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IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 218 OF 2006

Shri Rafael Fernandes

(Since deceased represented

by his legal heirs)

1. Shri Pascoal Fernandes

2. Smt. Bernadina Fernandes

3. Shri Alex Fernandes

4. Smt. Shanti Fernandes

5. Smt. Rosy Fernandes,

All r/o. H. No. 1155,

Muxiwaddo, Curtorim,

Salcete, Goa.

......

Petitioners

V e r s u s

1. Smt. Terezinha Rodrigues

2. Mr. Anthony Rodrigues

3. Mrs. Concy Anthony Rodrigues

4. Mr. Rosario Rodrigues

5. Mrs. Elida Rodrigues

6. Mrs. Sylina Rodrigues

7. Mr. Austin Rodrigues

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8. Mrs. Coinesao Rodrigues

9. Mr. Michael Rodrigues

Both r/o. Odd Bhat,

Benaulim, Salcete, Goa.

10.Mrs. Milagrina Sequeira

11.Mr. Joseph Sequeira,

Both r/o. Cormugal

Curtorim, Salcete, Goa.

12.Mrs. Rosy Fernandes

13.Mr. Seby Fernandes

Both r/o. 1^st Ward, Colva,

Salcete, Goa.

......

Respondents

Shri N. K. Sawaikar, Advocate for the Petitioners.

Shri A. F. Diniz, Advocate for Respondent no. 1.

CORAM: N. A. BRITTO, J.

DATE: 13

^th July, 2006.

ORAL JUDGMENT

Rule. By consent, rule is heard forthwith.

2.

The petitioners are the Judgment debtors in Execution

proceedings bearing no. 29/1994, arising from R.C.S. No. 293/1991/D, and

are admittedly the mundkars of the respondents. In this petition, the

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petitioners, (JDs for short), challenged the Orders dated 29.09.2005 and

13.04.2006 of the learned Civil Judge, Junior Division, Margao, in the said

Execution Proceedings. In fact, it has been submitted on behalf of the

respondents (DHs for short), that the JDs did not challenge the first Order

dated 29.09.2005, by which the learned executing Court had ordered a

Commissioner to be appointed to demarcate the area of the house

admeasuring 120 square metres and cowshed of 23 square metres and only

when by subsequent and consequential order was made appointing Shri

Moniz, a Civil Engineer, as a Commissioner, that this petition has been

preferred by the JDs. Some bare facts are required to be stated to dispose

of this petition.

3.

By Order dated 31.10.1988, the JDs were declared the

Mundkars of their dwelling house bearing no. 1155, situated in survey no.

19/1 of Village Curtorim, to the extent of 143 square metres in area i.e. 120

square metres of the house and 23 square metres of the cowshed.

4.

Subsequently, the Decree Holders filed R.C.S. no. 293/91/D,

against the JDs, which was partly decreed by the trial Court but in appeal,

was decreed in toto as a result of which the JDs were ordered to demolish

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the structures/constructions beyond the area of 120 square metres of the

house. The Judgment/Decree of the learned Civil Judge, Junior Division, in

R.C.S. no. 293/91/D, as confirmed in R.C.A. no. 38/92, has become final as

no further proceedings against the same were taken, and as a result, the

Decree Holder initiated Execution Proceedings to carry out the demolition

of the structures/constructions beyond the plinth area of the dwelling house

of the JDs, admeasuring 120 square metres as per the Decree. In the said

proceedings, that the Order dated 29.09.2005 came to be made by the

learned Civil Judge, Junior Division, in which the learned Civil Judge

ordered the appointment of a Commissioner to demarcate the said area of

the house admeasuring 120 square metres and cowshed of 23 square metres

and by the subsequent order, appointed Shri Moniz, a Civil Engineer for the

said purpose.

5.

On or about 28.06.1999, the JDs had filed an application to the

Mamlatdar, Margao, under Section 16 of the G.D.D. Mundkar (Protection

from Eviction) Act, 1975, ('Act' for short), for purchase of an area of 5

metres around their dwelling house. At this time, it is conceded that the

JDs showed the area of their dwelling house as 120 square metres and 23

square metres of their cowshed. However, the learned Mamlatdar by his

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Order dated 07.04.2004, was pleased to hold that the area of the

mundkarial dwelling house of the JDs was 210 s