BABURAO VISHNU NAIK Vs. RAMCHANDRA VISHNU NAIK

JUDGEMENT

(1.) THIS revision application directed against the order dated 22nd June, 1988, passed by the learned Civil Judge, Junior division, Panjim, upholding the objections filed under Section 47, Civil procedure Code, by the judgment-debtors/respondents herein, in the proceedings for execution of decree dated 30th April, 1985, gives inter alia, rise to an interesting question of law, viz. , whether the expression "dwelling house" as defined in Section 2 (i) of the Goa, Daman -and Diu Mundkars (Protection from Eviction) Act, 1975, for short, "the Act", connotes a separate and independent structure or building, or whether it also brings within its fold a part or a portion o fa building where a person who alleges to be a mundkar resides with fixed habitation.

(2.) MR. M. S Usgaokar, the learned counsel appearing for the petitioner, has indeed submitted on the strength of the decision of the Supreme court in 'vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, air 1970 SC 1475, that although undoubtedly the Executing Court is entitled to go behind the decree in case the nullity of such decree is writ large and is apparent on the face of record, the fact remains that in this particular case, such alleged nullity is not apparent. He urged that the petitioner had averred in the suit that he is the owner in possession of a dwelling house bearing the No. 22/a, standing in a property known as "zorichem TOLEM" at Batulem, Panjim ; that on 10th June, 1970, he permitted the first respondent to take shelter in a part of the said house consisting of two rooms, as he had requested the plaintiff t give him temporary shelter, undertaking to vacate it within six months ; that in spite of his repeated requests to vacate the said portion of the house, the respondents had neglected and failed to do so and had started to create a nuisance everyday ; and that this had given cause for the serving of a notice by the petitioner on the first respondent to vacate the said house. Now, the stand taken by the respondents in their written statement was that the house in question was belonging to them, they having never raised the question of mundkarship. The trial Court negatived this stand and as such, the suit was ultimately decreed. It was only at the stage of the execution proceedings that the respondents filed their objections under Section 47, Civil Procedure Code, claiming for the first time that the facts as disclosed in the pleadings unmistakably establi sh that the respondents are the mundkars of the suit property and that the portion of the house occupied by them is their dwelling house. Therefore, the respondents came out with a case that the decree sought to be executed is a nullity as passed by a Court lacking inherent jurisdiction. But, the learned counsel contended, what is alleged in the plaint is that the respondents had been allowed to occupy, and are occupying, only two rooms in the suit house. A part of a house does not come within the meaning of "dwelling house" given in Section 2 (i) of the Act and therefore, naturally, the respondents cannot be held by any stretch of imagination to be mundkars as defined in Section 2 (p) of the same Act. Reliance was placed in support of the above submission on the decision of the kerala High Court in 'muhammad v. Imbichibi,' AIR 1975 Ker 32.

(3.) A few facts are necessary to be stated in order to enable the Court to appreciate the above submissions of Mr. Usgaokar. The suit was filed by the petitioner herein on 8th July, 1977, for recovery of possession of a part of the house identified in the plaint. He alleged that he is the owner in possession of a dwelling house bearing the No. 22/a which stands in the property "zorichem TOLEM" situate at Batulem, Panaji; that on or about the 10th June, 1970, the first respondent was given temporary shelter in a part of the said house consisting of two rooms as the same respondent had requested the petitioner to give him temporary shelter since he had no place to stay at that time, having however, undertaken that he would vacate the premises within six months ; that in spite of the repeated requests of the petitioner to the first respondent to vacate the said portion of the house occupied by him, the respondents had neglected and failed to do so and instead, the first respondent had started to create nuisance everyday under the influence of liquor ; and that the petitioner has therefore, served an advocate's notice dated 15th. , April, 1977, on the first respondent calling upon him to vacate the portion of the house in his occupation within one month from the receipt thereof. The respondents resisted this suit on the grounds that the petitioner is not the owner in possession of the suit house. They denied that they had been given temporary shelter in two rooms of the house and that they had undertaken to vacate in within six months. They alleged that somewhere in the year 1970, the petitioner informed the first respondent and his cousin Dattaram Shivram Naik that he was negotiating the purchase of a plot of land situate at Batulem which was part of the property "zorichem TOLEM". He proposed the sale of the said half of the plot of land to the aforesaid Dattaram and the first respondent in equal parts. This proposal was accepted and half of the said plot was acquired for the petitioner and the remaining half, in equal parts, for Dattaram and the first respondent. The petitioner started building his house in the plot which v as given to him. The first respondent being short of money, put up only a temporary small house in his plot. Sometime later, the petitioner allegation to be in financial difficulties, requested the first respondent to be allowed to stay in the said house.