CORINA COTA Vs. JOHN JOSEPH NORONHA

JUDGEMENT

(1.) BY this civil revision application, the petitioner/original decree-holder, is challenging the order dated 2nd December, 2000, passed by the learned Civil Judge, Junior Division, Margao, in an application under Order 21 Rules 97 and 99 of the Code of Civil Procedure, 1908, seeking a declaration of nullity and staying of execution of decree passed in Regular Civil Suit No. 250/84/d. By the said order, the learned Judge had directed an enquiry to be held under section 8-A of the Goa, Daman and Diu (Protection From Eviction) Act, 1975 (hereinafter referred to as the aforesaid Act ). The contention of the learned Counsel for the petitioner is that the aforesaid order suffers from a patent illegality and errors are apparent on the face of the record and the learned Civil Judge, Junior Division, Margao, ought not to have entertained and granted such a relief in the said Execution Application No. 32/97/e, at all.

(2.) THE brief facts are that the respondent No. 2 herein, who is the mother of respondent No. 1, had filed an application under section 29 of the aforesaid Act for entering her name in the register of mundkars. This application was filed by respondent No. 2 in the year 1980. The concerned Mamlatdar after holding an appropriate enquiry under section 29 of the aforesaid Act ultimately rejected the said application on 30th May, 1983, finding no merit. Aggrieved thereby, respondent No. 2 had approached the Additional Collector by way of an appeal, which was also dismissed by the Additional Collector, confirming the findings of the Mamlatdar holding that the respondent No. 2 is not entitled to have her name entered in the register of mundkars, as per section 29 of the aforesaid Act. Thereupon the respondent No. 2 again had approached the Administrative Tribunal by way of a revision, which also came to be dismissed on 13th February, 1985. In the meanwhile, the petitioner herein, namely the original decree-holder, had filed a suit against the said respondent No. 2 for possession of the suit house and the land adjacent thereto. The said suit was filed on 3rd October, 1984, which suit came to be decreed in favour of the petitioner on 31st January, 1994, whereby the present respondent No. 2 was ordered to vacate the said house alongwith the land adjacent thereto and hand over vacant and peaceful possession to the petitioner herein. In the said suit, respondent No. 2 had also filed a counter-claim seeking her right to be protected with regard to the said house, by claiming a right and title over the suit house by way of adverse possession, which claim also came to be dismissed in the said suit. Aggrieved thereby, respondent No. 2 had filed an appeal before the learned District Judge, against the said decree dated 31st January, 1994. The learned District Judge had dismissed the said appeal on 1st April, 1999, upholding the decree granted by the trial Court. When the petitioner started initiating the execution proceedings for recovery of the aforesaid house alongwith the land adjacent thereto from respondent No. 2, the respondent No. 1 herein, who is the son of respondent No. 2 filed an application under Order 21, Rule 97 of the Code of Civil Procedure, 1908, on 30th July, 1999, contending that the aforesaid decree dated 31st January, 1994, is a nullity and the same should be set aside and the same cannot come in the way of the right of respondent No. 2. In the said application, the learned Civil Judge, Junior Division at Margao had passed the aforesaid order on 2nd December, 2000 which reads as under:---

(3.) THIS civil revision application is against the aforesaid order passed by the learned Civil Judge, Junior Division, Margao. The learned Counsel for the petitioner pointed out that this attempt by respondent No. 1 is an abuse of the judicial process in as much as respondent No. 1 does not have any independent right over the said house whatsoever. If at all, only respondent No. 2 could have claimed any right and the said right also came to be rejected in as much as respondent No. 2 had made an application to get her name entered as a mundkar in the register of mundkars under section 29 of the aforesaid Act, which came to be rejected by the Mamlatdar, after a full-fledged enquiry. Thereupon respondent No. 2 had availed of an appellate judicial remedy where also respondent No. 2 could not succeed. In the meanwhile, petitioner had in fact, filed a suit against respondent No. 2 contending that respondent No. 2 is a rank trespasser and respondent No. 2 should be ordered to vacate and hand over vacant and peaceful possession of the suit house alongwith the land adjacent thereto. The suit was duly decreed on 31st January, 1994. In the said suit, the respondent No. 2 had claimed title to the suit house by adverse possession, which claim came to be rejected. Even the appeal against the same came to be rejected on 1st April, 1999. Now, at the stage of execution, suddenly the son, namely respondent No. 1 herein tried to object to the said execution by filing an application under Order 21, Rules 97 and 99 of the Code of Civil Procedure, 1908. In the said application, respondent No. 1 has prayed for a declaration that the judgment and decree dated 31st January, 1994, in Regular Civil Suit No. 250/84/d be declared null and void. Pending the same, the respondent No. 1 had prayed that the petitioner ought not to interfere by executing the said decree.