamlatdar to claim to be a Mundkar, the trial of the suit came to be stayed and the said issue was referred to the Mamlatdar for adjudication. The application filed by the Respondent no. 1 was dismissed by the learned Joint Mamlatdar by Order dated 31.08.1987 holding that the Respondent no. 1 was not a Mundkar in respect of the said house. An Appeal was preferred by the Respondent no. 1 challenging the Order of the Joint Mamlatdar which also came to be dismissed on 24.09.1998. Thereafter, Respondent no. 1 filed a Writ Petition before this Court challenging the Order of the Administrative Tribunal being Writ Petition no. 236 of 1999, which came to be dismissed by Order dated 06.09.1999. A Latter's Patent Appeal preferred challenging the Order of the learned Single Judge also came to be dismissed. Hence, the plea of the mundkarship was ultimately rejected. The Respondent no. 1 thereafter filed an application for amendment of the written statement, inter alia, seeking to delete the plea that he was occupying the said house as mundkar from the written statement and to add a plea that he was in open, exclusive and uninterrupted possession of the suit house since the year 1959 and, therefore, had become owner by adverse possession. The amendment application filed by the Respondent no. 1 was dismissed by Order dated 21.09.2000. In the Appeal filed by the Respondent no. 1 challenging the Decree of eviction passed by the learned Trial Court, the Respondent no.1 challenged the Order dismissing the application for amendment. The learned Appellate Court allowed the said amendment and permitted the Respondent no.1 to also raise the plea of adverse possession. Based on the available evidence on record, the Lower Appellate Court allowed the Appeal preferred by the Respondent no.1 and set aside the Judgment and Decree passed by the learned Trial Court. Aggrieved by the said judgment, the Petitioners preferred a Second Appeal before this Court being Second Appeal no. 44 of 2002, which came to be admitted and ultimately allowed by Judgment and Decree dated 02.12.2004. Consequently, the suit filed by the Petitioners came to be decreed. Subsequently, the Petitioners preferred an application for execution of the Judgment and Decree being Execution Application no. 3/05. The said execution was allowed by the Executing Court by its Order dated 24.03.2009 and the contention of the Respondent no. 1 opposing the said Execution Application, came to be rejected. Being aggrieved by the said Order, the Respondent no. 1 filed an appeal before the learned District Judge, being Regular Civil Appeal no. 45/2009, which also was dismissed by Judgment and Order dated 28.07.2009. The Respondent no. 1 filed an application for stay of the execution proceedings in which he contended that he has filed an application under Section 8-A read
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