Second Appeal No. 33 of 1995

26th June, 1998

Petitioner Counsel: Shri. E. P. LOBO
Respondent Counsel: Shri. SUDIN M.S. USGAONKAR

Cases Cited:
1998(3) ALL MR 704=1998 (1) Goa L.T. 449 [Para 8]

JUDGMENT

JUDGMENT :- This appeal is filed by the original defendants against whom the respondent-plaintiff had filed Regular Civil Suit No. 47/1982/D in the Court of Civil Judge, Junior Division, Margaon for perpetual injunction. The trial Court by its Judgment dated 31st October 1989 dismissed the suit. The plaintiff then filed Regular Civil Appeal No. 65/89/A in the District Court, South Goa, Margao and the learned Additional District Judge by his Judgment dated 2nd January 1995 partly allowed the appeal permanently restraining the defendants from demolishing the plaintiff's house, cowshed, storeroom, W.C., etc., with a further direction not to interfere with the said property within a distance of two metres from the outer wall of the house, cowshed etc. Feeling aggrieved, the defendants have preferred this appeal.

2. The plaintiff filed the abovementioned suit without making any reference to his mundkarial rights, contending that he has a dwelling house, cowshed, storeroom and W.C. upon the property of one Ceasor Coelho of Margao. The plaintiff, however, contended that his house, cowshed, etc., are located within the area of 200 sq. mts. The plaintiff alleged that the defendants demolished the fencing and cowshed for the purpose of constructing a road. According to the plaintiff, the construction of the proposed road was an encroachment upon the said property. He, therefore, prayed for perpetual injunction. The defendants, on the other hand, pointed out that the said Ceasor Coelho made a gift of a portion of his property in favour of the defendant no.1 Municipality for the purpose of constructing a road. According to the defendants, the plaintiff had no right to obstruct them in the construction of the proposed road.

3. The trial Court accepted the plaintiff's contention that he had his cowshed, storeroom and W.C. in the eastern side of his house and that there is a compound wall to the north east of the dwelling house and a fencing of live plants to the east of the house. The trial Court accepted the defendants' case that there was a gift in respect of a portion of the land by Ceasor Coelho. The trial Court did not accept the plaintiff's contention that the defendants had demolished the compound wall, fencing and part of the cowshed belonging to the plaintiff. It observed that the defendants had started construction of the road upon the strip of land gifted to them by Ceasor Coelho and as such, the plaintiff had no right to obstruct them. The Additional District Judge while allowing the plaintiff's appeal observed that the defendants had no right to demolish the cowshed of the plaintiff, who is a mundkar.

4, Shri E.P. Lobo, the learned advocate for the appellants/defendants pointed out that a mundkar is entitled to have open land of only 2 metres around his dwelling house situated in urban area. Shri Lobo further pointed out that the plaintiff's cowshed is beyond 3 meters from his dwelling house. He also pointed out that, as per the plaintiff's own evidence, the cowshed is beyond the area of 200 sq. metres. Hence, according to him, it was not proper and correct to have passed a decree of injunction against the defendants. Shri Sudin Usgaonkar, the learned advocate for the respondent-plaintiff, on the other hand, submitted that the competent authority had declared the plaintiff as a mundkar and that the rights of the plaintiff as a mundkar are not in any way affected by the gift deed executed by Ceasor Coelho in favour of defendant no.1. Shri Usgaonkar further submitted that the plaintiff's dwelling house including the cowshed etc., are situated within the permissible area in possession of a mundkar and the Civil Court has no jurisdiction to decide the extent of such area. According to Shri Usgaonkar, there is no infirmity or illegality in the impugned order and as such, no interference with it is called for in the second appeal.

5. As already pointed out, the plaintiff filed the suit on the basis of his possession of the dwelling house, cowshed, etc., without any reference to his mundkarial rights. However, during the pendency of the suit, the Mamlatdar declared the plaintiff as a mundkar of the landlord Ceasor Coelho in respect of the house (191.50 sq. mts.), cowshed (21.25 sq. mts.), bathroom/storeroom (6.35 sq. mts.) and W.C. (2.40 sq. mts.). Since the submissions made at the Bar have a bearing on certain rights of the plaintiff as a mundkar, it is necessary to make a reference to the relevant provisions of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the 'Mundkar Act' for short). One of the objects of the Mundkar Act is to provide for better protection to mundkars against eviction from their dwelling houses. Section 4 creates a bar to eviction and in substance states that no mundkar shall be evicted from his dwelling house except in accordance with the provision of the Act. Section 5 contemplates a relief to the mundkar, who apprehends dispossession of his dwelling house by or on behalf of the bhatkar. Section 9 states that the rights of the mundkar in the dwelling house shall not be in any way affected by a transfer made by the bhatkar. Section 15 states that a mundkar shall have the right to purchase the dwelling house occupied by him. Sub-section (2) of Section 15 states that the maximum extent of land around or appurtenant to the dwelling house which a mundkar is entitled to purchase shall be as indicated under sub-clause (i) of clause (i) of Section 2. Section 16 lays down the procedure for purchase of dwelling house. Section 31 bars the jurisdiction of the Civil Court to settle, decide or deal with any question or determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Mamlatdar or the Collector etc., Section 2(i) defines 'dwelling house'. The definition is inclusive and it includes not only the actual dwelling house but also the land on which it is standing as well as open space around the house. The relevant portion of the definition of 'dwelling house' reads as under :-

"(i) 'dwelling house' means the house in which mundkar resides with a fixed habitation and includes - (i) (a) the land on which the dwelling house is standing and the land around and appurtenant to such dwelling house, subject to a maximum limit of five metres, if the land is within the jurisdiction of a village panchayat, and two metres, if it is not within such jurisdiction, from the outer walls of the dwelling house :

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(b) three hundred square metres of land including the land on which the dwelling house is standing :

Provided that where the dwelling house is within the jurisdiction of a municipal council, the dwelling house shall include two hundred square metres of land including the land on which the dwelling house is standing :

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(ii) the cattle shed, stable, pigsty, workshop or such other structure connected with the business or profession of the mundkar; and .................".

6. There is, therefore, no doubt that the plaintiff, who is a mundkar enjoys protection under the Mundkar Act against eviction from his dwelling house which includes his cowshed also. Since the plaintiff has sought the relief of perpetual injunction against the defendants. It is for him to show that his cowshed and fencing which were destroyed by the defendants, were within the permissible limits mentioned in sub-clause (i) (a) and (b) of clause (i) of Section 2. Once the plaintiff proves this fact, then he is entitled to be protected so far as his dwelling house including the cowshed are concerned. In that event, the defendants, even though they have acquired the land occupied by the plaintiff's cowshed under a Gift Deed, cannot demolish the same in order to carry out the construction of a road.

7. It is material to note that although the plaintiff now asserts his right as a mundkar, he did not make any reference in his plaint of his alleged right. As already pointed out he filed the suit for perpetual injunction on the basis of his possession of the dwelling house, cowshed, etc. As a matter of fact two years prior to the filing of the suit, the plaintiff had filed an application before the Mamlatdar for declaration of his right as a mundkar. However, the plaintiff suppressed this material fact when he filed the suit in 1982. It may be further noted that the declaration in favour of the plaintiff was given by the Mamlatdar on 12th February 1986. Consistent with the said declaration, it would have been proper if the plaintiff had applied to the Mamlatdar for purchasing the dwelling house occupied by him. In that event, the maximum extent of the land around or appurtenant to the dwelling house would have been determined and demarcated by the Mamlatdar. It is pertinent to note that after obtaining a declaration of his mundkarial right, the plaintiff has taken no steps to purchase the dwelling house. Consequently there has been no determination or demarcation of the extent of the land to which the plaintiff as a mundkar is entitled under Section 2(i). Without discharging his obligation of purchasing the dwelling house, the plaintiff is trying to assert his mundkarial rights. This conduct on the part of the plaintiff is not fair. He has not come with clean hands when he is seeking an equitable relief of injunction against a public body, which in the discharge of its public duty is trying to construct a road. There is no dispute of the fact that the plaintiff has his cowshed upon the property of Ceasor Coelho. It is also clear from the evidence on record that the defendant no.1 Municipality has acquired a portion of the property of said Ceasor Coelho under a Gift Deed dated 16th December 1981. It is not in dispute that the road sought to be constructed by defendant no.1 cuts through the fencing and cowshed of the plaintiff. However, in order to be entitled to perpetual injunction, the plaintiff would be required to show that the fencing and cowshed are located within the permissible limits of the area mentioned in the definition 'dwelling house'. The questions as to what is the extent of area of the dwelling house of the plaintiff as a mundkar and whether the fencing and cowshed of the plaintiff are within or outside the said area are essentially the questions which are, under the Mundkar Act, required to be settled, decided or dealt with by the Mamlatdar or the Collector. The jurisdiction of the Civil Court to decide the said questions is clearly barred by Section 31(2) of the Mundkar Act. Consequently the Civil Court cannot grant the relief of perpetual injunction to the plaintiff, assuming that the cowshed and the fencing are within the area of permissible limit stated in Section 2(i)(i) of the Mundkar Act. After obtaining the declaration of his mundkarial right during the pendency of the suit, it was necessary for the plaintiff to have made suitable amendment in the plaint and raise a contention that his fencing and cowshed are within the permissible limits stated in Section 2(i)(i) of the Mundkar Act. The plaintiff has, however, not done anything of this sort. On the contrary his conduct throughout the proceedings, as pointed out above, has not been fair. Therefore, he cannot claim the equitable relief of perpetual injunction. The learned Additional District Judge, who granted the decree of perpetual injunction in favour of the plaintiff, has failed to take into consideration the abovementioned position. There is, therefore a material irregularity resulting in failure of justice. Consequently interference by this Court becomes absolutely necessary.

8. Shri Lobo, the learned advocate for the appellants, relied upon the decision in Peter Fernandes and others v. Luizinha Pereira and others, 1998(1) Goa Law Times 449 = (1998(3) ALL MR 704) and submitted that the plaintiff cannot complain of any violation of his mundkarial rights, since he has not purchased the dwelling house in question. Shri Usgaonkar, the learned advocate for the respondent-plaintiff also relied upon the same decision and submitted that the plaintiff's right in respect of his dwelling house deserves to be protected until he purchases the dwelling house. It may be pointed out that in the case relied upon by both the learned counsel, there was a dispute between two mundkars, one alleging that the other had committed encroachment upon his dwelling house. The substantial question of law which was raised before this Court was "Can a Civil Court entertain the suit filed by a mundkar against another mundkar from the same property making grievance of extension of the house by the another to be an encroachment over the dwelling house of the former by the latter in contravention of the provisions of Goa, Daman and Diu Mundkars (Protection from Eviction, Act) 1975 (hereinafter called as "the Mundkar Act") and grant the relief of injunction, either mandatory or permanent." It was found that the competent authority under the Mundkar Act had not decided the extent, that is, the exact area and the location of the dwelling house of the appellant-plaintiff. It was, therefore, observed that it was premature for the plaintiff to complain about violation of any of his rights in relation to the dwelling house. In that context the learned Single Judge R.M.S. Khandeparkar, J., proceeded to observe :

"Such a right can be claimed only after exercise of the option and purchase of such area around or appurtenant to his house by a mundkar in terms of Sections 15 and 16 of the Mundkar Act. Unless the rights of a mundkar in terms of Section 15 are exercised and confirmed in terms of the provisions contained in Section 16 of the Mundkar Act, a mundkar cannot claim violation of any of his alleged rights in respect of such area around or appurtenant to the house in his occupation. ...."

The learned Judge further proceeded to observe :-

"Unless the title or ownership rights in respect of such area around the house is conveyed in favour of a mundkar, he cannot complain of any violation of his alleged right which he has not yet lawfully acquired. No doubt, till the rights over such area are acquired by a mundkar, the rights which relate to the house in his occupation are wholly safeguarded by other provisions in the Mundkar Act."

It may be pointed out that the substantial question of law raised in that appeal was, however, answered in negative by the learned Judge, who held that the jurisdiction of the Civil Court is entirely barred from entertaining the suit filed by the appellant/plaintiff. In my opinion this is the ratio of the said case and the same fittingly applies to the present case. In the instant case the conduct of the plaintiff referred to above does not entitle him to the equitable relief of injunction.

9. In the result, the appeal is allowed, the Judgment and Decree passed by the Additional District Judge is hereby set aside and the plaintiff's suit is dismissed with costs throughout.

Appeal allowed