AI Structured Summary
Not yet generated for this judgment
Judgment
R.M. Savant, J.—The Appellant no.1 herein has been declared as a Mundkar by Order dated 26.04.1996, passed by the Mamlatdar of Pernem, Village Taluka Pernem. The Appellant no.1 has thereafter filed an application for purchasing the dwelling house within the meaning of Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 and Rules 1977, (Act of 1975 and Rules of 1977, for short). In the said application, it was prayed that the Order as regards purchase of the area within the mundkarial rights of the Appellant no.1 be passed. It appears that a prayer was added that the land to the extent permissible in the Municipal area should be allowed to be purchased. The said prayer was made in view of the fact that later on the land in question came in the Municipal limits. The said application of the Appellant no.1 has been rejected by the Mamlatdar on the ground that two contrary reliefs have been sought. The Order of the Mamlatdar has been challenged by the Appellant no.1 by filing Mundkar Revision Application no. 154/2003 before the Administrative Tribunal, Goa. The said Revision Application is pending disposal. The above Second Appeal has been filed challenging the Judgment and Decree dated 27.04.2001, passed by the learned Addl. District Judge, Mapusa, in Regular Civil Appeal no. 38/2000 by which, the Regular Civil Appeal no. 38/2000 filed by the Appellants came to be dismissed and the Judgment and Decree passed by the Trial Court dated 31.01.2000, came to be confirmed. The Decree is to the effect that a mandatory injunction has been passed against the Appellants herein for removal of the compound wall which has been constructed around the house occupied by the Appellants and filling up the well which the Appellants have allegedly dug up on the land within the area encompassed by the compound wall. There is no dispute that a declaration has been issued in favour of the Appellant no.1 of being a Mundkar and, in fact, the plaintiffs who are Bhatkars have filed a suit on the said basis. However, the Appellate Court, after observing in paragraph 9 that the Appellant no.1 has been declared as a Mundkar, which fact has been admitted by the original plaintiffs, thereafter, on an erroneous premise that the appellant no.1 is not a Mundkar and has not purchased the dwelling house which includes the land appurtenant thereto to the extent mentioned in the Act of 1975 and Rules of 1977, has confirmed the Decree passed by the Trial Court granting the said mandatory injunction against the Appellants herein.
The Mundkars have certain rights which have been elaborated in the said Act of 1975 and Rules of 1977. The procedure for their eviction has been prescribed therein as also the machinery which can be invoked has been specified, and there is a bar to the Civil Court entertaining matters concerning a Mundkar which has been postulated in Section 31(2) of the said Act of 1975.
The above Second Appeal has been admitted on the substantial question of law which is mentioned herein under :
Whether the Civil Court has jurisdiction to entertain and try a suit by a ''bhatkar'' against a ''mundkar'' for removal of a compound wall built within the area which the mundkar is statutorily entitled to purchase u/s 15 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975?
Though the said issue has not been raised in the Courts below, the said issue is now raised in the Second Appeal, which goes to the very root of the matter.
The learned Counsel for the Appellants has relied upon various authorities in support of his contention as regards the entitlement of the Appellants to raise the said issue as regards jurisdiction of the Civil Court as also in support of his contention whether the Civil Court could have at all entertained the said suit. The whole issue, therefore, hinges around whether the Appellants as Mundkars would be entitled to protection to which they are entitled to under the 1975 Act. Since the Administrative Tribunal is now seized with the issue, as regards the application for purchase of the dwelling house filed by the Appellant no.1 herein, in my view, it would be appropriate to stay the hearing of the Second Appeal till the said issue is decided by the Administrative Tribunal. Once the said issue is decided one way or the other, a quietus could be given to the whole issue as the said issue goes to the very root of the matter. The learned Counsel for the Appellants, Shri R. V. Kamat, fairly concedes that on the determination of the said issue, would hinge the fate of the above Second Appeal.
Hearing of the above Appeal is accordingly stayed till the Administrative Tribunal, Goa, decides the said Revision Application no. 154/2003 as regards the entitlement of the Appellants to purchase the "dwelling house".
The Administrative Tribunal is directed to dispose of the said Revision Application which is pending since 2003 within a period of six months from date. List the Second Appeal for hearing in June, 2010.