AGNELO BARRETO Vs. XAVIER FERNANDES

JUDGEMENT

(1.) THE defendant nos.1 and 2 in Special Civil Suit No.250/91/B have filed this Second Appeal which was admitted by the Order of this Court dated 2762003 on a substantial question of law, which reads as follows:' On the facts and circumstances of the case, whether the Appellants are entitled to continue in the suit structure to which they were shifted before demolition of the old ancestral house, till such time they are given alternate premises by Respondent Nos.1 and 2 irrespective of their claim for mundkarship of the old ancestral house'.

(2.) THE plaintiffs had filed the suit, inter alia, for the eviction of defendant nos.1 and 2 from the suit premises which was referred to as suit tenement no.1. The plaintiffs claimed that they were the owners in possession of the suit property known as 'Correalem Morod' surveyed under Chalta No.12 of P.T. Sheet No.153. In the said property there was a big residential house which has been demolished by the plaintiffs. The defendant no.1 was an orphan and was brought up in Mumbai by the mother of plaintiff no.2 by name Gracy Fernandes, though, in the Baptism Certificate the parents of defendant no.1 were shown to be Perpetua and John, the said Perpetua being the sister of plaintiff no.2. The said Gracy Fernandes who was then residing in Mumbai retired from service in the year 1975 or thereabout and came to reside in the said ancestral house of the plaintiffs. When the said big house was demolished by the plaintiffs, Aurora, the sister of the plaintiff no.1, both the defendants and defendant no.3 were residing in the big house and it was the case of the plaintiffs that the defendant nos.1 and 2 were allowed to reside in the said suit tenement no.1 temporarily. It was the case of the plaintiffs that defendant nos.1 and 2 had no right to the said suit tenement no.1 and as they were falsely claiming rights to the old residential house, the plaintiffs terminated their licence in respect of the said suit tenement no.1 and then filed a suit for their eviction. It appears that defendant nos.1 and 2 had filed a suit against the plaintiffs bearing R.C.S. No.105/90 and though initially an ex parte temporary injunction was granted in favour of the defendant no.1 in the said Civil Suit, the same was vacated and ultimately, the said Civil Suit was dismissed. The defendant no.1 also filed application claiming a right of mundkarship before the Mamlatdar in respect of the said big residential house which was also dismissed and subsequently an appeal filed against the same was withdrawn by defendant no.1 before the Collector. The defendant nos.1 and 2 denied the claim of ownership of the plaintiffs and had pleaded that they had come to know that the suit property belonged to defendant no.4. The defendant nos.1 and 2 had also pleaded in their written statement that the big residential house demolished by the plaintiffs was in fact their mundkarial house which was demolished by giving false promises by the plaintiffs, the false promise being that the defendant nos.1 and 2 would be given a flat in the place of the partly demolished old residential house but once, the defendants said mundkarial house was demolished the plaintiffs began to dodge the defendants and, therefore, the defendants were forced to file the said Civil Suit before the Civil Judge, Junior Division being R.C.S. No.105/90/D, an application for temporary injunction which as already stated have been disposed of.

(3.) MR . S. S. Kantak, the learned Counsel appearing on behalf of the defendant nos.1 and 2, has submitted that the defendant nos.1 and 2 were shifted from the old house to the suit tenement with a promise that the defendant nos.1 and 2 would be given a flat at the place where the old house was demolished and, therefore, the defendant nos.1 and 2 were not liable to be evicted until the said promise was fulfilled by the plaintiffs. Mr. Kantak, the learned Counsel has submitted that a plea to that effect was taken by the defendant nos.1 and 2 in para 2 of the written statement of the defendant nos.1 and 2 and the defendant no.1 had also deposed as regards the same and though, otherwise, the defendant no.1 had led no further evidence to support the said plea, the probabilities of the case certainly showed that it is the said plea of defendant nos.1 and 2 which had to be accepted and answered by the learned trial Court along with issue no.2 in favour of defendant nos.1 and 2 and which in fact, has not been considered at all. Mr. Kantak submits that if the said plea was considered then certainly the suit filed by the plaintiffs could not have been decreed.