PETER FERNANDES Vs. LUIZINHA PEREIRA

JUDGEMENT

(1.) THE substantial question of law which is sought to be raised in this second appeal is that can a Civil Court entertain the suit filed by a mundkar against another mundkar from the same property making grievance of extension of the house by the another to be an encroachment over the dwelling house of the former by the latter in contravention of the provisions of Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called as "the Mundkar Act") and grant the relief of injunction, either mandatory or permanent?

(2.) THE facts, in brief, relevant for the decision are that the appellant claiming to be a mundkar in respect of a house situated in a property bearing Survey No. 36/7 in the village of Sanvordem, filed a civil suit for mandatory injunction against the respondents for demolition of a structure stated to have been erected by the respondents at a distance of 2 metres from the house of the appellant and, therefore, complaining of violation of mundkarial rights of the appellants. According to the appellant, he being the mundkar is entitled for five metres of land around the outer wall of the house in terms of the definition of the term "dwelling house" under the Mundkar Act and the construction having been done at the distance of 2 metres, it encroaches upon the dwelling house of the appellant. There is no dispute between the mundkar and the bhatkar and it is the dispute between the two mundkars. The appellant prayed for permanent injunction to restrain the respondent from carrying on or extending the suit structure in any manner as well as from running distillary in the suit structure and diverting the waste water of the distillary towards the house of the appellants. The trial Court, vide its judgment and decree dated 17-9-88 partly decreed the suit and ordered the respondents by way of mandatory injunction to demolish the suit structure to the extent of 1 metre from the outer wall of the appellants house and further restrained the respondents by way of permanent injunction from diverting the waste water of the distillary towards the appellants house and further restrained the respondents from extending the suit structure towards the appellants house.

(3.) BEING aggrieved by the partial decree granted in favour of the appellants, the appellants preferred appeal being Regular Civil Appeal No. 57/88 which was heard and disposed of by the Addl. District Judge, South Goa, at Margao by impugned judgment and decree dated 11-7-1994. By impugned judgment and decree, the appeal was dismissed and the order of the trial Court was confirmed. However, while dismissing the appeal, the lower Appellate Court held that the Civil Court has no jurisdiction to determine the extent of the area to which the appellant is entitled to under the Mundkar Act.