AURA SERAFINA CRISPINA DE SOUZA Vs. VITORINO MENDONCA

JUDGEMENT

(1.) HEARD Shri S. D. Lotlikar, learned Senior Counsel appearing for the Petitioners and Shri J. Vaz, learned Counsel appearing for the Respondent no. 1.

(2.) THE above Writ Petition, inter alia, seeks to quash and set aside by a writ of certoriari or any other writ or direction, the Order dated 05.08.2011, passed by the learned Civil Judge, Senior Division, at Mapusa, in Execution Application No. 3/05/B.

(3.) UPON service of summons, the Respondent no. 1 filed the written statement and opposed the said suit. On the basis of the pleadings of the parties, the learned Judge framed several issues one of them being as to whether the Respondent no. 1 proves that he is residing as a Mundkar in the suit house. As the Respondent no. 1 had already initiated proceedings before the learned Mamlatdar to claim to be a Mundkar, the trial of the suit came to be stayed and the said issue was referred to the Mamlatdar for adjudication. The application filed by the Respondent no. 1 was dismissed by the learned Joint Mamlatdar by Order dated 31.08.1987 holding that the Respondent no. 1 was not a Mundkar in respect of the said house. An Appeal was preferred by the Respondent no. 1 challenging the Order of the Joint Mamlatdar which also came to be dismissed on 24.09.1998. Thereafter, Respondent no. 1 filed a Writ Petition before this Court challenging the Order of the Administrative Tribunal being Writ Petition no. 236 of 1999, which came to be dismissed by Order dated 06.09.1999. A Latter's Patent Appeal preferred challenging the Order of the learned Single Judge also came to be dismissed. Hence, the plea of the mundkarship was ultimately rejected. The Respondent no. 1 thereafter filed an application for amendment of the written statement, inter alia, seeking to delete the plea that he was occupying the said house as mundkar from the written statement and to add a plea that he was in open, exclusive and uninterrupted possession of the suit house since the year 1959 and, therefore, had become owner by adverse possession. The amendment application filed by the Respondent no. 1 was dismissed by Order dated 21.09.2000. In the Appeal filed by the Respondent no. 1 challenging the Decree of eviction passed by the learned Trial Court, the Respondent no.1 challenged the Order dismissing the application for amendment. The learned Appellate Court allowed the said amendment and permitted the Respondent no.1 to also raise the plea of adverse possession. Based on the available evidence on record, the Lower Appellate Court allowed the Appeal preferred by the Respondent no.1 and set aside the Judgment and Decree passed by the learned Trial Court. Aggrieved by the said judgment, the Petitioners preferred a Second Appeal before this Court being Second Appeal no. 44 of 2002, which came to be admitted and ultimately allowed by Judgment and Decree dated 02.12.2004. Consequently, the suit filed by the Petitioners came to be decreed. Subsequently, the Petitioners preferred an application for execution of the Judgment and Decree being Execution Application no. 3/05. The said execution was allowed by the Executing Court by its Order dated 24.03.2009 and the contention of the Respondent no. 1 opposing the said Execution Application, came to be rejected. Being aggrieved by the said Order, the Respondent no. 1 filed an appeal before the learned District Judge, being Regular Civil Appeal no. 45/2009, which also was dismissed by Judgment and Order dated 28.07.2009. The Respondent no. 1 filed an application for stay of the execution proceedings in which he contended that he has filed an application under Section 8 A read with Section 5 of the Mundkar Act to declare himself as a Mundkar of the suit dwelling house and that the application which was earlier dismissed by Order dated 31.08.1987 was only for registration under Section 29 of the Mundkar Act. Thereafter, an application filed by the Respondent no.1, came to be dismissed by the learned Mamlatdar.. Against the said Order, the Respondent no. 1 preferred an Appeal before the learned Deputy Collector, Bardez, being Mundkar Appeal no. DC/MUND/APL/3/2009 in which an exparte Order of temporary injunction was granted on 29.12.2009. The application for stay of the execution proceedings in the said Execution Application no. 3/05 before the learned Executing Court filed by the respondent no.1 was allowed by Order dated 05.08.2011 which is challenged by the petitioners in the above petition along with the said ex parte order dated 29.12.2009 passed by the respondent no.2.