RAMCHANDRA GOMES Vs. CLAUDINA ALMEIDA

JUDGEMENT

(1.) THE petitioner had filed two applications, both dated 27-3-1981, before the Mamlatdar of Bardez seeking declaration regarding his mundkarial right and his entitlement to remain in possession since he apprehended that he would be dispossessed by the original respondent, who is the daughter-in-law of late Smt. Anna Severina Mascarenhas. In the first application, the petitioner had claimed that he was residing in the suit house as mundkar for last more than 30 years with the consent of Smt. Anna Severina Mascarenhas, who had died 8 to 9 years ago. In the second application of the same date, the petitioner claims that he was residing in the suit house since the time of his father Shri Domingos Gomes for more than 40 to 45 years without payment of any rent and the house was given to his father by Smt. Ana Severina Mascarenhas only on goodwill ground. It was also stated in the said applications that the original respondent started interfering with the possession of the petitioner from 26-3-1981 onwards. THE case of the original respondent is that in the year 1956 Smt. Ana Severina Mascarenhas was taken to Bombay and the keys of the suit house were kept with her neighbour Sabina Carrasco to look after and take care of the same. In the year 1957, the said Sabina without permission of the original respondent or her husband or Ana Severina Mascarenhas handed over the keys of the house to the father of original respondent by name Domingos Gomes who was at that time evicted from another house in Carrascowaddo to enable him to reside temporarily. THE original respondent came to Goa in the year 1962 and found that the house was occupied by the said Domingos and his family including the petitioner and upon making enquiries with Sabina Carrasco and Domingos, she was assured that the said Domingos would vacate the suit house. THE original respondent had claimed that since 1962 she was regularly coming from Bombay to Goa every year or every alternate year till 1970 and thereafter she has been coming every third or fourth year to Goa and used to occupy the suit house alongwith the petitioner for a few days.

(2.) AFTER recording evidence on behalf of both the parties, the learned Mamlatdar by Judgment and Order dated 1-5-1987 held that the petitioner was not a mundkar in respect of the suit house. This finding was in fact confirmed by the Addl. Collector by Judgment and Order dated 6-4-1990 in appeal. Against this Judgment, revision was filed before the Administrative tribunal and the Administrative Tribunal vide Judgment and Order dated 13-12-1991 in Mundkar Revision Application No.46/90 partly allowed the revision and set aside the Judgment dated 6-4-1990 of the Addl. Collector. The matter was remanded to the Addl. Collector with a direction to hear the appeal afresh and to dispose of the same in accordance with law in the light of observations made in the said Judgment. The Addl. Collector was required to give findings on the following issues framed by the Administrative Tribunal: - " (i)Whether the Applicant proves that he has been residing in the suit house for more than 30 years with the consent of Anna Severina. (ii)Whether his residence in the suit house was a fixed habitation and exclusive possession. (iii)Whether the Respondent proves that the father of the Applicant was inducted into the suit house by Sabina Carrasco without proper authorisation of the Bhatkar. (iv)Whether the Respondent proves that Sabina Carrasco allowed the Applicant's father to stay in the suit house for a temporary period ; (v)And if that be so, whether the Applicant is or not entitled to be declared as a Mundkar. " The Addl. Collector vide Judgment and Order dated 14-4-1994 set aside the Judgment and Order dated 1-5-1987 of the Mamlatdar and declared the petitioner to be mundkar of the suit house. On appreciation of evidence, the Addl. Collector had come to the conclusion that the petitioner's residence in the suit house was a fixed habitation and he was in exclusive possession of the suit house. These findings were challenged by the present respondents before the Administrative Tribunal in Mundkar Revision Application No.11/94. The learned Administrative Tribunal, on reapprisal of evidence, came to the conclusion that the Addl. Collector had not given any reason good enough to disturb the findings of the Mamlatdar and the Addl. Collector was wrong in declaring the present petitioner to be a mundkar. It was held by the Administrative tribunal that the very fact that the original respondent came and resided in the suit house whenever she came down to Goa would support her case that her house had remained in her legal possession and exclusive possession has certainly to be considered as one of attributes in residing in the dwelling house with fixed habitation. These findings are challenged in this Writ Petition.

(3.) LEARNED Advocate Shri Lotlikar, on the other hand, urged before me that the requirement in law is only in relation to fixed habitation and the rulings upon which reliance has been placed by learned advocate for the respondents are not attracted to the facts and circumstances of this case. He also pointed out that an order was passed on 22-4-1981 by the Enquiry Officer, City Survey, Mapusa after giving notice to the husband and mother-in-law of the original respondent. By this order, the title of late Jose Almeida to the suit property was confirmed and the possession of the present petitioner in relation to the suit house in question was confirmed. This order was produced in evidence and there was no challenge on behalf of the original respondent that the same was obtained without any notice to her or her ancestors.