Advocates:
['ADV PRASHEEN LOTLIKAR', '', 'ADV PRATIMA MADIWALAR', 'ADV JAYANT UMESH KARN', 'ADV AMIRA ABDUL RAZAQ', '', 'ADV TANYA FERREIRA']

3-SA-39-19.EDITED (1).DOC

Santosh

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 39 OF 2019

NECESSIDADE GOMES (DEC.)

THR. LRS.

….APPELLANTS.

Versus.

MOHAMMED SAYED KADER.

….RESPONDENT

Mr. S.D. Lotlikar, Senior Advocate with Ms. Sailee Keny,

Advocate for the Appellants.

Ms. Amira Abdul Razaq, Advocate for the Respondent.

CORAM :

M. S. SONAK, J.

DATE : 2

nd December 2022

ORAL ORDER: -

1.

Heard Mr S.D. Lotlikar learned Senior Advocate who

appears along with Ms Sailee Keny for the Appellants and Ms

Amira Razaq for the Respondent.

2.

This second Appeal challenges the concurrent decrees

made by the Trial Court, and the First Appellate Court dated

29/9/2017 and 24/10/2018, respectively. Accordingly, both the

Courts have injuncted the Appellants-Defendant from interfering

with the suit property described in the plaint as Plot No.62,

situated in Chalta No.1 of P.T. Sheet No.118 of City Survey of

Margao.

Page 1 of 8

02/12/22

3-SA-39-19.EDITED (1).DOC

3.

Mr Lotlikar submits that the two Courts have travelled

beyond the pleadings and the case set out by the

Respondent/Plaintiff before the Trial Court. He submitted that

the Appellants were declared as the mundkars in respect of their

dwelling house, which includes the property totally admeasuring

200 sq. meters. He submits that the Survey Authorities have

confirmed the Appellants' possession over an area of 218 sq.

meters. He submits that both the Courts have not recorded a

clear finding that the area of 200 sq. meters purchased by the

Appellants or the 218 sq. meter in possession of the Appellants

does not overlap the suit plot No.62. He submits that in the

absence of any such clear finding being recorded by both the

Courts, version about such overlap, should have been accepted.

He submits that the Respondent-Plaintiff claims right and title

based only on the sub-division plan. In contrast, the Appellants

claim right and possession under the provisions of the Mundkar

Act, and such a right or possession would, therefore, have a

statutory primacy over some private document between the

developer and the Plaintiff. He submits that since the two Courts

have not considered these vital aspects, the decrees, though

concurrent, are required to be set aside.

Page 2 of 8

02/12/22

3-SA-39-19.EDITED (1).DOC

4.

Mr Lotlikar proposes the following substantial questions of

law which, according to him, arise in this Appeal:

1. Whether the Impugned Judgments and Decrees passed

by the Courts are vitiated having been passed on the basis

of a case not pleaded in the plaint and by letting in

evidence which was beyond pleading?

2. Could the Courts below have granted to the Plaintiff a

permanent injunction without recording a clear finding of

possession in favour of Plaintiff/Respondent, particularly

in the face of confirmation of an area of 218 sq. mtrs in

favour of the Appellants in the city survey records?

3. Whether the finding on the cause of action in favour of

the Respondent is perverse in view of the pleadings in the

plaint and based on misreading of evidence?

4. Whether in view of absence of clear plea that the area of

200 sq mtrs purchased by the Appellants under the

Mundkar Act did not clash with the suit plot by the

Plaintiff, the suit of the Plaintiff could be decreed?

5.

Ms. Razaq submits that the questions which are now

proposed, are not even questions of law, much less substantial

questions of law. She points out that initially, the Appellants

sought to purchase an area of 262 sq. metres based on a plan

Page 3 of 8

02/12/22

3-SA-39-19.EDITED (1).DOC

submitted before the Mamlatdar in mundkarial proceedings. The

Mamlatdar permitted them to do so. By Judgment and Order

dated 23/8/1999, however, this order was set aside in Appeal by

the Deputy Collector. Ultimately, the Appellants were restricted

to an area of only 200 sq. meters, which is even otherwise the

entitlement under the Mundkar Act. She submits that out of this

ar