Writ Petition No.160 of 2016

3rd August, 2016.

Petitioner Counsel: Shri JUDE SEQUEIRA
Respondent Counsel: Shri GAURISH AGNI and Shri EESHAN USAPKAR

Cases Cited:
Shri Subha Venkatesh Kamat Vs. Shri Vasu Naik & Ors., 2001(1) Goa L.T. 3 [Para 7,18]
Baburao Vishnu Naik Vs. Ramchander Vishnu Naik & Anr., 1989 (2) Goa L.T. (132) [Para 7,19]
Shantaram Babani Xete Curtorkar & anr. Vs. Vishnu Babani Xete Curtorkar & Anr., 1989 (2) Goa L.Ti. (167) [Para 7,16]
Miss Aura Serafina Crispina de Souza & Anr. Vs. Vitorino Mendonca & Anr., 2014(1) ALL MR 658=2014 2 MhLJ 605 [Para 8]
Shri Shantaram Fottu Dessai 7 Anr. Vs. Smt. Drupadi Arjun Shetkar & Anr., 2003 (1) Goa L.T. 46 [Para 8]
Felix Fernandes & Ors. Vs. Antonio Lobo & Anr., 2006 (1) Goa L.R. 371 [Para 8,20]
Miss Telma de Souza Gonsalves Vs. Mr. Dashrat Shataram Gadekar & Ors., 1998 (1) Goa L.T. 429 [Para 8,20]
Atma Ram Builders Private Ltd. Vs. A.K. Tuli & Ors., (2011) 6 SCC 385 [Para 8]
Pelicio Martins Vs. Cosme Matias Menezes and Ors., 1988 R.C.J. 400 [Para 16]

JUDGMENT

JUDGMENT :- Rule made returnable forthwith. The learned Counsel for the respondent waives service. Heard finally by consent of the parties.

2. The challenge in this petition, at the instance of the petitioners/judgment debtors, is to the order dated 4/07/2015 passed by the Executing Court whereby application (exhibit 17/D) filed by the petitioners, under Section 47 of the Civil Procedure Code has been rejected.

3. The brief facts are that the petitioners claim to be mundkars in respect of house no.68 standing in property bearing Survey No.20/1 of Ponda. The entire Survey No.20/1 admeasures 92,750 square metres and it originally belonged to one Mr. Shrirang Talaulikar, from whom the respondent/decree holder has purchased a part. The respondent had filed Regular Civil Suit No.172/1994/A against the petitioners and Smt. Bhima Gurkha claiming permanent injunction against the petitioners which suit was decreed by the learned Civil Judge Junior Division at Ponda on 22/09/2008 granting permanent injunction restraining the petitioners from doing illegal construction and/or increasing the plinth area of mundkarial house and from doing any construction within 3 metres from the boundary line of respondent's property. There was an order of mandatory injunction directing the petitioners to demolish the illegal construction already carried out beyond the plinth area and within 3 metres setback area from the boundary wall of the respondent. It is a matter of record that the petitioners unsuccessfully challenged the said judgment and decree initially before the learned District Judge in Regular Civil Appeal No.102/2008 and, thereafter, before this Court in Second Appeal No.25/2010 which was dismissed on 27/01/2012. Thus, the judgment and decree in favour of the respondent has attained finality. The respondent sought to execute the said decree in Execution Application No.9/2011/A before the learned Senior Civil Judge at Ponda in which the petitioners filed an application under Section 47 of Civil Procedure Code claiming that they have applied to the Joint Mamlatdar under Section 29(4) and Section 8(A) of the Goa, Daman and Diu Mundkar (Protection from Eviction) Act, 1975 (Act, for short) for declaration as mundkars of the house bearing no.68 located in the property bearing Survey No.20/1. It was contended that in view of the pendency of the said proceedings the execution proceedings need to be stayed.

4. The application was opposed by the respondent. It was contended that the Executing Court is bound by the decree which has been confirmed and the application was misconceived.

5. The Executing Court found that the petitioners for the first time raised the objection on the basis of the pendency of the mundkarial proceedings which cannot be considered. The Executing Court found that the petitioners are claiming mundkarial rights in respect of property of Mr. Shrirang Talaulikar and not the decree holder and the plot of the decree holder is independent. In that view of the matter, the application came to be rejected which is subject matter of challenge in this petition.

6. I have heard Shri Sequeira, the learned Counsel for the petitioner and Shri G. Agni, the learned Counsel for the respondent. With the assistance of the learned Counsel for the parties, I have perused the impugned order passed by the Executing Court as also the order passed by the learned District Judge in Regular Civil Appeal No.102/2008 and of this Court in Second Appeal No.25/2010.

7. On behalf of the petitioners strong reliance is placed on the decision of this Court in Shri Subha Venkatesh Kamat V/s. Shri Vasu Naik & Ors., 2001 (1) Goa L.T. 3 and Baburao Vishnu Naik V/s. Ramchander Vishnu Naik & Anr., 1989 (2) Goa Law Times (132), in order to submit that in similar circumstances the Executing Court was directed to stay its hands till the decision in the proceedings under the Mundkar Act. The learned Counsel has also relied upon the decision in the case of Shantaram Babani Xete Curtorkar & anr. V/s. Vishnu Babani Xete Curtorkar & Anr., 1989 (2) Goa Law Times (167). The learned Counsel submits that in the event the petitioners succeed in the mundkarial proceedings, they will be entitled to purchase not only the dwelling house, but also the area around the said house. It is submitted that in that event, the decree which is sought to be executed, would be rendered inexecutable. He submits that the Executing Court lost sight of the fact that the petitioners would be entitled to purchase the adjoining land along with the dwelling house and thus the decision in the mundkarial proceedings has a bearing on the question of the executability of the decree.

8. On the contrary, the learned Counsel for the respondent has supported the impugned order. The learned counsel has referred to the observations and findings of this Court in Second Appeal No.25/2010 in order to submit that all the contentions as sought to be raised on behalf of the petitioners have been dealt with and negatived and, thus, the Executing Court was right in holding that it cannot go behind the decree and would be bound to execute the same as it has attained finality. The learned Counsel has placed reliance on the decision of this Court in Miss Aura Serafina Crispina de Souza & Anr. V/s. Vitorino Mendonca & Anr., 2014 2 MhLJ 605 : [2014(1) ALL MR 658], Shri Shantaram Fottu Dessai 7 Anr. V/s. Smt. Drupadi Arjun Shetkar & Anr., 2003 (1) Goa L.T. 46, Felix Fernandes & Ors. V/s. Antonio Lobo & Anr. 2006 (1) Goa L.R. 371, Miss Telma de Souza Gonsalves V/s. Mr. Dashrat Shataram Gadekar & Ors. 1998 (1) Goa L.T. 429 and the decision in the case of Atma Ram Builders Private Ltd. V/s. A.K. Tuli & Ors. (2011) 6 SCC 385. The learned Counsel submits that even assuming that the petitioner succeeds in the mundkarial proceedings that cannot legalise the unauthorised extension and construction made in the setback area. He, therefore, submits that the impugned order does not exhibit any jurisdictional error, so as to require interference.

9. I have carefully considered the rival circumstances and the submissions made and I do not find that any case for interference is made out. It is not in dispute that the respondent has purchased a portion of the larger property from Shrirang Talaulikar which is allotted a separate Survey No.20/38. It is further undisputed that the decree which is sought to be executed against the petitioners has attained finality when the Second Appeal was dismissed by this Court and the matter was not carried any further. It is also undisputed that the application filed by the petitioner before the Mamlatdar is one under Section 29 of the Mundkars Act for registration as a mundkar. Thus, as of today, there is neither any declaration nor there is a sanad issued of purchase of mundkarial house in favour of the petitioner.

10. The Trial Court had decreed the suit in the following terms:

(a) The suit is decreed.

(b) The counterclaim is dismissed.

(c) The defendants are hereby restrained by way of permanent injunction from doing any illegal construction and/or increasing the plinth area of the mundkarial house and/or doing any construction within three metres from the boundary limit of the property of the plaintiff bearing survey no.20/38 and/or from carrying out further construction through themselves, labourers, agents or any other person acting for and on behalf of the defendants.

(d) The defendants are hereby directed by way of mandatory injunction to demolish the illegal construction already carried out beyond the plinth area of the defendants house and/or the construction lying within three metres from the boundary wall of the plaintiffs property bearing survey no.20/38.

Cost by the defendants in the suit and in the counterclaim.

Decree shall be drawn up accordingly.

It can thus be seen that the petitioners are restrained from carrying out any illegal construction from increasing the plinth area of the mundkarial house and/or doing any construction within 3 metres from the boundary wall of the property of the respondent, bearing Survey No.20/38. The petitioners are directed to demolish the illegal construction already carried out, 'beyond the plinth area' and/or the construction within 3 metres from the boundary wall of the plaintiff's property. Thus, the impugned decree pertains to an area which excludes the alleged mundkarial house of the petitioners. The prohibitory injunction as also the mandatory part, relates to the construction in extension of the plinth area and/or doing any construction within 3 metres of the boundary wall of the respondent. Admittedly, the petitioners are not claiming any mundkarial rights as against the respondent. The question is whether in such circumstances, the execution deserves to be stayed pending disposal of the application for registration filed by the petitioners before the Mamlatdar.

11. The contention on behalf of the petitioners precisely is that, if the petitioners succeed before the Mamlatdar they will not only be entitled to purchase the dwelling house but also the adjoining area as permitted under the relevant provisions. The contention is that if that happens, the same will have a bearing on the executability of the decree. This submission cannot be accepted. This is because even assuming that the petitioner succeeds in the mundkarial proceedings and eventually a sanad is granted for purchase of the dwelling house and the adjoining area, that cannot validate the construction already carried out in the setback area/open area, which is undertaken without obtaining the licence from the local authority.

12. It may be mentioned that in the suit the Trial Court had framed the following issues:

1. Whether the plaintiff proves that the defendants stored the construction materials and has started construction of new house at a distance of one to two feet from the boundary wall of the plaintiff without licence from Ponda Municipal Council?

2. Whether the defendants prove that Deed of Sale dated 21/09/1980 is null and void?

3. Whether the defendants prove that they are entitled for relief sought by the counter claim?

13. It can be seen that issue no.1 was specifically regarding the construction of a new house at a distance of one or two feet from the boundary wall of the respondent "without licence from Ponda Municipal Council" which has been answered in the affirmative. If that be so, it is difficult to envisage as to how the decision in the mundkarial proceedings can have a bearing on the executability of the decree, in the context of the issues, which arise in the execution case. A perusal of the judgment of this Court in the Second Appeal (para 9), would show that the very same contention was raised before this Court about the petitioners being mundkars residing in the dwelling house existing in the suit property. It was contended that the Civil Court had no jurisdiction to direct demolition, the construction in the said area. It was pointed out that the petitioners have already preferred an application for declaration of their rights as mundkars against the bhatkars in which the respondent is also a party and the said proceedings are pending before the mamlatdar. It was contended that unless and until the area of the dwelling house is adjudicated in the said proceedings the question of demolition of the construction does not arise.

14. This Court has dealt with the said contention in para 11 onwards in which it has been found that the plinth area was originally only 20 metres and the extension of the plinth area was illegal. It has been found that the respondents are entitled to seek demolition of the construction which would affect their proprietary rights. This Court also found that unless and until a Purchase Certificate is obtained from the learned Mamltdar a mundkar is not entitled to claim any right to put up a construction in the mundkarial area. It has further been found that the petitioners have not obtained any declaration of their right as a mundkar nor there is any material to show that the mundkarial area has been demarcated. It has thus been held that the petitioners were not entitled to extend the existing plinth area "to the detriment to the rights of the respondent".

15. The learned Counsel for the petitioners has referred to certain portions from the evidence of DW1 examined before the Trial Court in order to point out that the said witness has admitted that originally a hut of pal leaves was constructed in the year 1966, which was admeasuring 20 square metres. The said hut had caught fire about 20 years back. She has admitted that the present area of the house which is constructed in laterite stones with manglore tiles roof is 120 square metres. She has stated that she has constructed this house in the year in which the hut had caught fire. She has further contended that the new house was not constructed at the same spot where the hut was existing but it was constructed about 8 metres away from the said spot.

The contention is that the protection cannot be claimed on the basis of the mundkarial rights in respect of the structure which is constructed after the hut had caught fire and by substantially increasing the plinth area and also at a different spot from where the hut was situated.

In my considered view, it would not be necessary to go into this aspect because the decree passed in the suit has attained finality.

16. It would now be necessary to make brief reference to the cases cited on behalf of the petitioners. In the case of Shantaram Babani Xete Curtorkar & Anr. (supra), it has been held that the plea based on mundkarial rights can be allowed to be taken for the first time in the execution proceedings. It can be seen that the said case arose out of a dispute between a bhatkar and the mundkar and not out of a dispute between persons claiming to be mundkar and a third party, as in the present case. In that case, the following observations of a learned Single Judge of this Court in Pelicio Martins V/s. Cosme Matias Menezes and Ors., 1988 R.C.J. 400, were reproduced as under:

It may however be observed that if a person did not take up the plea or raised an issue of mundcarship in a given suit, he cannot be thereafter permitted to raise such a plea or issue in execution proceedings filed against them.

This Court in para 11 has observed that there is a conflict on the subject.

17. In para 12 it has been held that "the fact however, remains that whether a party is or is not permitted to raise any issue of mundcarship, nevertheless that party can approach the Mamlatdar and get his rights adjudicated in terms of and under the provisions of the Mundcar Act, 1975". There cannot be any dispute with the proposition that the party can approach the Mamlatdar. However, the issue in the present case is whether the Executing Court would be required to wait till the decision in the mundkarial proceedings, particularly, when the decree which is sought to be executed is not between the bhatkar and mundkar and pertains to an illegal construction undertaken by way of extension of plinth area in the setback space without obtaining the licence from the Municipal Council.

18. In the case of Shri Subha Venkatesh Kamat (supra) again the dispute was between a bhatkar and a mundkar which would be apparent from the narration in the opening part of the judgment. In that case, the Executing Court had stayed the execution awaiting the decision of the Mamlatdar which was challenged by the decree holder in this Court. The petitioner/decree holder in that case had obtained a decree for eviction of an illegal addition of a structure existing in the property belonging to him. The mundkarial rights were claimed by the respondent therein against the petitioner.

19. The decision in the case of Baburao Vishnu Naik (supra) basically involved the question as to the meaning of a 'dwelling house' under Section 2(i) of the Act of 1975 and it has been held that the dwelling house connotes independent structure which includes part of the house, provided it constitutes an entity in itself.

20. Before concluding, a useful reference may be made to the decisions of this Court in Felix Fernandes (supra) and Miss Telma de Souza Gonsalves (supra). In Felix Fernandes (supra) it was held that, a mundkar is prohibited from reconstructing the dwelling house beyond the existing area and the plaintiff was held entitled to claim demolition of the same. In the case of Miss Telma de Souza Gonsalves (supra), the petitioner had filed a suit for demolition, injunction and recovery of possession. The defendants in that case were occupying a certain portion and the case made out was that they had encroached and made further extension and construction adjoining the said house. In that case, the question was whether the issue about the defendants residing as mundkars in a portion shown by letter 'C' was required to be deleted. This Court held that in the context of the controversy involved it was not necessary to decide the capacity in which the defendants were occupying the suit structure. In such circumstances, the order of the Trial Court framing the issue was set aside.

21. I do not find that there is any error in the impugned order rejecting the application and thereby refusing to stay the execution. The petition is without any merits and is accordingly dismissed.

Petition dismissed.