Judgment : 1. The original plaintiffs have filed this appeal challenging the Judgment and Decree passed by the learned Adhoc District Judge, FTC-I, Panaji in Civil Suit No.59/2005 on 30/11/2007, by which the civil suit filed by the plaintiffs praying for declaration, demolition and mandatory injunction is dismissed. 2. The relevant facts are: The plaintiffs filed the civil suit claiming that they are the co-owners of the property bearing survey no 143/1 of village Murda within the jurisdiction of Village Panchayat of Merces and that they are having their residential house bearing H. No. E-155 in the above mentioned land. According to the plaintiffs, the suit property along with the other properties was the subject matter of the Inventory proceedings registered as Case No.8/2000/B in which the order was passed on 1.2.2000 and the plaintiffs were allotted the area of 4266 square metres out of the property which was the subject matter of the Inventory Proceedings. According to the plaintiffs, the defendant no.4 occupied one structure in the suit property and he had filed an application under section 16 (1) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act 1975 (Mundkars Act, 1975 for short) before the Mamlatdar for purchase of the said structure (dwelling house) which is pending. In this application, the defendant no.4 impleaded only plaintiff no.1 as the party. However, on an objection being raised by the plaintiff no.1 regarding non-joinder of the necessary parties, the defendant no.4 had filed an application for amendment to implead the other plaintiffs as parties in those proceedings. According to the plaintiff, the defendant no.4 surreptitiously sanctioned the plan for construction of a toilet vide construction licence bearing no.20/2005-2006/ dated 3/9/2005. This construction plan was obtained by the defendant no.4 on the basis of no objection certificate issued by the defendant no.5, who claims to be the bhatkar of the suit property. The case of the plaintiffs is that the defendant no.5 has no right to issue the no objection certificate and consequently the construction licence issued by the defendant no.1 in favour of defendant no.4 is illegal and consequently the construction of the toilet admeasuring 4.80 sq.metres is illegal and has to be demolished. In this factual position, the plaintiffs have prayed for decree for declaration that the construction of the toilet by the defendant no.4 is illegal and has to be demolished. In this factual position, the plaintiffs have prayed for decree for declaration that the construction of the toilet by the defendant no.4 is illegal and has to be demolished. The plaintiffs have further prayed for decree for direction to the defendants no.2 and 3 to revoke the approval granted to the defendant no.4 for the proposed construction and for direction to the defendant no.1 to revoke the construction licence granted to the defendant no.4. The plaintiffs have prayed for decree for declaration that the consent given by the defendant no.5 on 4/6/2005 in favour of the defendant no.4 for the construction of the toilet is bad in law. The plaintiffs have prayed for decree for injunction restraining the defendant no.4, his agents, administrators, representatives or any other person acting on their behalf from carrying out any construction on the basis of the licence granted by the defendant no.1 and/or from interfering in the suit property in any manner. 3. The defendant no.4 filed written statement and resisted the claim of the plaintiffs. The defendant no.4 has stated that in the Inventory Proceedings, the plaintiffs were allotted the plot admeasuring 4266 sq.metres after deducting the common paddy field, mundkarial house and structure identified in paragraph 2 of the compromise terms filed in the Inventory proceedings. The defendant no.4 has stated that he occupied two structures-dwelling house no.154 and work house in the suit property. The defendant no.4 has stated that Shri Narayan Gopal Naik, the father of defendant no.4 was declared as mundkar of the work house admeasuring 25 sq.metres existing in the suit property by the order passed by the Joint Mamlatdar of Tiswadi Taluka in Case No. MUND/JM-II/Merces/Reg./1/1984 on 17/9/1984 and by order passed by the Jt. Mamlatdar in Case no. Mund/JM-II/Merces/Reg-39/1985. The defendant no.4 has stated that the plaintiffs were likely to sell the dwelling house of the defendant no.4 and therefore they had filed an application for purchase of the house under section 16(1) of the Mundkars Act, 1975 and he has filed the application under section 5 of the Mundkars Act, 1975 for restraining the plaintiff no.1 from dispossessing the defendant no.4 from the dwelling house and further restraining the plaintiff no.1 from selling dwelling house to any third person. The defendant no.4 has submitted that the above mentioned two applications were pending. The defendant no.4 has submitted that the above mentioned two applications were pending. The defendant no.4 has stated that the dwelling house of the defendant no.4 was not having toilet and his family members were required to use pig toilet which was situated on the North East side of the dwelling house. The health officer had visited the suit property for site inspection and granted permission for the construction of the toilet. The defendant no.4 has stated that his wife was suffering from lumber spine disc and he is having two daughters who were aged 19 and 15 at the time of filing of the written statement and this compelled him to undertake the construction of the toilet to provide facility to his family members. The defendant no.4 has submitted that he had approached the plaintiff no.2 for seeking no objection for the construction of the toilet but he demanded Rs.25,000/- for giving No objection certificate and as the defendant no.4 had not given the above mentioned amount, the plaintiffs no.1 and 2 refused to give the No objection certificate and therefore, the defendant no.4 approached the defendant no.5 and sought her favour and the defendant no.5 considered the request of the defendant no.4 and signed the No objection certificate to enable the defendant no.4 to construct the toilet. The other defendants have also filed the written statement and have justified their respective actions. 4. The learned Trial Judge proceeded with the trial of the suit and by the impugned judgment concluded that the plaintiffs have failed to prove that the construction undertaken by the defendant no.4 is illegal. The learned trial Judge has further concluded that the plaintiffs have failed to prove that the construction licence granted to the defendant no.4 is bad in law. 5. I have heard the learned Advocates for the respective parties and examined the record with their assistance. After hearing, the following points arise for determination: (i) Whether the defendant no.4 has constructed the toilet within the same plinth area as the old structure occupied? (ii) Whether the judgment passed by the learned trial Judge suffers from any infirmity? 6. There is some controversy about the entitlement of the defendant no.5 to give the No objection certificate in favour of the defendant no.4 to construct the toilet on the suit property. The emphasis of the plaintiffs is also on this issue. (ii) Whether the judgment passed by the learned trial Judge suffers from any infirmity? 6. There is some controversy about the entitlement of the defendant no.5 to give the No objection certificate in favour of the defendant no.4 to construct the toilet on the suit property. The emphasis of the plaintiffs is also on this issue. The record shows that there is a history of litigations between the plaintiffs and the defendant no.5 and the plaintiffs are aggrieved because of the giving of the No objection certificate by the defendant no.5 in favour of the defendant no.4 for undertaking the construction of the toilet in the suit property. However, in view of my findings given on the substantial issue about the entitlement of the defendant no.4 to construct the toilet in the suit property, the grievance made by the plaintiffs regarding the issuance of the No objection certificate by the defendant no.5 becomes inconsequential. 7. It is undisputed that Shri Narayan Gopal Naik the father of defendant no.4 was declared as mundkar of House No. 154 in the proceedings under the provisions of the Mundkars Act. It is undisputed that application under the provisions of section 16 (1) Mundkars Act, 1975 for fixing the purchase price of the suit house is filed by the defendant no.4 against the plaintiffs and it is pending. It is the specific case of the defendant no.4 that he has constructed the toilet on the place whether the bathroom was already in existence. 8. The relevant extracts of the cross- examination of the defendant no.4 are as follows: I say that the area mentioned in the application for purchase under the heading description of the dwelling house the area of 221 Sq. mts. includes the portion occupied by Datta Naik. I say that the suit W.C and bathroom is included in the area 221 Sq. mts. Q. You have filed the purchase application in the year 2003 and you have stated in your para 10 of your affidavit that you had pig type toilet which was situated at a distance of 5 to 6 mts. from the dwelling house. Did 221 Sq. mts. area which you claim in your purchase application include the suit W.C and the bathroom? A. I say that the bathroom was in the area of 221 Sq. mts., and no W.C was there. from the dwelling house. Did 221 Sq. mts. area which you claim in your purchase application include the suit W.C and the bathroom? A. I say that the bathroom was in the area of 221 Sq. mts., and no W.C was there. Q. Is it true that the construction licence authorises you to construct only a toilet and not a bathroom ? A. I say that I have adjusted the toilet in the earlier existing bathroom only. To the question as to whether my bathroom is in the same place wherein it existed earlier, I answer that I have made adjustment to my bathroom. I say that the bathroom is still existing and I have made adjustment to the bathroom to construct the toilet. I say that I have constructed the toilet within the area occupied by the bathroom. Q. What do you mean by replacing the existing bathroom? A. I reduced the area of the earlier bathroom and in the remaining area of the bathroom I constructed toilets. 9. The learned trial Judge has dealt with the issue and after considering the evidence on the record has concluded that the evidence of the defendant no.4 shows that he has not extended the plinth area of the dwelling house. In view of this, the judgment passed by the learned trial Judge is proper and does not require any interference. 10. Shri Preetam Talaulikar, the learned Advocate for the appellants has relied on the judgment in the case of Peter Fernandes & Ors. Vs. Luizinha Pereira & Ors. reported in 1998 (3) ALL MR 704 and has submitted that in this judgment it is laid down that unless the rights of the mundkar in terms of Section 15 are exercised and confirmed in terms of the provisions contained in Section 16 of the Mundkars' Act, 1975, a mundkar cannot claim violation of any of his alleged rights in respect of such area around or appurtenant to the house in occupation. It is submitted by the learned Advocate that the application filed y the defendant no.4 is under section 16 of the Mundkars' Act, 1975 is still pending and therefore he cannot claim as of right that he is entitled to undertake the construction of the bathroom. It is submitted by the learned Advocate that the application filed y the defendant no.4 is under section 16 of the Mundkars' Act, 1975 is still pending and therefore he cannot claim as of right that he is entitled to undertake the construction of the bathroom. In the above referred judgment, this Court has further observed that till the rights are acquired by the mundkar over the area for which he makes the claim, the rights which relate to his occupation are also safeguarded by the other provisions of the Mundkars' Act, 1975. 11. Section 7 of the Mundkars' Act, 1975 lays down that the mundkar has a right to maintain, repair, improve or re-construct his dwelling house without in any way increasing the plinth area thereof. The explanation below Section 7 of the Mundkars' Act, 1975 provides that the term “improve” shall include construction within the dwelling house like sump tank or overhead tank, water cistern, bathroom, toilet, septic tank, soak pit and the like subject to obtaining necessary permission from the concerned authorities. In view of the provisions of Section 7 of the Mundkars' Act, 1975 and the observations of this Court in the above referred judgment that the rights of the mundkars are safeguarded, the submission as made on behalf of the appellants cannot be accepted. 12. In view of this, the appeal is dismissed. However, it is clarified that the application filed by the defendant no.4 under Section 16 (1) of the Mundkars' Act, 1975 will be considered and decided by the Mamlatdar on its own merits and any observations or conclusions in the judgment will not influence the decision of the application on its merits according to law. It is further clarified that this judgment is given on the specific plea/defence of the defendant no.4 that he has undertaken the construction of the toilet only by making adjustments to his existing bathroom and within the area occupied by the existing bathroom. Consequently, the defendant no.4 will not be entitled to claim any additional advantage on the basis of the newly constructed toilet for the purposes of adjudication of the application filed by him under Section 16(1) of the Mundkars' Act, 1975. With the above observations, the appeal is dismissed. In the circumstances, the parties to bear their own costs.