MAHABALESHWAR PANDURANG HALANKAR Vs. DAMODAR PANDURANG HALANKAR

JUDGEMENT

(1.) Heard Shri A.F. Diniz, learned Counsel appearing for the petitioners and Mr. J. J. Mulgaonkar, learned Counsel appearing for the respondents. The above petition challenges the Order dated 30.6.2008, passed by the learned Civil Judge, Senior Division at Mapusa, in Special Civil Suit No. 36/2002/II, whereby an application filed by the petitioner to strike of the issue No. 6 framed by the learned Judge on 2.5.2007, came to be rejected.

(2.) Shri A.F. Diniz, learned Counsel appearing for the petitioner, has assailed the impugned Order and pointed out that the law is well settled that the Court cannot mechanically frame an issue to oust its jurisdiction when no particulars have been furnished by such person in the pleadings to frame such issue. Learned Counsel further pointed out that the respondents are claiming to be the Mundkars of the suit house when, on the contrary, on the basis of the pleadings in the plaint of the petitioner, it has been clearly averred that the petitioner had purchased the property in the year 1980 from the Confraria of Church and, thereafter, in the year 1982, had carried out the reconstruction of a small structure existing therein. The learned Counsel further pointed out that at para 8 of the plaint, there is a specific averment to the effect that in the written statement filed in the suit filed by the Village Panchayat with regard to the construction put up by the petitioner, the respondents had clearly admitted the fact that the suit house belongs to the petitioner. The learned Counsel further pointed out that at para 5 of the amended plaint, there is a specific averment that the structure which was existing in the property was a dilapidated structure having a width of 1.5 metres. Learned Counsel has further taken me through the written statements filed by the respondents and pointed out that the written statement is of a bare denial and no contrary averments have been made to specify either the actual area of the house nor the height thereof. The learned Counsel further pointed out that there is a vague allegation to the effect that the respondents were residing with a fixed habitation as on the date when the Mundkar Act came into force in the year 1975 though no particulars of such date of occupation have been specifically pleaded by the respondents in the written statement. Learned Counsel further pointed out that the learned Single Judge of this Court in the judgment in the case of Sadanand Vithal Naik & ors. Vs. Rashmi Dinesh Naik & ors., 2010 4 BCR 688 , has held that there can be no Mundkars created after the coming into force of the Mundkar Act in the year 1975. The learned Counsel further pointed out that considering that the suit house was constructed by the petitioner in the year 1982, this itself negates the alleged claim of the respondents that he is a Mundkar of the suit house. The learned Counsel pointed out that the respondent No. 1 is the brother of the petitioner and by no stretch of imagination, can it be considered that a brother who has an independent house can have a claim as a Mundkar of the other brother. Learned Counsel further pointed out that from the original owner the respondent No. 1 himself has purchased a piece of land adjoining to the plot purchased by the petitioner in the year 1979 wherein he has constructed his own house and residing therein. Learned Counsel further pointed out that the petitioner has also produced an application filed by the respondents way back in the year 1985 to seek for registration as a Mundkar in respect of another House No. 109/6 of the same Confraria. The learned Counsel further pointed out that the whole exercise indulged upon by the respondents is only to delay the matter by raising such dishonest claims to the detriment of the interest of the petitioners over his proprietary rights to the suit house. The learned Counsel as such has also relied upon the judgments of the Apex Court in the case of Thomas Antony Vs. Varkey Varkey, 2000 AIR(SC) 1 : in the case of Mitra of Archdiocese of Goa and Daman Vs. Mr. K. Vijayadharan, 2000 1 BCR 857 in the case of Pulmati Shyamlal Mishra & anr. Vs. Ramkrishna Gangaprasad Bajpai & ors.,1981 BCI 25 and in the case of Uttam Sambha Deshmuch & ors. Vs. Yamunabai & ors., 1998 4 BCR 441

(3.) On the other hand, Shri J.J. Mulgaonkar, learned Counsel appearing for the respondents has supported the impugned Order. The learned Counsel has further pointed out that there are specific pleadings raised by the respondents in the written statements to the effect that the respondents were residing with a fixed habitation with the consent of the Bhatkar i.e. the Confraria of Church at the time of the appointed date and, as such, the respondents are the Mundkars of the suit house. The learned Counsel has taken me through the written statements and pointed out that there are sufficient pleadings in the written statement which would raise the plea to the effect that the respondents are the Mundkars of the suit house. The learned Counsel has further pointed out that it is well settled that the Civil Court has no jurisdiction to decide the issue of Mundkarship and as such once such plea is taken, it is incumbent upon the Civil Court to stay the suit and refer the issue to the learned Mamlatdar. The learned Counsel further pointed out that this Court has held that such plea of Mundkar can be raised even at the stage of execution. Learned Counsel further submitted that there is no infirmity committed by the learned Judge whilst passing the impugned Order whereby the application filed by the petitioner to strike off issue No. 6 came to be rejected.