Judgment Heard Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Petitioners and Shri R. G. Ramani, learned Counsel appearing for the Respondents. 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the Respondent waives service. 3. The above Petition challenge the Orders passed by the Courts below whereby an application for temporary injunction filed by the Petitioners came to be dismissed. 4. Briefly, the facts of the case as contended by the Petitioners are that they are owners in possession of a property known as "Pandavwada" bearing survey no. 57/10 of the Village of Orgao, admeasuring 6125 square metres, which according to the Petitioners, is in their enjoyment and possession. It is further their case that on 19.02.2012, the Respondent and his attorney Shri Datta S. Naik, trespassed into the house existing in the said property by breaking open the lock of the door of the suit house and removed totally the Mangalore tiles of the roof and the wooden beams and rafters of the suit house. It is further their case that the Respondents started digging pit hole inside the suit house in order to put up a RCC foundation and erect RCC pillar. The Petitioners further alleged that on 20.02.2012, the Petitioners lodged a complaint before the local Police Station for the forceful trespass and in the inquiry therein, they learnt that the Respondents had obtained an N.O.C. from the local Panchayat and the Town and Country Planning Department. It is further the case of the Petitioners that they accordingly filed a suit on 22.02.2012 praying, inter alia, for an injunction restraining the Respondents, his legal representatives, etc., from in any manner interfering in the peaceful possession of the Petitioners and for damages and mandatory injunction. Alongwith the suit, the Petitioners also filed an application for temporary injunction praying inter alia to restrain the Respondents from interfering with the peaceful possession of the property belonging to the Petitioners. It is further their case that they have also asked for temporary injunction to restrain the Respondents from carrying out any construction in the suit property. 5. On being served, the Respondents filed their appearance and filed their written statements and reply to the application for temporary injunction. It is the contention of the Respondents that they are the mundkars of the suit house. 5. On being served, the Respondents filed their appearance and filed their written statements and reply to the application for temporary injunction. It is the contention of the Respondents that they are the mundkars of the suit house. It is further their case that in the other rights column of the duly promulgated Survey Records, the house is shown to be belonging to the father of the Respondent Ramnath Vaman Naik. The Petitioners sought for an exparte Order of injunction before the learned Trial Judge and, as no Order was passed, the Petitioners preferred an Appeal before the Lower Appellate Court. The Lower Appellate Court directed the parties to maintain status quo. The said Order was challenged before this Court in a Writ Petition no. 247/2012 and by Order dated 29.03.2012, this Court directed the learned Trial Judge to dispose of the application for temporary injunction as expeditiously as possible on merits. Accordingly, the learned Trial Judge after hearing the parties, dismissed the application for temporary injunction. Being aggrieved by the said Order, the Petitioners preferred an Appeal before the Lower Appellate Court which also came to be rejected by Judgment dated 29.308.2012. 6. Being aggrieved by the Judgments passed by the Courts below dismissing the application for temporary injunction, the Petitioners have preferred the above Petition. 7. Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Petitioners, has assailed the impugned Order essentially on the ground that it is not in dispute that the Petitioners are the owners in possession of the suit property. Learned Senior Counsel further contended that the Respondent is a licensee of the premises and, according to him, he has no right to occupy the suit premises. Learned Senior Counsel further pointed out that more than 50 years back, the Respondents nor any of his ancestors occupied the suit premises and, as such according to him, the licence had lapsed. Learned Senior Counsel further pointed out that the Respondent has erroneously claimed that he is a mundkar of the suit premises as the allegations made by the Respondents in the written statement, did not at all disclose that, by any stretch of imagination, the Respondent can be mundkar of the suit premises. Learned Senior Counsel further pointed out that the Respondent has erroneously claimed that he is a mundkar of the suit premises as the allegations made by the Respondents in the written statement, did not at all disclose that, by any stretch of imagination, the Respondent can be mundkar of the suit premises. Learned Senior Counsel further pointed out that the Courts below have refused the temporary injunction essentially on the ground that the Respondent is a mundkar of the suit premises and, as such, he is entitled under the Goa Daman and Diu Mundkar Act to reconstruct the dwelling house to the extent of the plinth area. Learned Senior Counsel has thereafter taken me through the plans approved by the statutory authorities and pointed out that the activity being carried out by the Respondent is to put up a Multipurpose Hall and a Dharmashala. Learned Senior Counsel has taken me through the provisions of the Mundkar Act and considering that as the structures belonged to the Devasthan, the question of claiming any mundkarship does not arise. Learned Senior Counsel further pointed out that it is the case of the Respondents that they were using the suit premises for some festive occasion and, as such, these activities on the part of the Respondents cannot entitle the Respondents to claim that they are mundkars of the suit premises. Learned Senior Counsel futher pointed out that the Respondents have not obtained any registration and/or declaration that they are the mundkars of the suit premises and until and unless such reliefs are obtained from the competent Court, the question of carrying out any reconstruction would not arise. In support of his submissions, the learned Senior Counsel has relied upon the Judgment of this Court reported in 1991(2) GLT 331 in the case of ShriVicente Cabral vs. Smt. Sunandabai Dayanand Bandodkar. The learned Senior Counsel further pointed out that in view of the said Judgment, in a very similar circumstance, this Court has held that until and unless the declaration of mundkarship is obtained by such person, the question of carrying out any reconstruction of the dwelling house, does not arise. The learned Senior Counsel further pointed out that in view of the said Judgment, in a very similar circumstance, this Court has held that until and unless the declaration of mundkarship is obtained by such person, the question of carrying out any reconstruction of the dwelling house, does not arise. Learned Senior Counsel has thereafter taken me through the impugned Order passed by the Courts below and pointed out that both the Courts below have gone on the wrong premise that the Respondent is a Mundkar of the suit premises merely because his name is mentioned in the other rights column. Learned Senior Counsel further pointed out that as the Respondent has not established any right to the suit premises, the question of permitting the Respondents to carry out any construction activity therein, would not arise. Learned Senior Counsel further pointed out that both the Courts below have erroneously exercised jurisdiction in refusing the relief of temporary injunction which calls for interference under Article 227 of the Constitution of India. 8. On the other hand, Shri R. G. Ramani, learned Counsel appearing for the Respondents, has supported the impugned Order. Learned Counsel further pointed out that the Respondent is a mundkar of the suit premises. Learned Counsel has thereafter taken me through the provisions of Section 7 and 7-A of the Mundkar Act and pointed out that a mundkar is entitled to carry out reconstruction and/or repair the dwelling house within the plinth area. Learned Counsel further pointed out that the acts which have been done by the Respondents in exercise of the right guaranteed to the mundkar under the said provisions of the Mundkar Act. Learned Counsel further pointed out that the suit premise is a dwelling house which was in occupation of the Respondent and his ancestors and that the Respondents have been carrying some religious obligations therein on some auspicious occasion. Learned Counsel further pointed out that though as per the survey plan the plinth area is shown as 206 square metres nevertheless, the construction put up by the Respondents admeasuring only 192 square metres. Learned Counsel as such submits that as the construction being put up was within the plinth area, the Courts below have rightly refused the application for temporary injunction filed by the Petitioners. Learned Counsel as such submits that as the construction being put up was within the plinth area, the Courts below have rightly refused the application for temporary injunction filed by the Petitioners. Learned Counsel further pointed out that considering the facts and circumstances of the case as the Respondents are mundkars of the suit premises, the question of granting any injunction, restraining the Respondents from carry out any construction in the suit property would not arise. Learned Counsel as such submits that the Petition deserves to be rejected. Learned Counsel pointed out that the Petitioners have approached this Court on equitable reliefs with unclean hands and, as such, there is no question of granting any temporary injunction. 9. I have duly considered the submissions advanced by the learned Counsel appearing for the respective parties. I have also gone through the records and with the assistance of the Counsel, perused the material as pointed out by both of them. On going through the material and the pleadings of the parties, it cannot be disputed that the Petitioners are the owners of the suit property. It can also not be disputed that a mundkar within the provisions of Section 7 and 7-A of the Mundkar Act, is entitled to repair and/or reconstruct the dwelling house within the plinth area. But, however, the point to be considered at this stage would be to ascertain as to whether the Respondents have prima facie been able to establish that they are the mundkars of the dwelling house. In the present case, admittedly, the Respondents have not produced any registration of their claim of mundkar under the Mundkar Act nor any declaration to that effect. The only entry sought to be relied upon by the Respondents to claim that they are mundkars of the house is an entry in the other rights column to the effect that the house belongs to them. Merely because an entry in the survey records discloses that the house belongs to the father of the Respondents by itself does not establish that the Respondents are mundkars of the suit house unless and until they satisfy the requirements of the definition of a mundkar under the Act. 10. Merely because an entry in the survey records discloses that the house belongs to the father of the Respondents by itself does not establish that the Respondents are mundkars of the suit house unless and until they satisfy the requirements of the definition of a mundkar under the Act. 10. On going through the reply and/or written statement of the Respondents, I find that it is the contention of the Respondents at para 16, inter alia, that all the surviving descendants of the said Roulu Mortu Naik are in open, peaceful, lawful possession and enjoyment of the suit house with fixed habitation with the consent of the Petitioners herein as mundkars thereof. It is further their case therein that the suit house was in continuous, lawful occupation and enjoyment with the consent of the Petitioners and with a fixed habitation of the said Roulu Mortu Naik and thereafter his descendants right from the time it was constructed by the said Roulu Mortu Naik including the Respondents and his parents till about 20 years back when due to dilapidated condition of the house and for gainful employment, the families moved out and since then the suit house is being occupied only during the religious rituals as pleaded therein. The bare reading of the said reply of the Respondents would disclose that as on the date of the filing of the suit, the Respondents were not in occupation or using the suit premises for atleast 20 years as stated by them. It is the contention of the Petitioners that the family of the Respondents ceased to occupy the suit premises for more than 20 years back. Be that as it may, one thing which can be safely gathered is that as on the date of the filing of the suit and for a continuous period, before the said date, the Respondents were not occupying the suit premises. It is also pertinent to note that before any reconstruction or any activity was carried out by the Respondent to the suit house, the Respondents themselves addressed a letter to the Petitioners for their permission. On perusal of the said letter dated 28.07.2010, addressed to the President of the Petitioners, it is, inter alia, his contention that the house is used by the family of Naik Chodankar to perform their annual Malini Pournima Zatra festival and the Taranga festival following the Dasara. On perusal of the said letter dated 28.07.2010, addressed to the President of the Petitioners, it is, inter alia, his contention that the house is used by the family of Naik Chodankar to perform their annual Malini Pournima Zatra festival and the Taranga festival following the Dasara. It is further stated therein that the house was built about two centuries back specifically for this purpose with the blessings of Devi Kumbharzuvekarin. A bare perusal of the said letter reveal that the Respondents themselves state that the house was built for the purpose of carrying out such religious functions and it was built for that specific purpose. On perusal of the said letter, there was no allegation by the Respondent that they are mundkars of the suit premises. 11. On perusal of the plan which has been produced by the Respondents, it appears that the construction which is intended to be put up in the suit property is a multipurpose hall with some rooms. The plan also discloses that a one storey structure is intended to be put up therein. Considering the said material on record, prima facie, I find that the ingredients required to come within the meaning of a mundkar under the Mundkar Act, have not been satisfied by the Respondents. The protection given to a person occupying a dwelling house is essentially in cases in which the house is used for residence. On going through the material on record, there is nothing to suggest prima facie brought forward by the Respondent that the suit house was being used for his residence. Apart from that, the Respondent himself stated in his reply, as noted herein above, that he is admittedly not occupying the suit house for more than 30 years. Considering the said material, I find that the Judgment of the learned Single Judge of this Court in the case of ShriVicente Cabral vs. Smt. Sunandabai Dayanand Bandodkar (supra) clearly applies to the facts of this case. The learned Judge at para 5 has observed thus: "5. There is no dispute and the Courts below had arrived at a concurrent finding that the house belonging to Pasquinha Cabral had been in occupation of the petitioner and his family. The learned Judge at para 5 has observed thus: "5. There is no dispute and the Courts below had arrived at a concurrent finding that the house belonging to Pasquinha Cabral had been in occupation of the petitioner and his family. Further, it is not also in dispute, that, as a result of the fall of a coconut tree on the said house, the same was damaged and the petitioner and his family vacated it and went to reside in another house situated nearby. It is also common ground that sometime after the petitioner vacated the house he started to re-construct the same after demolishing the original mud house. Thus, the question that arises is whether the petitioner was entitled to reconstruct the same house. His case is that he is a mundkar who was residing in the said house and, therefore, by virtue of the provisions of the Mundkar Act, he is entitled to reconstruct his mundkarial house in the plinth area. There is no doubt that, under the prevailing law a mundkar is entitled to repair or reconstruct his mundkarial house provided he does not exceed the original plinth area. But, the relevant point to consider is that only a mundkar is entitled to reconstruct or repair his mundkarial house within the original plinth area. Therefore, as rightly pointed by the learned District Judge, the essential fact to be established by the petitioner was that he was mundkar of the suit house. It is an admitted fact that though the petitioner has power to get the declaration of mundkarship and if approached the Mamlatdar to get a declaration of Mundkarship, such declaration has not yet been made. If this is the case, as rightly pointed out by the learned District Judge, the petitioner cannot be considered at this stage to be a mundkar and so, since he has not yet established that he is a mundkar and since his right to reconstruct is derived from the quality of mundkar, it is manifest that he is not, at all, entitled at this stage to reconstruct the suit house. Mr Ferdino Rebello, faced with this difficulty, argued that the evidence on record shows clearly that the petitioner had been occupying the suit house that he had been paying the house tax and that he had moved the Mamlatdar to get the declaration of mundkarship. Mr Ferdino Rebello, faced with this difficulty, argued that the evidence on record shows clearly that the petitioner had been occupying the suit house that he had been paying the house tax and that he had moved the Mamlatdar to get the declaration of mundkarship. He has, therefore, done everything within his power to get the declaration of mundkarship and if such declaration was not yet made, he could not be penalised for such circumstances. The Court, according to the learned advocate, has to bear in mind that the evidence adduced in sufficient to show that, in all probabilities, the petitioner is a mundkar of the suit house and, therefore, the learned Trial Judge was right in so holding and in dismissing the application for injunction though restraining the petitioner to reconstruct the house within the plinth area of 58 sq. mts. I find it difficult, to accept this contention of Mr. Rebello. In fact, it is not denied that the jurisdiction to declare a person to be a mundkar is vested by law exclusively in the Mamlatdar. If this is so, the learned Trial Judge was wrong, after conceding in para 5 of his order that “the issue of mundkarship has to be decided by the Mamlatdar and not by this Court”, to add that “when the materials placed before the Court at this stage prima facie show that the claim of the defendant regarding mundkarship and possession of the suit house is well founded, then the Court will refrain from granting the injunction in favour of the plaintiff”. By making these observations, the learned Trial Judge on one hand accepted that he had no jurisdiction and held that the petitioner was a mundakr and, therefore, had a right to reconstruct the house. This is so, because by holding that the respondent was not entitled to any injunction since the claim of the petitioner regarding mundkarship and possession of the house was well-founded, the learned Trial Judge gave practically a free hand to the petitioner to reconstruct the house in exercise of his alleged right to do so as a mundkar. This is so, because by holding that the respondent was not entitled to any injunction since the claim of the petitioner regarding mundkarship and possession of the house was well-founded, the learned Trial Judge gave practically a free hand to the petitioner to reconstruct the house in exercise of his alleged right to do so as a mundkar. This approach of the learned Trial Judge is manifestly erroneous, for such right to reconstruct is given only to a mundkar and therefore, unless and until the capacity of mundkar had been established petitioner ought to have been restrained from proceeding with the reconstruction of the house as sought by the respondent. Besides, the facts on record show that the house had been seriously damaged by the fall of a tree and had been demolished and therefore, at the relevant time of the filing the suit, no house, as such existed in the place where previously the house of Pasquinha was situated. Hence, whatever occupation the petitioner had in respect of the house of Pasquinha, the same had ceased to exist at the time he vacated it and demolished the same. This being so and in the absence of a declaration of mundkarship, the learned Trial Judge, ought to have considered that the right of ownership includes possession and, as such, prima facie the respondent had a case to restrain the petitioner from reconstructing the house, which reconstruction, in any event, in the circumstances of the case would amount to an alteration or change of the status quo. Manifestly, in the premises, it would be wrong to hold that the learned District Judge had erred in setting aside the order made by the learned Trial Judge. On the contrary, the learned District Judge hit the nail on the head and touching the essential and material question to be decided, rightly held that since the petitioner has not yet established his capacity of mundkar, he was not entitled to reconstruct the house, with the result that the respondent was entitled to get an order of the Court restraining him from doing any construction in the property without her permission or authorization.” Considering the ratio laid down by the learned Single Judge of this Court, I find that the Respondent has failed to establish prima facie that he has any right to reconstruct the house as a mundkar. The benefit given under Section 7 and 7-A of the Mundkar Act, is to mundkars. In the present case, prima facie, such right has not been established and the Courts below were not justified to refuse the temporary injunction on the ground that the Respondent is occupying the suit premises as a mundkar. Merely because the name of the father of the Respondents is shown in the other rights column by itself does not mean that the occupation of the said person in such house comes within the meaning of a 'mundkar' under the Mundkar Act. The Courts below as such have erroneously dismissed the application for temporary without considering the fact that prima facie the Respondent failed to establish that he is a mundkar of the suit house. Hence irreparable loss shall occur to the Petitioner in case status quo is changed as their proprietary rights would be affected. Balance of convenience is also in favour of the Petitioner as the ownership of the suit property is not disputed 12. Be that as it may, in view of the entries in the other rights column in the Survey Records, I was initially inclined as it was submitted that only part of the house was demolished to allow the repairs of the wall which had collapsed. But, however, the learned Counsel appearing for the respective parties have brought the photographs of the existing situation at the site which discloses that the suit house has been raised to the ground. There are no vestiges of the original walls nor on the basis of such material on record, can the plinth area be identified. As noted herein above, the Survey Records disclose the existence of the suit house. The records also reveal, prima facie, that such house belongs to the father of the Respondents. Though it is the contention of the learned Counsel appearing for the Petitioners that a licence was given to the father of the Respondents, and the house belongs to the Petitioner, there is no pleading or material on record to show when this so called licence was given and in what manner such licence was terminated. Whether the suit house belongs to the Petitioners and/or belongs to the Respondent or his ancestors is a matter which would have to be adjudicated after evidence is recorded in the suit. Whether the suit house belongs to the Petitioners and/or belongs to the Respondent or his ancestors is a matter which would have to be adjudicated after evidence is recorded in the suit. At this stage, considering the Survey Records, prima facie, the existence of the house and that the same belongs to the father of the Respondent would have to be accepted. But, however, merely because the existence of the house is established, does not by itself entitle the Respondents to rebuilt the house within the plinth area which is a right reserved only to a mundkar. As the house has been raised to the ground, it would not be appropriate at this stage to permit the Respondents to change the status quo at the site without getting the alleged rights of the Respondents adjudicated in accordance with law. 13. Considering that the application for temporary injunction is an equitable relief, one will have to balance the equity whilst disposing of the application for temporary injunction. Here is a case where, prima facie, the existence of the house belonging to the Respondent has been established which today does not exist at the site. On the other hand, the claim of mundkarship, prima facie, has not been established. In the background of such situation, I find it appropriate that the Petitioners would be entitled to an injunction to restrain the Respondent, his servants, agents, etc., from carrying out any construction activity in the suit property subject to some terms. 14. Considering that the Respondent would have to be deprived of the occupation of the suit house and in case he at all succeeds in his claim as pleaded in the reply, I deem it appropriate that the Petitioners should deposit a sum of Rs.1,00,000/-with the learned Trial Judge, which would be subject to any final Orders which may be passed in the suit. The amount, if deposited, shall be invested by the learned Judge in fixed deposit of any National Bank for a period of one year and the same shall be renewed from time to time until the disposal of the suit. The amount, if deposited, shall be invested by the learned Judge in fixed deposit of any National Bank for a period of one year and the same shall be renewed from time to time until the disposal of the suit. Considering the nature of the dispute in the present case and taking note of the contention of Shri Ramani, learned Counsel appearing for the Respondents, that in case any injunction is granted in favour of the Petitioners, the Respondent will be deprived of performing the religious functions on account of such relief if granted in favour to the Petitioners, I find it appropriate that the Regular Civil Suit no.24/2012/B filed by the Petitioners is to be expedited. 15. The findings arrived at while disposing of the above Writ Petition are only prima facie findings for the purpose of deciding the application for temporary injunction and any such findings shall not influence the learned Trial Judge whilst disposing of the suit on merits or any other authority whilst deciding the claim of the Respondents on merits. In case the Respondents approach the concerned authorities for getting their rights adjudicated, the said authorities shall independently decide the matter in accordance with law. 16. In view of the above, I pass the following: (i) The impugned Orders dated 20.04.2012 passed by the learned Trial Judge and the impugned Order dated 29.08.2012 passed by the learned Appellate Court, are quashed and set aside. (ii) The Respondents are restrained by temporary injunction pending the hearing and final disposal of the suit from carrying out any construction activity in the suit property bearing survey no. 57/10 of Orgao Village, Ponda Taluka, subject to the Petitioners depositing before the learned Trial Court a sum of Rs.1,00,000/-within six weeks from today. (iii) The learned Trial Judge is directed to dispose of Regular Civil Suit no. 24/2012/B as expeditiously as possible. (iv) The amount of Rs.1,00,000/-deposited shall be subject to further Orders to be passed in the suit. (v) Rule is made absolute in the above terms. (vi) Petition stands disposed of accordingly with no Orders as to costs.