Remegio Antonio Afonso de Araujo vs Vishwanath Pandit

U.V. Bakre, J.—Heard Mr. Tamba, learned Counsel appearing on behalf of the appellants. The respondents, though duly served after admission, are absent.

This Second Appeal is directed against the judgment and decree dated 21/02/2008 passed by the learned District Judge-I, North Goa Panaji (First Appellate Court, for short) in Regular Civil Appeal No. 71 of 2006.

The said Regular Civil Appeal No. 71 of 2006 was filed against the Order dated 20/07/2006 passed by the learned Civil Judge, Junior Division, Panaji (Trial Court, for short) in Execution Application No. 91 of 1989.

The appellants were the decree holders in the said Execution Application, respondents no. 4 and 5 were the judgment debtors and respondents no. 1, 2 and 3 were the third party objectors. The respondents no 2 and 3 came on record after the death of respondent no. 1. The parties shall hereinafter be referred to as per their status in the said Execution Application.

The decree holders had filed the said Execution Application for execution of the ex-parte decree dated 03/04/1989 passed in Regular Civil Suit No. 323/1977/C, against the judgment debtors. Vide the said decree, the judgment debtor no. 1 was directed to demolish the unauthorised construction of structure of room done to the said hut in the suit property by him and to restore the suit property to its original condition within 90 days. The Judgment debtors no. 1 and 2, their agents, servants and labourers were restrained by way of permanent injunction from carrying out any further extension and/or carrying out any construction in or around the said hut in the suit property. On 08/08/1994, the Trial Court had issued the warrant of execution to the bailiff.

In the said execution Application, the third party objector (Vishwanath Pandit) had filed objections alleging, in short, as follows:

The said room is ancestral house which was constructed more than 60 years back by grandmother of the objector namely Parvati S. Naik in the property of Shri Shantaram Kenkre, who had given permanent licence to construct the same. Said Parvati Naik had only one issue namely Smt. Shantabai Sakharam Pandit, the mother of the third party and after the death of the grandmother Smt. Parvatibai and the mother Smt. Shantabai Pandit, the said room has been in possession and ownership of the third party objectors. The said hut was repaired some time in the year 1977-78 as it required urgent repairs and as the outer walls were on the verge of collapsing. The decree holders have no right to interfere with the possession of the third party objector as the objector is the mundkar in respect of the said suit premises. The objector was not a party to the suit and judgment, order and decree was obtained ex-parte in collusion with the judgment debtors. One Shaikh Yusuf was kept to guard the said suit room since there were goods lying inside which were worth thousands of rupees. The said Yusuf was allowed to occupy the outer portion of the room sometime in the year 1977 for about quite sometime till he was asked that his services were not required by the third party objectors. The third party objector was not aware about any proceedings against the said Shri Yusuf filed by the decree holders till the decree holders along with demolition squad came to demolish the said room in the year 1994. The suit room was utilised for the purpose of storage of agricultural products like cashew nuts, coconut etc. and some allied goods. The grandmother of the objector was residing in the property of one Alcantre in his house at St. Cruz, Goa when she first came to stay at St. Cruz about more than 60 years back just in front of the suit room across the road which is situated in the property of said Alcantre. The suit room was constructed by the grandmother of the third party objector in the property of Kenkre family who had allowed her to construct the same permanently and to utilise it as store room for her business purpose. The suit room was surveyed in the name of mother of the objector namely Smt. Shantabai Pandit and house tax as well as light tax stands in the name of his mother. The suit room which is described by the decree holder is different from the said room of the third party objector which bears house no. 445 and surveyed under Survey No. 61/7 of village Calapur. The third party Objector is the mundkar of the said room. Under the garb of false description of the suit hut as given by the decree holder, the decree holders are trying to dispossess the objector of the said room.

By way of reply, the decree holders alleged as follows:

The decree holder no. 2 along with her brother had filed the Regular Civil Suit No. 320/1977/C which was decreed by judgment and decree dated 03/04/1989. The said room is standing in the property known as "Prempura Adicao de Predio Palmar Cabeca out of 21 Adicoes" made out of the part of the property described in the office of the Land Registration of Ilhas under No. 17248 at page 177 of Book 45. The said property now forms distinct and separate property bearing description no. 18516 of Book no. B 49 and also inscribed in the name of the decree holders in the office under No. 23143 of Book G-36, having acquired the same by way of succession proceedings conducted in the Court of the Civil Judge, Senior Division on account of death of the father of the decree holder no. 2 Jose V. Araujo. There was mortgage in respect of the said property which formed part of the execution Proceedings bearing no. 1416/1965 filed by Smt. Angelina Filomena Dias against Baburao Venkatesh Naik and others in the Court of the Civil Judge, Senior Division Panaji wherein the Court had appointed one Mr. Jose Vincent Fernandes from St. Cruz as receiver and the said receiver had constructed a small hut having an area of 36 square metres in the said property for the purpose of storing coconuts after plucking the entire property "Cabeca". The said hut was constructed with country tiles roof in the year 1968 while the said execution proceedings were pending before the Court. The said Court receiver namely Mr. Jose Vincent Fernandes died in the year 1970 and thereafter Mrs. Julia Silva Vaz was appointed as receiver of the said property and said Mrs. Julia Silva Vaz allowed Shri Shaikh Yusuf, the judgment debtor no. 1 to occupy the said hut without obtaining permission from the Court. The Judgment debtor no. 1 was also allowed to extend the front portion of the said hut thereby making a room of about 3 x 4 square metres, by covering the same with palm leaves. The said judgment debtor no. 1 had carried out the construction of permanent nature from inside the room with full knowledge and consent of the previous receiver Smt. Julia Silva Vaz, in order to dispossess the decree holders from the suit property. The said Smt. Julia was removed as receiver by the Court and Shri Shrikant Kenkre, the judgment debtor no. 2 was appointed as receiver. The suit room does not at all belong to Shantabai Pandit as the same was constructed by the receiver as store room. It is false that the objector was mundkar in respect of the said room situated in the property surveyed under no. 61/7. The third party objector is a landlord having his residence at Morod, St. Augustin, St. Cruz which bears house no. 848. The title to the suit property has been determined by the Court by holding that the decree holders are the owners of the said property in Civil Suit No. 323/77/C and an order to demolish the unauthorised structure has been passed.

An inquiry was conducted by the Trial Court. The third party objector, Shri Vishwanath Pandit examined himself as AW1; Bhagwan Navelkar as AW2; Edmundo Rodrigues as AW3; and Bhagi Pandit as AW4 whereas the decree holders examined the decree holder no. 2, Maria Araujo as DW1.

Upon consideration of the material on record, the learned Trial Court held that the third party objector failed to establish that he was a mundkar having fixed habitation which is the main ingredient of the definition of Mundkar. The Trial Court held that it is settled law that the entries in the Revenue record cannot form the basis of declaration of title with regard to the immovable properties and those are meant only for the fiscal purposes. The Trial Court found that the objector had taken inconsistent pleas in his application, rejoinder and affidavits etc. filed. The Trial Court also found that there was evidence to show that the third party was residing in his own property having his own house and besides he also got many properties. The Trial Court held that since the third party had not proved right to the suit room, the question of making any other persons as parties to the suit did not arise. The Trial Court found that the third party was not at all residing in the suit property. The Trial Court found that there was no certificate issued by the Village Panchayat to substantiate that house no. 445 stood in the suit property belonging to the decree holders. It was found that no license from Village Panchayat or other documents regarding payment of tax, assessment of business tax paid to the Panchayat or Income tax assessment etc. have been produced on record. Consequently, the Trial Court held that the objector failed to prove his case. The third party objection was therefore dismissed.

Aggrieved by the judgment of the Trial Court, the third party objectors filed the Regular Civil Appeal No. 71/2006 before the District Court North Goa, Panaji. Vide Judgment and Order dated 21/02/2008, the learned First Appellate Court allowed the appeal and set aside the order dated 20/07/2006 passed by the Trial Court in the execution application and dismissed the said execution application no. 91 of 1989 holding that the same is not executable, as against the third party objectors. The First Appellate Court held that on the vague pleadings which were averred by the third party objectors, no issue of mundkarship had arisen in the said proceedings. The First Appellate Court held that the house tax receipts supported the case of the third party objectors that they are in lawful possession of the suit house. It further found that in the other rights column of survey no. 61/7 there is entry of existence of house belonging to Shantabai Sakharam Pandit. It held that the said entry in the survey records read with survey plan and house tax receipts prove that the third party objectors, through their mother had derived right and title to the suit house. The First Appellate Court also held that the decree of the Civil Court only directs demolition of the extended room of 12 square metres, adjoining to the existing hut. The First Appellate Court held that the structure in possession of the third party in no way can be considered to be the room ordered to be demolished. The First Appellate Court found that the decree holder had not produced any sketch showing the portion called as the extended room of 12 square metres. The First Appellate Court, therefore, held that the third party had sufficiently made out the case of their lawful possession of the suit house. It held that the decree was not executable against the third party objectors without having proved by a sketch plan, the area of the 12 square metres of the extended room. Consequently, the judgment and order dated 20/07/2006, passed by the Trial Court came to be set aside.

It is against the said judgment and order dated 21/02/2008, passed by the First appellate Court, that the present Second Appeal has been filed which is admitted on the following substantial questions of law:

Whether in execution proceedings, filed by decree holder whose suit is based on title derived by him by virtue of inscription dated 8/04/1954 together with the decree of the Civil Court in Suit bearing No. 320/1977/C, could the objections/resistance to the execution proceedings be entertained at the instance of a person (third party objector) who is admittedly not a Mundkar of the suit house either by admission of any of the parties to the proceeding or by virtue of declaration by competent authority and when he has based his objection on the plea of mundkarship; and such plea has been rejected by the Courts below?

In the light of the mandate of Order XXI Rule 97(2) of the CPC was the Trial Court competent in adjudicating as to whether the ingredients of Mundkarship were made out or was it incumbent upon the Trial Court to take the plea of possession as raised by the third party objector as true in absence of any semblance of title to which the possession was attributable and resist the execution of the decree as prayed by him; or had it to refer the matter to appropriate forum and that the Trial Court had exceeded its jurisdiction in prima facie finding that there is neither pleading not proof with respect to the issue of Mundkarship, as held by the 1st Appellate Court?

Whether the conclusion arrived at by the 1st Appellate Court while reversing the decree of Trial Court, that there is presumption of possession in suit house with the predecessor-in-title of the Third Party objector, solely based on survey records, in absence of title, is legally tenable when the claim on which the third party objections have been raised is on the basis of right of Mundkarship and the ingredients thereof is categorically not pleaded or proved before the Courts below?

Whether finding of the 1st Appellate Court that the trial court had erred in holding that the third party objector had established his possession over the suit room legally tenable, when it is a well settled and recognized principle that possession follows title; and more so when the possession sought for is based only on survey/revenue records and the 1st Appellate Court has accepted the well established principle that the survey/revenue records are merely presumptive in nature?

Mr. Tamba, learned Counsel appearing on behalf of the decree holders contended that since the third party objectors failed to prove that they are the mundkars of the suit house, their occupation of the suit house is unlawful and they have no title of title to remain in possession of the same. He submitted that though in Form No. I and XIV of survey no. 61/7, the name of the mother of the deceased objector is shown as owner of the house, the same cannot confer title of the suit house in favour of mother since it is well settled that survey records cannot confer title. He submitted that there is valid decree and that it is the receiver appointed by the Court who had inducted some third party into the house and, therefore, once decree is obtained against the Court Receiver, the third party objectors cannot have any case. He, therefore, submitted that the impugned judgment and order passed by the First Appellate Court is liable to be quashed. Learned Counsel relied upon the following judgments:

(a) Ashan Devi and Another Vs. Phulwasi Devi and Others,

(b) Tilak Raj Bhalla Vs. Ulhas Narayan Sanvordekar (since deceased) represented by his L.Rs. and Others,

(c) Ramkrishna Girishchandra Dode and others Vs. Anand Govind Kelkar and others,

I have gone through the material on record and have considered the submissions advanced by the learned Counsel for the decree holders as also the judgments relied upon.

The Civil suit No. 323/1977/C was filed by the decree holders, initially against Shri Shaikh Issuf and Smt. Julia Silva Vaz for mandatory injunction directing the defendant no. 1 that is Shri Shaikh Issuf to demolish the unauthorised structure of room done to the said hut in the suit property by him and to restore the suit property in its original condition and for permanent injunction to restrain the defendants namely Shri Shaikh Issuf and Smt. Julia Silva Vaz, their agents, servants and labourers from carrying out any further act of extension and/or carrying out any construction in and or around the hut in the suit property. Subsequently, the name of Julia Silva Vaz was replaced by the name of Shri Shashikant Kenkre, in the said suit. The said suit had proceeded ex-parte against the said defendants and was decreed since the evidence led by the decree holders had gone unchallenged. Smt. Julia Silva Vaz had filed her written statement filed in the said suit, which is at Exhibit DW1/M in the Execution Proceedings. Smt. Julia Silva Vaz had pleaded that the suit was bad for non-joinder of necessary parties as the occupant of the suit structure, Shri Vishwanath Pandit has not been joined as a party. She had denied that any hut was constructed by the previous receiver namely Jose Vicente B. Fernandes. She averred that Vishwanath Pandit was already occupying the house in the said property prior to her entering the property. The judgment in the said Civil Suit No. 323/1977/C, on account of unchallenged facts as stated by the plaintiff no. 2, in her evidence, holds that the said hut having an area of 36 square metres was constructed by the receiver. The judgment in Civil Suit no. 323/1977 is not binding on the third party objectors. The evidence led in the execution proceedings was not sufficient to hold that the said hut was constructed by the receiver. Insofar as the said hut is concerned, absolutely no relief of whatsoever nature was claimed by the decree holders in the said suit. The evidence in execution proceedings establish that the third party objectors were occupying the said house since prior to the filing of the said suit. Therefore, under the garb of the execution of the decree in Civil Suit no. 323/1977, the question of the third party objectors who have proved that they are occupying the said hut, being vacated there from, does not arise. There is no prayer of demolition of the said hut asked for by the plaintiffs. Insofar as the unauthorised construction of room allegedly done to the said hut, is concerned, the said unauthorised structure admeasures 3 x 4 Square metres i.e. 12 Square metres. As against the judgment debtors, there would be no difficulty in executing the decree. However, since there is absolutely nothing on record to identify only the said unauthorised structure and the said hut separately, the decree to demolish the unauthorised structure is not capable of being executed. The First Appellate Court has rightly observed that the decree is not executable against the third parties without having proved by a sketch plan, the location of the area of 12 square metres of the extended room. On this ground itself, the impugned judgment and order passed by the learned First Appellate Court cannot be set aside.

Admittedly, in the promulgated survey records i.e. Form No. I and XIV of survey no. 61/7, the name of Shantabai Sakharam Pandit i.e. the mother of the third party objector figures in the other rights column. It is not the case of the decree holders that the judgment debtors or either of them had permitted the third party objectors to occupy the said hut situated in the property bearing survey no. 61/7. Admittedly, the third party objectors were not parties to the said Civil Suit No. 323/1977/C. It was pleaded by the decree holders that the judgment debtor no. 1 Shri Shaikh Yusuf was allowed by the receiver, Smt. Julia Silva Vaz, to construct the said hut and further to extend the same in its front portion by making a room of 3 x 4 square metre. However it was never the case of the decree holders that the either the receivers or said Shaikh Issuf permitted the third party objectors to occupy the said hut and said room of 12 square metres. It is true that the third party objectors claimed to be mundkars of the said house. As has been rightly held by the First Appellate Court, in view of the vague pleadings no issue of mundkarship had arisen in the said execution proceedings. However, the evidence led in the execution proceedings by the third party objectors sufficiently proves their lawful possession in respect of the suit house. The plaintiffs did not file any suit for recovery of possession. Merely by asking for demolition of the alleged unauthorised construction admeasuring 12 square metres which cannot be identified and for permanent injunction which has been sought for, the decree holders cannot succeed in executing the decree, as against the third party objectors.

In the execution application, the decree holders have prayed for the assistance of the Court in demolishing the unauthorised construction of room done to the said hut in the suit property by the judgment debtor no. 1; to restore the suit property to its original condition and to restrain the judgment debtors no. 1 and 2, their agents, servants and labourers from carrying on any other extension and or any construction in and around the suit property. Insofar as the second part regarding permanent injunction is concerned, there is no dispute that the judgment debtors are not at all interested in the execution and it is nobody''s case that any further extension or construction has been carried out or is intended to be carried out in the suit property, by the judgment debtors. As already stated above, the unauthorised structure of 12 square metres has not been identified.

I have perused the judgments relied upon by the learned Counsel for the decree holders and in my considered view, they do not help the decree holders in any manner.

In the result, the substantial questions no. 1, 3 and 4 are answered against the decree holders and the substantial question no. 2 does not arise.

There is no substance in the present Second Appeal. Hence the same is dismissed. However, in the facts and circumstances of the case no order as to costs.