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2009 DIGILAW 1537 (BOM)

Rosarinho Costa v. Filomena Rodrigues E Silva

2009-11-17

R.M.SAVANT

body2009
ORAL JUDGMENT R.M. Savant, J. This petition arises out of an order passed in the execution proceedings filed by the petitioners who are the original plaintiffs herein for execution of the decree passed in Regular Civil Suit No. 127/82/F. By the impugned order, the said execution application filed by the petitioners has been dismissed on the ground that the decree passed in the said suit is a nullity. 2. The facts giving rise to the filing of the above petition can be stated thus : The petitioners herein are the owners of the property known as "Madel" situated at Curtorim, Salcete, Goa, which was allotted to the petitioners by deed of partition registered before the Notary Public. In the property exists a residential house and a mundkarial house (suit a house bearing No. 1124). The said mundkarial house was in occupation of one Jose Francisco D' Silva since prior to 1977 as a Mundkar of the petitioners and after the death of the said Jose in October 1977, the respondent No. 1, herein who is the wife of the said Jose succeeded him. It appears that sometime in the year 1980, the petitioner found that the respondent No. 2. Shri Naik, was residing illegally and without authority in the said house. The petitioners further learnt that the respondent No. 1. Filomena, had started residing with her daughter at Verna. The petitioners, therefore, by their letter dated 12.8.1980, called upon the respondent No. 2 to vacate the house and handover possession to the petitioners. On failure of the respondent No. 2 to hand over possession the petitioners on 30.9.1980, filed an application bearing No. 27/80 for eviction of the Mundkar in the Court of the Mamlatdar, Margao, Salcete, on the ground that Mrs. Filomena Rodrigues i.e. the respondent No. 1, has ceased to occupy the mundkarial house for more than one year. The petitioners, thereafter, received a notice from the Advocate of respondent No. 1 i.e. Filomena Rodrigues, on 25.10.1980, calling upon the petitioners not to interfere with the property of the respondent No. 1 claiming that she is the owner of the mundkarial house. In the said proceedings before the mamlatdar initiated by the petitioners for eviction of the Mundkar, the respondent No. 1 challenged the jurisdiction of the mamlatdar to try the matter on the ground that her husband, the said Jose, was the owner of the house. In the said proceedings before the mamlatdar initiated by the petitioners for eviction of the Mundkar, the respondent No. 1 challenged the jurisdiction of the mamlatdar to try the matter on the ground that her husband, the said Jose, was the owner of the house. It appears that the said proceedings before the mamlatdar were dismissed for default and therefore the rights of the parties remained to be adjudicated. 3. The petitioners filed a suit on 19.3.1981 in the Court of the learned Civil Judge, Junior Division Salcete, against the respondent Nos. 1 and 2, inter alia, praying for two folds reliefs : (a) Declaration that petitioners are owners of the suit house presently occupied by the respondent No. 2. (b) Eviction of the respondent No. 2 and possession of the suit house. In the plaint, the fact that the petitioners had approached the Authority under the Mundkar Act, 1975, was disclosed. However, it was stated that the said proceeding was pending before the mamlatdar being case bearing No. 27/80, as on the date when the said suit was filed, the said proceedings were in fact, pending and the same were dismissed for default on 27.8.1981. 4. The parties would be referred to as per their status in the suit. 5. Suffice it to say, that considering the nature of the dispute involved, the plaintiffs have admitted in the plaint that the property comprised of a mundkarial house which existed in the north eastern corner of the plaintiffs property. The plaintiffs also stated that one Anna Mariana was a Mundkar of the plaintiffs and had been residing in the dwelling house on account of the permission granted by the plaintiffs ancestors. It was further stated in the plaint that the said Anna Mariana was a Mundkar of the plaintiffs prior to late Jose Francisco D' Silva. 6. From the point of view of the present petition, what is relevant is that in the said plaint, it was stated that the plaintiffs were constrained to file the said suit as the defendant No. 1 had denied the plaintiffs ownership of the suit house and has claimed, that she is the owner of the same in the Mundkar case which was then pending before the mamlatdar of Salcete. 7. The defendant No. 1 i.e. the respondent herein filed the written statements and a counter claim. 7. The defendant No. 1 i.e. the respondent herein filed the written statements and a counter claim. The assertion of the plaintiffs that the said house was a mundkarial house was denied by the defendant No. 1 by stating that the said house was not a mundkarial house and was not situated in the plaintiffs property. It was further denied that the said Jose was a Mundkar of the plaintiffs and in fact was the owner of house which was lying in the property. The defendant No. 1 relying on certain documents which were mentioned in the said written statement, stated that the facts contained in the said documents clearly support the case of the defendant No. 1 about the ownership of the said house and that the said house was not a mundkarial house and not situated in the property of the plaintiffs. It was denied that the said Anna Mariana was a Mundkar of the plaintiffs nor had she obtained any permission from the plaintiffs ancestors to reside in the said house. The tenor of the written statement, therefore, was the denial of the said house being a mundkarial house and claiming ownership of the said house. In the counter claim, the defendant No. 1 claimed co-ownership of the said house on the ground that they are in occupation of the said house since the last fifty years without objection from anyone including the plaintiffs. Therefore, in addition to their other rights the defendant No. 1 claimed title by prescription and also claimed that the rights of any other person have been extinguished by efflux of time. The defendant No. 1, therefore in the counter claim claimed title by the adverse possession. 8. The parties went to trial on the basis of the aforesaid pleadings. The trial Court framed the issues. The first issue was relating as to whether the plaintiffs are owners in possession of the property known as "Madel" and also an old mundkarial house in north east corner of the suit structure and that the said house was occupied by one Jose Francisco Silva as Mundkar of the plaintiffs. The second issue was as to whether the plaintiffs proved that the defendant No. 1 i.e. the widow of the said Jose Francisco Silva had been residing with her married daughter at Verna and neither the defendants and their children a occupied the mundakarial house. 9. The second issue was as to whether the plaintiffs proved that the defendant No. 1 i.e. the widow of the said Jose Francisco Silva had been residing with her married daughter at Verna and neither the defendants and their children a occupied the mundakarial house. 9. It would be pertinent to note that the defendant No. 1 had not questioned the jurisdiction of the Civil Court in trying the said suit. In fact, no such objection finds a place in the written statement filed by the defendant No. 1. It would also be pertinent to note that the defendant No. 2 who was said to be in occupation of the said house did not choose to file written statement. The trial Court by its judgment and Order dated 31.8.2000, decreed the said suit and issued a declaration that the plaintiffs are the owners of the suit house which is occupied by the defendant No. 2 and that the defendant No. 2 was ordered to be evicted from the suit house and further restrained from possessing the suit house. The trial Court dismissed the counter claim filed by the defendant No. 1. 10. After the said decree came to be passed, neither of the defendants choose to carry the matter in appeal and the decree thereby achieved finality. The petitioners herein filed execution application being Regular Execution application No. 15/2001 for execution of the decree thereby seeking eviction of the defendant No. 2 from the suit house by removing his belongings from the suit house and claiming possession of the suit house from the defendants. To the said execution application, the heirs of the defendant No. 1 filed a reply and the principal contention raised in the said reply was that since the eviction was sought of the person who is a Mundkar, the suit was misconceived and, therefore, the decree passed was a nullity and could not be executed and, resultantly, no order for the eviction of the defendants and possession in favour of the decree holders could be granted. The other ground on which the execution of the decree was objected to was that the execution application was filed only by some owners without joining the other co-owners and, therefore, the same was not maintainable. 11. The other ground on which the execution of the decree was objected to was that the execution application was filed only by some owners without joining the other co-owners and, therefore, the same was not maintainable. 11. The said Execution application No. 15/2001 was considered by the trial Court and by the impugned Order dated 11.2.2003, the said application came to be rejected and the execution proceedings were dropped. The Executing Court took into consideration the fact that as per the case of the decree holders, one Jose Francisco Silve, the husband of the original defendant No. 1, was in possession of the suit house as a Mundkar of the decree holders. The Executing Court, observed that the pleadings in the plaint, determined the jurisdiction of the Court and not the defence taken in the written statement and, since admittedly it was the case of the decree holders in the suit that the judgment debtor No. 1 is the heir of their Mundkar, namely Jose, came to a conclusion that such a suit was not maintainable and that the trial Court lacked the inherent jurisdiction to entertain the said suit. The Executing Court also relied upon certain provisions of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 and Rules 1977, (Mundkar Act, 1975 for short), especially Section 12 a and 32 of the Mundkar Act 1975, in coming to a conclusion that the decree passed was a nullity as the trial Court lacked the inherent jurisdiction. As indicated above, it is the order passed by the Executing Court which is the subject matter of the instant petition. The petition, therefore, in a way concerns the execution of the decree which is in favour of the petitioners herein. 12. I have heard Shri Sudin Usgaonkar, the learned Counsel appearing for the petitioners and Shri S.D. Lotlikar, the learned Senior Counsel appearing for the respondents. 13. On behalf of the petitioners, it was submitted by Shri Usgaonkar that the Executing Court in refusing to execute the decree has failed to exercise jurisdiction vested in it. The learned Counsel submitted that the Executing Court has erred in holding that the decree was a nullity on the ground that the Court did not have the jurisdiction to deal with the issue in question. The learned Counsel submitted that the Executing Court has erred in holding that the decree was a nullity on the ground that the Court did not have the jurisdiction to deal with the issue in question. The learned Counsel submitted that the plaint, as a whole ought to have been considered by the Executing Court and once the plaint, as a whole is seen, then it would be very clear that the petitioners were seeking the eviction of the defendant No. 2 and possession of the suit house. The learned Counsel further submitted that the trial Court in recording the finding that the suit was not maintainable has gone behind the decree which was not permissible in the execution proceedings. The learned Counsel submitted that considering the stand of the defendant No. 1 in the proceedings before the mamlatdar as also in the instant suit, it is clear that the defendant No. 1 was claiming ownership of the property and had denied that the said Jose was the Mundkar of the property in question and that the said house was a mundkarial house. The learned Counsel submitted that the defendant No. 1 has taken conflicting pleas inasmuch he has also claimed ownership alternately by adverse possession and the said plea has been a consistent plea of the defendant No. 1 right throughout from the proceedings before the mamlatdar to the written statement filed in the suit. The learned Counsel, therefore, submitted that the entire attempt of the defendant No. 1 in taking the objection before the Executing Court was to see to it that the execution of the decree is stalled. The learned Counsel also submitted that if the defendant No. 1 was so aggrieved by the exercise of jurisdiction by the Civil Court, the defendant No. 1 ought to have challenged the said decree by filing proceedings in the higher Court. It is only after the decree had achieved finality and was put into execution, the defendant No. 1 has taken the said plea of mundkarship and, therefore, the stand of the defendant No. 1 was not bona fide. 14. It is only after the decree had achieved finality and was put into execution, the defendant No. 1 has taken the said plea of mundkarship and, therefore, the stand of the defendant No. 1 was not bona fide. 14. The learned Counsel for the petitioners relied upon the judgment of the Apex Court reported in AIR 1970 SC 1475 in the matter of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, in support of his submission that the nullity of the decree is a to be such that it can be seen from the face of the record and would require no examination of the questions raised. The learned Counsel also relied upon the judgment of the Apex Court reported in 2004 (1) SCC 287 in the matter of Rafique Bibi (Dead) by LRs v. Sayed Waliuddin (Dead) by Lrs and others, Paragraph 6 of the judgment is material wherein it has been held by the Supreme Court that the lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the Executing Court to take cognizance of such a nullity based on want of jurisdiction or else the normal rule that an Executing Court cannot go behind the decree must prevail. The said judgments have been relied upon by the learned Counsel for the petitioners in support of his submission that the suit simplicitor is for eviction of the defendant No. 2, who was in occupation and possession of the house in question. It is submitted by the learned Counsel that there was no issue as regards the declaration of ownership which is covered by the Mundkar Act, 1975. 15. It is lastly submitted by Shri Usgaonkar, the learned Counsel for the petitioners, that some of the contentions which are now sought to be raised by the respondents were never part of the earlier pleadings and have been taken only with a view to see that the said decree is not executed. The learned Counsel cited that the plea of ownership propounded by the defendant No. 1 is not consistent with the plea of mundkarship. For the said purpose, he relied on the judgment of a learned Single Judge of this Court reported in 2002 (2) GLT 550 in the matter of Mr. Jose Respicio Das Neves and others v. Mrs. Maria Doretea Fernandes and others. For the said purpose, he relied on the judgment of a learned Single Judge of this Court reported in 2002 (2) GLT 550 in the matter of Mr. Jose Respicio Das Neves and others v. Mrs. Maria Doretea Fernandes and others. In paragraph 7 of the said judgment in has been observed by the learned Single Judge that no person can claim to be owner of the property and at the same time can claim to be a Mundkar thereof. 16. Per contra, it is submitted on behalf of the respondents by Shri Lotlikar, the learned Senior Counsel, that if the Court which has passed decree has no inherent jurisdiction to deal with the subject matter in question, the decree is a nullity and cannot be enforced. Relying upon the averments made in the plaint and thereafter the issues which have been tried by the trial Court, the learned Counsel submitted that the entire claim in the suit would fall within the realm of the authorities under the said Mundkar Act. The learned Senior Counsel for the said purpose relied upon the provisions of the Mundkar Act especially Sections 12(b) and Section 31(2) of the said Mundkar Act, 1975, to contend that the jurisdiction of the Civil Court was barred considering that it was the own case of the petitioners that the said Jose was a Mundkar and the suit house was a Mundkarial house. The learned Senior Counsel submitted that the defence in the written statement was not material. The learned Senior Counsel further submitted that the issue as regards the competency of the Court which tried the said suit and the issue of nullity resultantly could be raised at any point of time even in the co-lateral proceedings and was therefore, available to the respondents in the execution proceedings. The learned Senior Counsel for the said purpose relied upon the judgment cited on behalf of the petitioners i.e. AIR 1970 SC 1475 in the matter of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, wherein the said proposition is laid down. The learned Senior Counsel submitted that though in the first instance the suit appears to be a suit for declaration of ownership and eviction of the respondent No. 2, in fact, it is a suit seeking ouster of a Mundkar from the Mundkarial house and, therefore, it was barred by Section 31(2) of the Mundkar Act. The learned Senior Counsel submitted that though in the first instance the suit appears to be a suit for declaration of ownership and eviction of the respondent No. 2, in fact, it is a suit seeking ouster of a Mundkar from the Mundkarial house and, therefore, it was barred by Section 31(2) of the Mundkar Act. The learned Senior Counsel further submitted that in the guise of seeking reliefs against the defendant No. 2, the petitioners were in fact trying to oust the defendant No. 1 from the Mundkarial house and, therefore, such a suit was not maintainable. The learned Senior Counsel further submitted that the defendants are entitled to take alternate and conflicting pleas or defences if they are not self destructive and for the said purpose, relied upon the judgment of the Apex Court reported in (2005) 7 SCC 653 in the matter of Devasahayam (Dead) By Lrs. v. P. Savithramma and others, wherein the Apex Court has laid the aforesaid proposition of law as submitted by the learned Senior Counsel. The learned Senior Counsel further submitted that there could be no estoppel against statute and even though the defendant No. 1 had denied being a Mundkar, he could still seek protection under the Goa Mundkar Act, 1975. The learned Senior Counsel submitted that the nullity of the decree in the said case was apparent on the face of the record as the Civil Court had dealt with the issue of Mundkarship and the eviction from the Muridkarial house. 17. I have heard the learned Counsel for the parties and bestowed my anxious considerations to the rival contentions. In my view, this petition exemplifies an attempt made by the judgment debtor to stall and defeat the execution of a decree passed against him. The facts d disclose that it is only when the said decree was put into execution that the plea that the decree was a nullity on account of the fact that the Court which entertained and tried the same, lacked the jurisdiction, was taken for the first time. 18. As indicated earlier in this judgment, the plaintiffs have filed the suit for a declaration of the ownership in respect of the suit property as also for an order of eviction against the defendant No. 2 and for the possession of the said suit house. 18. As indicated earlier in this judgment, the plaintiffs have filed the suit for a declaration of the ownership in respect of the suit property as also for an order of eviction against the defendant No. 2 and for the possession of the said suit house. The plaintiffs though had made averments in the plaint that the said suit house was a mundkarial house and that one Anna Maria was the Mundkar of the plaintiffs prior to the said Jose Francisco Silva. It is also averred that neither the defendant No. 1 nor any of her children were occupying the Mundkarial house which existed in the north eastern corner of the property and that the same was occupied by the defendant No. 2 without their consent or permission. It further their case that the said house has been abandoned and that they intended to repair and a reconstruct the same, however, they were not able to do so as defendant No. 1 had made illegal unauthorised entry. The plaintiffs have further averred that the defendant No. 1 was trying to rely upon the entry in the Matriz Records bearing No. 2021 and that the entry in the said records has no bearing whatsoever to the ownership rights of the defendants. It has further been averred that the late Jose did not have any ownership right to the dwelling house which falls within the property of the plaintiffs and the plaintiffs sought to rely upon the Certificate of Land Registration. The plaintiffs have averred in the said plaint that they were surprised to receive a notice from Advocate Jose Pedro Godinho, calling upon the plaintiffs not to interfere with the property of Filomena Rodrigues i.e. the defendant No. 1 and it was alleged in the said notice that she was the owner of the Mundkarial house. In the context of the said abandonment of the house and the claim of ownership which was sought to be put up on behalf of defendant No. 1 relying on the Matriz records the reliefs of declaration of ownership in respect of the suit property and the eviction of the defendant No. 2 could be sought. 19. It could also be relevant to refer to the written statement filed by the defendant No. 1 in the said suit. 19. It could also be relevant to refer to the written statement filed by the defendant No. 1 in the said suit. In juxtaposition to the c case of the plaintiffs, the stand of the defendant No. 1 was that the said suit was not maintainable in view of the fact that the case before the mamlatdar filed by the plaintiffs was dismissed, hence the suit was barred by res judicata. That was the only preliminary objection in the written statement. Significantly, no plea as regards the jurisdiction of the Civil Court to try the said suit was taken. In the said written statement, it was the specific case of the defendant No. 1 that the said house was not a mundkarial house and is not in the plaintiffs property. It was further his case that the said Jose Silva was never a Mundkar of the plaintiffs as he was the owner of the said house which was lying in his property and it was specifically contended that the said house does not lie in the plaintiffs property. It was also averred in the said written statement that the property belonged to defendant No. 1 and others and is enrolled in the Taluka Revenue Office under No. 3021 and, therefore, it clearly supported the case of the defendant No. 1 about the ownership of the said house which is lying in the property belonging to her and others. The entire tenor of the said written statement is that the said house is not a Mundkarial house and is not in the plaintiffs alleged property. It would also be pertinent to note that in the counter claim the defendant No. 1 claimed the title to the said property by prescription. The defendant No. 1, therefore, was claiming ownership of the property. In the context of the said pleadings that the trial Court framed the said two issues one regarding whether the plaintiffs prove that they are owners in possession of the property known as "Madel" and second issue whether the plaintiffs prove that the defendant No. 1 the widow of the Jose Francisco Silva has been residing with her married daughter at Verna and neither the defendants and their children occupied the Mundkarial house and whether the defendant No. 1 started residing in the said house without consent of the plaintiffs and has recorded findings in favour of the plaintiffs. While so recording the finding, the trial Court has gone into facts which were incidental thereto. It. therefore, cannot be said that the issues which were tried by the trial Court were falling within the jurisdiction of the authorities under the Mundkar Act 1975. The lis as can be seen was as regards the ownership of the suit house as the defendant No. 1 was claiming ownership and had not based his claim on any mundkarial rights. Considering the nature of the suit and the lis between the parties, in my view, it cannot be said that the trial Court lacked the jurisdiction to entertain the said suit. 20. As can be seen from the impugned order of the Executing Court the Executing Court has gone into the findings recorded by the trial Court and after going through the said finding, has observed "that on going through all these findings on the face of it, it appears to be apparent decree passed lacked inherent jurisdiction. In my view, it was permissible for the Executing Court to go into the merits of the decree. The decree, in my view is not such where it invalidity can be seen on the face of it". As held for the reasons stated herein above, the decree was passed in the suit where the trial Court did have the jurisdiction to entertain the suit. 21. No doubt, the defendants, as is well settled, are entitled to take alternate pleas or even inconsistent pleas so long as they are not self destructive. However, in the instant case, the defendant No. 1 has specifically denied that she was a Mundkar and in fact was claiming ownership based on certain revenue entries. In that sense, though an alternate plea is taken by the defendant No. 1, her categoric case was that she was the owner of the property and that the suit house was not even the property of the plaintiffs. It is in the said context that the plea of the defendant No. 1 is required to be considered. 22. Though it is true that the issue regarding the validity of the decree can be raised at any time as the same goes to the root of the matter. However, in the instant case, the antecedent facts become a bit relevant. 22. Though it is true that the issue regarding the validity of the decree can be raised at any time as the same goes to the root of the matter. However, in the instant case, the antecedent facts become a bit relevant. As mentioned herein above earlier in this judgment, the defendant No. 1 in the proceedings which were initiated before the mamlatdar by the plaintiffs under the Mundkar Act 1975 had questioned the jurisdiction of the mamlatdar and, resultantly, had questioned the maintainability of the proceedings before the mamlatdar on the ground that she was not a Mundkar and the said house was not a Mundkarial house. In the written statement filed in the suit also the fact that she was a Mundkar or that the said house was a Mundkarial house was also denied. Pertinently, no objection regarding the jurisdiction of the Civil Court was taken and the sole objection was on the ground that the issue regarding the eviction of the defendants from the suit house was res judicata. Implicit in this stand was the acceptance by the defendant No. 1 that the Civil Court did have jurisdiction. Even after the decree was passed, the defendant No. 1 did not choose to carry the matter higher and the matter rested there till the plaintiffs filed for execution of the decree. It is only at the execution stage that the plea regarding the validity of the decree was taken on the ground that the Civil Court lacked inherent jurisdiction. Therefore the defendant No. has been changing her stand as it suits her convenience. 23. In the background of the aforesaid facts, it can only be said that the conduct of the respondent No. 1 is not bona fide and the pleas now sought to be taken in the execution are only with a view to stall and defeat the decree. Such an attempt cannot be countenanced. 24. In that view of the matter, the above petition is required to be allowed and, is accordingly allowed in terms of prayer clause (a). 25. Rule is according made absolute with parties to bear their respective costs. Petition allowed.