Claims of mundkarship must be substantiated and cannot delay execution proceedings if not directly related.

JUDGMENT :

Bharat P. Deshpande, J.

1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties.

2. Both these Petitions are taken up together for arguments and disposal with the consent of the parties since the same are connected.

3. Heard learned Counsel Mr. Abhijeet Gosavi appearing with Mr. Amay Phadte, Mr. Guruprasad Naik and Mr. Austin D'Souza for the Petitioners, Mr. Jatin Ramaiya with Mr. Omkar Thakur for Respondent No. 1 and Mr. Kapil Kerkar for Respondent Nos. 2 and 3, in both these Petitions.

4. Writ Petition No. 611 of 2023 is filed challenging the order passed by the learned Executing Court dated 06.09.2023 thereby refusing to stay the execution proceedings.

5. The Petitioners are the Objectors in Special Execution Application No. 13/2017/B, who filed an Application under Order XXI, Rule 97, 99 and 101 of CPC thereby claiming that the Petitioners have right, title and interest in the suit property as Mundkars and since a Petition is filed for declaration of Mundkar before the Mamlatdar, the execution be stayed.

6. In order to understand the matter, it is necessary to disclose a few facts. A property exists in the village Calangute bearing Survey No. 362/10-B having a dwelling house bearing No. E-4/133-C. Respondent No. 1-M/s Kay Jay Constructions Company Private Limited filed a suit against Respondent Nos. 2 and 3 namely, Maria Pinto and Bernard Pinto bearing Special Civil Suit No. 3/2010 claiming specific performance of a contract.

7. Respondent No. 2-Maria Pinto and Respondent No. 3-Bernard Pinto executed a Memorandum of Understanding (MoU) whereby they agreed to sell the property to M/s Kay Jay Constructions Company Private Limited for the amount mentioned therein. The said Special Civil Suit was decreed on filing the consent terms between Respondent Nos. 1, 2 and 3 vide decree dated 09.09.2010. Since Respondent Nos. 2 and 3 failed to convey the title and possession of the suit property, Respondent No. 1 filed Execution Proceedings No. 13/2017 before the learned Trial Court, which is still pending.

8. The Petitioners claiming to be the brothers of Maria Pinto and Bernard Pinto [Respondent Nos. 2 to 3], approached the learned Mamlatdar by filing an Application for declaration of mundkarship, which is registered as Mundkarial Case No. 6/2018. The learned Mamlatdar passed an ex-parte order thereby restraining the Respondents therein from creating any third party interest. The said mundkarial proceedings are filed by the Petitioners against Jose Fernandes and others including Maria Pinto and Bernard Pinto. In the said Application for declaration of mundkarship filed before the Mamlatdar, it is claimed that the name of Roque alias Roquim Pereira i.e father of the Petitioners is recorded in other rights column of survey holding as Mundkar of House No. E-4/133 with one well. It is further claimed that said Roque Pereira and his wife Maria e D'souza e Pereira are survived by Respondent Nos. 2 and 3 therein as well as the present Petitioners. The Petitioners claimed mundkarial rights in the said house on the basis of inheritance. The Application further states that Respondent Nos. 1 to 5 are the landlords whereas Respondent Nos. 6 to 19 are the other legal heirs having right in the suit house along with the Petitioners.

9. After filing such mundkarial proceedings, the Petitioners moved an Application before the Executing Court by way of an objection under Order XXI, Rule 97 of CPC claiming that since the mundkarial issue is pending before the Mamlatdar, the execution proceedings be stayed.

10. The learned Trial Court by the impugned order, rejected such an Application on the ground that since the pleadings in the mundkarial Application and the fact that the grounds in the execution proceedings are not tallying with each other, therefore, there is no need for staying the execution proceedings. The learned Trial Court observed that the sale deed dated 29.08.1996 shows that Judgment D