Pramila Prabhakar Arlekar v. Antonieta Adelina Temudo
2018-12-17
C.V.BHADANG
body2018
DigiLaw.ai
JUDGMENT C. V. Bhadang, J. - Rule returnable forthwith. The learned counsel for the respondent nos.1 to 4 waives service. Heard finally by consent of parties. 2. It is easier to obtain a decree, than to get it executed. 3. The late parents of the respondent nos. 1 to 4 (decree holders) filed Regular Civil Suit No.84/1998 against the fifth respondent, for eviction and possession of a house bearing no.407/A (Old House no. 407) situated in survey no. 4/7 at Calangute, Bardez, Goa. The fifth respondent, who was the defendant, in the suit, raised a plea of mundkarship. The trial court framed an appropriate issue and it was referred to the Court of Mamlatar at Mapusa. The case made out by the fifth respondent was that he was a mundkar in respect of the suit house, in which he was residing along with his family members. The petitioners herein happen to be the wife and the daughter of the fifth respondent. 4. The learned Mamlatdar decided the issue in the negative on 31/12/1990 holding that the fifth respondent was not the mundkar of the suit house. The fifth respondent unsuccessfully challenged the said order initially before the Additional Collector and thereafter before the Administrative Tribunal, in Mundkar Revision application no.73/2000, which was dismissed on 12/2/2014. 5. After the Mamlatdar decided the issue in the negative, the civil court took up the trial of the suit and the suit was eventually decreed on 6/10/2001 directing the fifth respondent to hand over the vacant possession of the suit house to the decree holders and to demolish the illegal structures constructed by him. It is a matter of record that the fifth respondent challenged the same before the learned District Judge in Regular Civil Appeal no.139/2001 which was dismissed on 30/9/2016 and thereafter before this Court in Second Appeal no.29/2017, which was dismissed on 3/3/2017. 6. After the trial court decreed the suit the decree holders are seeking the execution of the said decree in Execution Application no.58/2002/C, that is, for about sixteen years now. (Normally this should have laid to rest all the contentions and the available challenges). However, the petitioners herein approached the Mamlatdar in the year 2014 after the revision application filed by the fifth respondent challenging the decision on the mundkarial issue was dismissed.
(Normally this should have laid to rest all the contentions and the available challenges). However, the petitioners herein approached the Mamlatdar in the year 2014 after the revision application filed by the fifth respondent challenging the decision on the mundkarial issue was dismissed. That application is filed purportedly under section 6 and 8A of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (Mundkar Act, for short). The petitioners are seeking a declaration that the petitioners "or either of them are mundkars of the suit dwelling house" and for injunction restraining the respondents or anybody on their behalf from interfering with their possession of the suit house. It may be mentioned that the said application is filed against the respondent nos.2 to 5 and one Pravin Arlekar, who happens to be the son of the petitioner no.1 and the fifth respondent and the brother of the petitioner no.2. It is contended that the fifth respondent has left the house on account of his mental illness about ten years back and Pravin Arlekar was acting as his dully constituted attorney. It is contended that Pravin Arlekar has conspired with the decree holders and they are trying to evict the petitioners. 7. It appears that the learned Mamlatdar passed the following ad interim ex parte order on 12/1/2015. (The order is produced verbatim): 12.1.2015 Adv. for the Applicants present. Adv. for Opp. Nos.4 and 5 present. Adv. for the Applicants stated that Opp. No.1 to 3 are in collusion with Opponent no.4 and therefore status quo may be granted. Status quo so therefore granted against Opp. no.1 to 3 this should not come the house of Applicants until further orders. Applicants to get the from address on record and concerned clerk to issue the notices. Adv. For Opp. no.4 & 5 to file their reply on next date. Matter fixed for hearing on 22/1/2015 at 10.30a.m. The respondents/decree holders have appeared in the matter. The ex parte order has neither been confirmed nor rescinded till date and the matter is pending before the learned Mamlatdar. 8. The petitioners filed an application "for obstruction of the judgment and decree dated 6/10/2001 "before the Executing Court in March 2017, which is registered as Civil Misc.
The ex parte order has neither been confirmed nor rescinded till date and the matter is pending before the learned Mamlatdar. 8. The petitioners filed an application "for obstruction of the judgment and decree dated 6/10/2001 "before the Executing Court in March 2017, which is registered as Civil Misc. Application no.25/2017/C. By the said application, the petitioners sought, recall of the order dated 7/2/2017 passed by the Executing Court directing a possession warrant to be issued for execution of the decree and in the alternative to permit the petitioners to intervene and to implead themselves in the execution proceedings. 9. The application was opposed on behalf of the respondent nos.2 to 4 on the ground that this is yet another attempt to forestall the execution of the decree, which has been confirmed up to this Court and even the finding of the Mamlatdar that the fifth respondent is not a mundkar has been confirmed in appeal as well as in revision application by the learned Administrative Tribunal. 10. The Executing Court by the impugned order dated 15/2/2018 has dismissed the application which order is subject matter of challenge in this petition. 11. I have heard Shri Desai, the learned counsel for the petitioners and Shri Coelho Pereira, the learned Senior Counsel for the respondent nos.2 to 4 . With the assistance of the learned counsel for the parties, I have gone through the record. 12. It is submitted by Shri Desai, the learned counsel for the petitioners that there is an order of the Mamlatdar i.e. the competent authority under the Mundkar Act, which is passed on 12/1/2015 directing status quo to be maintained which cannot be ignored by the civil court. Reliance in this regard is placed on the decision of this Court in the case of Jency Leocadia Costa e Pereira and others Vs. Aleixinho Fernandes and others , (2016) 1 MhLJ 449 , in order to submit that the jurisdiction of the civil court in respect of matters/issues which are required to be settled, decided or dealt with by the Mamlatdar or the Collector or the Government or the Administrative Tribunal is specifically barred. It is submitted that the respondent nos.2 to 4 have not chosen to challenge the order dated 12/1/2015 and thus the Executing Court in the face of the said order could not have dismissed the application filed by the petitioner.
It is submitted that the respondent nos.2 to 4 have not chosen to challenge the order dated 12/1/2015 and thus the Executing Court in the face of the said order could not have dismissed the application filed by the petitioner. The learned counsel has referred to the written notes of arguments filed by the petitioner in order to submit that the Executing Court has not considered any of the contentions as raised including the effect of the decision of this Court in the case of Jency (supra). 13. Shri Coelho Pereira, the learned Senior Counsel has supported the impugned order. It is submitted that the petitioners cannot claim any independent right of mundkarship in respect of the suit house particularly when a similar claim of the husband of the petitioner no.1 and father of the petitioner no.2 has been negatived and which order has attained finality. It is submitted that this is only an attempt to get over the effect of the decree which has attained finality. The learned Senior Counsel points out that the petitioners intentionally gave a wrong address of the respondent although they were aware that the respondents are residing at London and obtained an ex parte order from the Mamlatdar on 12/1/2015. It is submitted that inspite of efforts, the matter has not been decided and the petitioners are trying to prolong the the execution of the decree. 14. It is submitted that the decision in the case of Jency (supra) would be distinguishable on facts as in that case, the appellants/original plaintiffs, who were the bhatkars, had filed independent proceedings for negative declaration which was rejected by the Mamlatdar and was confirmed in appeal by the Collector. It was in these circumstances held that the suit as framed and filed was barred, as the civil court would lack jurisdiction to entertain the same. 15. I have given my anxious consideration to the rival circumstances and the submissions made. 16. The mundkarial issue raised in respect of the same dwelling house, has already been considered and decided by the Mamlatdar, which is the competent authority and that finding has been confirmed in appeal and the revision and has attained finality. In the case of Jency (supra) the suit was filed for a declaration that the order passed by the Mamlatdar and the sanad issued by the Deputy Collector after purchase of the mundkarial house was void.
In the case of Jency (supra) the suit was filed for a declaration that the order passed by the Mamlatdar and the sanad issued by the Deputy Collector after purchase of the mundkarial house was void. It was thus contended that in that case that apart from lack of jurisdiction under sub-section 2 of section 31 the bar in the later part of sub section 2 of section 31 of the said Act (as regards, any order passed by any such authority under the said Act, being questioned before the Civil Court) would also be applicable. Thus in my considered view, the learned Senior Counsel for the respondents is right in contending that the case of Jency (supra) turned on its own facts and is distinguishable. 17. Coming to the order dated 12/1/2015 passed by the learned Mamlatdar it cannot be said that it prohibits the execution of the decree, inasmuch as it only shows that the respondent nos.1 to 4 therein should not "come to the house and grants status quo against the present respondent nos. 2 to 4 18. The order of injunction is always addressed or operates against a party, while an order of stay is granted by a superior court which is addressed to the Court. In the present case, it would be significant to note that the petitioner no.1 earlier in the year 2002 along with her son, Pravin Arlekar had approached the Mamlatdar at Mapusa with a similar application for declaration that they be declared as mundkars of the suit dwelling house. Then respondents (late parents of the present respondents/landlords) appeared therein and filed their written statement, after which the application was withdrawn in the year 2004. It can thus be seen that the said application was filed by the petitioner no.1 along with her son which was withdrawn way back in the year 2004 and now she has again approached the Mamlatdar, this time along with her daughter claiming independent mundkarial rights. Now it is claimed that it is Pravin Arlekar who is in collusion with the decree holders. Be that as it may, it is neither necessary nor possible to dwell on the merits of the said application. However, the fact remains that the decree of the civil court for eviction as well as the order of the Mamlatdar on the mundkarial issue of Prabhakar Arlekar have attained finality.
Be that as it may, it is neither necessary nor possible to dwell on the merits of the said application. However, the fact remains that the decree of the civil court for eviction as well as the order of the Mamlatdar on the mundkarial issue of Prabhakar Arlekar have attained finality. Thus, no exception can be taken to the impugned order. No case for interference is made out. The petition is dismissed with no order as to costs. 19. At this stage, Shri Desai, the learned counsel for the petitioners, seeks extension of the interim relief. 20. I have heard the learned Counsel for the parties. Ad interim relief, already operating shall continue for a period of three weeks.