The extent of the dwelling house under the Mundkar Act must be established by the competent authority, and the Civil Court cannot grant relief based on this without such establishment.

1. Heard Mr. A. D'Silva, learned counsel appearing for the appellants and Mr. M. Viegas, learned counsel appearing for the respondent.

2. The above appeal came to be admitted on the following substantial questions of law.

1. Whether both the Courts grossly erred in holding that the suit toilet is illegal despite of the right provided to the Mamlatdar to maintain, repair, improve or reconstruct the dwelling house and the explanation of the term 'improve' includes construction within the dwelling house like sump tank or overhead tank, water cistern, bathroom, toilet, septic tank, soak pit and the like subject to obtaining necessary permission from the concerned Authorities under Section 7 of Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975?

2. Whether the Courts below having framed the issue of maintainability of the suit exceeded their jurisdiction in determining the issue without first referring the same to the Mamlatdar under Section 32 of the Goa Mundkars (Protection from Eviction) Act, 1975?

3. Mr. D'Silva, learned counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that the appellant no.1 has put up a sulabh toilet within the dwelling house which according to him is permissible in view of the explanation to Section 7 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (herein after referred to as "the Mundkar Act"). The learned counsel pointed out that in terms of the Mundkar Act, the appellants are entitled to re-construct, repair and improve the existing dwelling house and the explanation clearly provides even for putting up a toilet would come within the ambit of Section 7 of the Mundkar Act. The learned counsel further pointed out that as the appellants themselves have put up a construction of the toilet, the question of directing the appellants to demolish the said construction would not arise. The learned counsel thereafter has taken me through the provisions of Section 7 of the Mundkar Act and pointed out that the appellants being mundkars are entitled to exercise their rights as stipulated therein. The learned counsel has thereafter taken me through the impugned judgments passed by the Courts below and pointed out that the Courts below have erroneously come to the conclusion that the appellants are not entitled to retain the toilet as it is beyond the mundkar area. The learned counsel as such points out that the substantial questions of law framed by this Court be answered in favour of the appellants. The learned counsel further pointed out that the respondent has failed to identify the disputed structure and as such on the basis of such vague pleadings the question of granting the relief by the Courts below is not at all justified.

4. On the other hand, Mr. M. Viegas, learned counsel appearing for the respondent has supported the impugned judgment. The learned counsel has pointed out that the respondent is the owner of the property and in exercise of her proprietary right she is always entitled to get the demolition of any new construction put up in the disputed property. The learned counsel further pointed out that the question of invoking the explanation to Section 7 of the Mundkar Act would not arise at all in the present case as admittedly the dwelling house has not been specified by the competent authority. The learned counsel further pointed out that unless and until the appellants have purchased the dwelling house in terms of said Mundkar Act, the question of exercising such right as provided in Section 7 of the Mundkar Act would not arise. In support of his submissions, he has relied upon the judgment of the learned Single Judge of this Court reported in 1998(1) Goa L.T. 449 in the case of Shri Peter Fernandes (deceased ) V/s Smt. Luizinha Pereira and others. The learned counsel further pointed out that the question of identity was not even disputed by the appellants and as such the question of raising such