KAMAL PARWAR Vs. TIMOTIO FERNANDES

JUDGEMENT

(1.) Rule, returnable forthwith. Heard by consent of the parties.

(2.) The present petition challenges the order passed by the learned District Judge-II, Panaji in Miscellaneous Civil Appeal No. 138/ 2008 whereby the appeal preferred by the respondent No. 1, was allowed. The learned District Judge has passed impugned order essentially on the ground that the rights of the petitioner, have not yet been crystallized before the authorities under the Mundkar Act, where the applications for declaration of their rights of mundkarship are pending. The learned Judge came to the conclusion that the petitioner was not entitled for any relief of injunction against the respondents unless and until the area of the dwelling house as claimed by the petitioners, has not been demarcated under the provisions of the Mundkar Act. The learned District Judge has further held that in any event, no prejudice would cause to the petitioner as the distance from the proposed new construction carried out by the respondent No. 1, is at a distance of 8.5 metres from the outer wall of the house occupied by the petitioner. On these grounds, the appeal came to be allowed and the application filed by the petitioner for temporary injunction was dismissed. The learned Counsel for the petitioner, urged before me that the learned District Judge had erred in passing the impugned order as according to him, there was no necessity for the rights to be crystallized under the Mundkar Act as the relief sought by the petitioner was not to dispossess him otherwise than by due process of law as far as the disputed area is concerned.

(3.) The learned Counsel for the respondent No. 1 on the other hand, contended that there is no infirmity of any kind committed by the learned District Judge while passing the impugned order.