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IN THE HIGH COURT OF BOMBAY AT GOA

LETTERS PATENT APPEAL NO. 7 OF 2012

SHREE NAGESH V. BODKE

Son of Late Vitthal Bodke, 54

years of age, resident of House No.

427,

Gaulem

Bhat,

Chimbel,

Tiswadi – Goa.

….. Appellant

V e r s u s

1

Shri Vassudev R. Poi

Son of late Ramchandre Poi,

of full age, resident of House No. 109,

Bhutem Bhat, Merces, Tiswadi - Goa

2

Shri Vinayak R. Poi

son of late Ramchandre Poi, of full age,

C/o. Ramnath Electricals opposite St.

Inez Church,

Santa – Inez, Panaji - Goa

….. Respondents.

Mr. V. A. Lawande, Advocate for the Appellant.

CORAM : A. P. LAVANDE &

U. V. BAKRE, JJ.

RESERVED ON : 26

^th November,2012.

PRONOUNCED ON : 4 ^th December,2012.

ORDER: (PER U. V. BAKRE,J):

Heard Mr. V. A. Lawande, learned Advocate appearing

for the appellant.

2.

This Letters Patent Appeal is directed against the

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judgment dated 07^th August, 2012 passed by the learned Single

Judge in Writ Petition No. 395 of 2012, by which the said Writ

Petition has been dismissed.

3.

Facts giving rise to the appeal fall in a narrow compass

and they are as under :

The respondents had filed Regular Civil Suit No. 120 of

1992 against the appellant for his eviction from the flour mill (suit

premises) on the ground that the appellant is the tenant of the

same. However, the appellant took the stand that the suit

premises was part of the dwelling house, of which his elder brother

has been registered as Mundkar, by order dated 21/11/1981. It was

alleged that the suit premises are directly connected with the

business of the appellant. An issue as to whether the suit premises

is part of the dwelling house of the appellant and consequently

appellant is the Mundkar of the same came to be referred to the

Malmatdar of Tiswadi Taluka. In the said case No. MUND/JM-

II/DECL/CHIM/12/2001, by judgment and order dated 24/1/2005, the

learned Joint Mamlatdar-II answered the said issue in favour of the

appellant thereby holding that the suit premises is a part of the

dwelling house and thus the appellant is Mundkar of the same.

The respondent no. 1 filed appeal and by judgment and order

dated 15/12/2005 in Case No. MUND/Dycl/Appl/10/2005, the

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learned Deputy Collector and S.D.O., Tiswadi Taluka, Panaji set

aside the order dated 24/01/2005 passed by the Joint Mamlatdar-II

of Tiswadi Taluka, Panaji- Goa. The appellant approached the

Administrative Tribunal and in Mundkar Revision Application No. 5

of 2006, the order of the Deputy Collector was upheld. The Revision

Application was dismissed. The appellant then approached the

learned Single Judge of this Court in Writ Petition No.395/2012,

which also came to be dismissed.

4. Mr. V. A. Lawande, learned Counsel for the appellant

was heard at the stage of admission. He submitted that the survey

holding no. 55/0 in which the appellant has his residential house

and the survey holding no. 54/3 in which he has suit premises are

separated by a road and they belong to the respondents and

though the suit premises are beyond 5 metres from the outer wall

of the house of the appellant, however in terms of the definition of

'dwelling house' given in Section 2(i) of the Goa, Daman and Diu

Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred

to as Mundkars Act, for short), the same is a part of the dwelling

house and as such the appellant is the Mundkar of the suit

premises also. He invi