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2018 Supreme(Bom) 2692
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
C.V. Bhadang, J.
Pramila Prabhakar Arlekar - Appellant
Versus
Antonieta Adelina Temudo - Respondent
Writ Petition No. 329 of 2018
Decided On : 17-12-2018
Shivan Desai, Adv., J.E. Coelho Pereira, Adv., V. Korgaonkar, Adv.
The decision on the mundkarial issue, once confirmed in appeal and attaining finality, bars subsequent attempts to claim independent mundkarship rights in the same property.
Headnote:
Mundkarship - Eviction - Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 - Section 6, 8A
Fact of the Case:
The late parents of the respondents filed a suit for eviction and possession of a house against the fifth respondent, who raised a plea of mundkarship. The trial court decreed the suit, and the respondents sought execution of the decree. The petitioners then filed an application under the Mundkar Act seeking a declaration as mundkars of the house and an injunction against interference with their possession.
Finding of the Court:
The court held that the mundkarial issue had already been decided by the competent authority and confirmed in appeal, and the petitioners' claim was an attempt to get over the effect of the final decree. The court dismissed the petition, stating that the decree and the order on the mundkarial issue had attained finality, and no case for interference was made out.
Issues: The main issue was whether the petitioners could claim independent mundkarship rights in the suit house after the decree and the order on the mundkarial issue had attained finality.
Ratio Decidendi: The court emphasized that the decision on the mundkarial issue had already been confirmed in appeal and had attained finality, and the petitioners' claim was an attempt to prolong the execution of the decree.
Final Decision: The petition was dismissed with no order as to costs.
JUDGMENT
C. V. Bhadang, J. - Rule returnable forthwith.
The learned counsel for the respondent nos.1 to 4 waives service.
Heard finally by consent of parties.
2. It is easier to obtain a decree, than to get it executed.
3. The late parents of the respondent nos. 1 to 4 (decree holders) filed Regular Civil Suit No.84/1998 against the fifth respondent, for eviction and possession of a house bearing no.407/A (Old House no. 407) situated in survey no. 4/7 at Calangute, Bardez, Goa. The fifth respondent, who was the defendant, in the suit, raised a plea of mundkarship. The trial court framed an appropriate issue and it was referred to the Court of Mamlatar at Mapusa. The case made out by the fifth respondent was that he was a mundkar in respect of the suit house, in which he was residing along with his family members. The petitioners herein happen to be the wife and the daughter of the fifth respondent.
4. The learned Mamlatdar decided the issue in the negative on 31/12/1990 holding that the fifth respondent was not the mundkar of the suit house. The fifth respondent unsuccessfully challenged the said order initially before the Additional Collector and thereafter before the Administrative Tribunal, in Mundkar Revision application no.73/2000, which was dismissed on 12/2/2014.
5. After the Mamlatdar decided the issue in the negative, the civil court took up the trial of the suit and the suit was eventually decreed on 6/10/2001 directing the fifth respondent to hand over the vacant possession of the suit house to the decree holders and to demolish the illegal structures constructed by him. It is a matter of record that the fifth respondent challenged the same before the learned District Judge in Regular Civil Appeal no.139/2001 which was dismissed on 30/9/2016 and thereafter before this Court in Second Appeal no.29/2017, which was dismissed on 3/3/2017.
6. After the trial court decreed the suit the decree holders are seeking the execution of the said decree in Execution Application no.58/2002/C, that is, for about sixteen years now. (Normally this should have laid to rest all the contentions and the available challenges). However, the petitioners herein approached the Mamlatdar in the year 2014 after the revision application filed by the fifth respondent challenging the decision on the mundkarial issue was dismissed. That application is filed purportedly under section 6 and 8A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (Mundkar Act, for short). The petitioners are seeking a declaration that the petitioners "or either of them are mundkars of the suit dwelling house" and for injunction restraining the respondents or anybody on their behalf from interfering with their possession of the suit house. It may be mentioned that the said application is filed against the respondent nos.2 to 5 and one Pravin Arlekar, who happens to be the son of the petitioner no.1 and the fifth respondent and the brother of the petitioner no.2. It is contended that the fifth respondent has left the house on account of his mental illness about ten years back and Pravin Arlekar was acting as his dully constituted attorney. It is contended that Pravin Arlekar has conspired with the decree holders and they are trying to evict the petitioners.
7. It appears that the learned Mamlatdar passed the following ad interim ex parte order on 12/1/2015. (The order is produced verbatim):
12.1.2015
Adv. for the Applicants present.
Adv. for Opp. Nos.4 and 5 present.
Adv. for the Applicants stated that Opp. No.1 to 3 are in collusion with Opponent no.4 and therefore status quo may be granted. Status quo so therefore granted against Opp. no.1 to 3 this should not come the house of Applicants until further orders. Applicants to get the from address on record and concerned clerk to issue the notices. Adv. For Opp. no.4 & 5 to file their reply on next date.
Matter fixed for hearing on 22/1/2015 at 10.30a.m.
The respondents/decree holders have appeared in th
