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2009 Supreme(Bom) 1530
BOMBAY HIGH COURT AT PANAJI, GOA
R.M. SAVANT, J.
Shri Rosarinho Costa and another - Petitioners
Versus
Smt. Filomena Rodrigues E Silva and another - Respondents
Writ Petition No. 483 of 2003
Decided On : 17th November, 2009
Advocate Appeared:
Mr. Sudin Usgaonkar, Advocate, for the petitioners; Mr. S.D. Lotlikar, Senior Advocate with Mr. P. Lotlikar and Ms. G. Xettigar, Advocate, for the respondents.
The court emphasized the importance of maintaining consistent and bona fide conduct in legal proceedings and upheld the jurisdiction of the trial Court to entertain the suit.
Headnote:
Nullity - Execution Proceedings - Mundkar Act, 1975 - Section 12(a), 32 - The court discussed the jurisdiction of the Civil Court, the nullity of the decree, and the conduct of the respondent No. 1 in changing her stand to stall and defeat the decree.
Fact of the Case:
The petition arises from an order dismissing the execution application for eviction of the respondent No. 2 from a property. The respondent No. 1 claimed ownership and denied the Mundkar status of the property, leading to a civil suit for declaration of ownership and eviction.
Finding of the Court:
The court found that the trial Court had jurisdiction to entertain the suit, and the plea of nullity raised during execution was an attempt to stall and defeat the decree.
Issues: The issues involved the jurisdiction of the Civil Court, nullity of the decree, and the conduct of the respondent No. 1 in changing her stand to defeat the decree.
Ratio Decidendi: The court held that the trial Court had jurisdiction to entertain the suit, and the plea of nullity raised during execution was not bona fide.
Final Decision: The petition was allowed, and the rule was made absolute with parties to bear their respective costs.
R.M. Savant, J.
This petition arises out of an order passed in the execution proceedings filed by the petitioners who are the original plaintiffs herein for execution of the decree passed in Regular Civil Suit No. 127/82/F. By the impugned order, the said execution application filed by the petitioners has been dismissed on the ground that the decree passed in the said suit is a nullity.
2. The facts giving rise to the filing of the above petition can be stated thus :
The petitioners herein are the owners of the property known as "Madel" situated at Curtorim, Salcete, Goa, which was allotted to the petitioners by deed of partition registered before the Notary Public. In the property exists a residential house and a mundkarial house (suit a house bearing No. 1124). The said mundkarial house was in occupation of one Jose Francisco D' Silva since prior to 1977 as a Mundkar of the petitioners and after the death of the said Jose in October 1977, the respondent No. 1, herein who is the wife of the said Jose succeeded him. It appears that sometime in the year 1980, the petitioner found that the respondent No. 2. Shri Naik, was residing illegally and without authority in the said house. The petitioners further learnt that the respondent No. 1. Filomena, had started residing with her daughter at Verna. The petitioners, therefore, by their letter dated 12.8.1980, called upon the respondent No. 2 to vacate the house and handover possession to the petitioners. On failure of the respondent No. 2 to hand over possession the petitioners on 30.9.1980, 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. the respondent No. 1, has ceased to occupy the mundkarial house for more than one year. The petitioners, thereafter, received a notice from the Advocate of respondent No. 1 i.e. Filomena Rodrigues, on 25.10.1980, calling upon the petitioners not to interfere with the property of the respondent No. 1 claiming that she is the owner of the mundkarial house. In the said proceedings before the mamlatdar initiated by the petitioners for eviction of the Mundkar, the respondent No. 1 challenged the jurisdiction of the mamlatdar to try the matter on the ground that her husband, the said Jose, was the owner of the house. It appears that the said proceedings before the mamlatdar were dismissed for default and therefore the rights of the parties remained to be adjudicated.
3. The petitioners filed a suit on 19.3.1981 in the Court of the learned Civil Judge, Junior Division Salcete, against the respondent Nos. 1 and 2, inter alia, praying for two folds reliefs :
(a) Declaration that petitioners are owners of the suit house presently occupied by the respondent No. 2.
(b) Eviction of the respondent No. 2 and possession of the suit house.
In the plaint, the fact that the petitioners had approached the Authority under the Mundkar Act, 1975, was disclosed. However, it was stated that the said proceeding was pending before the mamlatdar being case bearing No. 27/80, as on the date when the said suit was filed, the said proceedings were in fact, pending and the same were dismissed for default on 27.8.1981.
4. The parties would be referred to as per their status in the suit.
5. Suffice it to say, that considering the nature of the dispute involved, the plaintiffs have admitted in the plaint that the property comprised of a mundkarial house which existed in the north eastern corner of the plaintiffs property. The plaintiffs also stated that one Anna Mariana was a Mundkar of the plaintiffs and had been residing in the dwelling house on account of the permission granted by the plaintiffs ancestors. It was further stated in the plaint that the said Anna Mariana was a Mundkar of the plaintiffs prior to late Jose Francisco D' Silva.
6. From the point of view of the present petition, what is relevant is that in the said plaint, it was stated that the plaintiff
