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Execution court powers – Trial court dismissed the execution petition on the ground that the civil court has no jurisdiction to pass a decree for declaration and eviction which became final as it was covered under Mundkar Act. – High court held that the plaintiff claimed rights as owner of the property but not Mundkar – civil court can only give declaration and eviction and held that civil court has got jurisdiction and set aside the trial court order – Apex court confirmed the order of High court and dismissed the appeal = Jacinta De Silva … Appellant vs. Rosarinho Costa & Ors. … Respondents= 2014 (March. Part ) judis.nic.in/supremecourt/filename=41336

 Execution court powers  – Trial court dismissed the execution petition on the ground that the civil court has no jurisdiction to pass a decree for declaration and eviction which became final as it was covered under Mundkar Act. – High court held that the plaintiff claimed rights as owner of the property but not Mundkar – civil court can only give declaration and eviction and held that civil court has got jurisdiction and set aside the trial court order – Apex court confirmed the order of High court and dismissed the appeal =

  On  31st  August,  2000,  the  suit  was  decreed  in  favour  of  the

plaintiffs (respondent Nos.1 and 2) declaring that the  plaintiffs  are  the

owners of the suit house which is occupied by  defendant  No.2  and  further

defendant No.2 was ordered to be evicted from the suit house.  Incidentally,

it is to be noted that defendant No.2 did not  file  any  written  statement

before the trial court. No appeal was preferred from the said decree by  any

of  the  defendants  and  the  decree  attained   its   finality.   In   the

circumstances, an execution application was instituted seeking  eviction  of

defendant No.2 from the suit house. The heirs of defendant  No.1  comprising

the appellant also, objected to the said  proceedings  contending  that  the

suit was misconceived and the  decree  passed  by  the  Civil  Court  was  a

nullity. The  executing  court  after  considering  such  objection  of  the

judgment-debtor  on  11th  February,  2003  rejected  the   said   execution

application.=  

The Executing Court held that the decree passed  by  the  Civil

Court was  without  any  jurisdiction  and  thereby  it  is  a  nullity  and

accordingly dismissed the said execution proceedings.=

wherein the High Court was  pleased  to  set  aside

the order passed by the Executing Court  in  connection  with  an  execution

application. =

 

 

 

2014 (March. Part ) judis.nic.in/supremecourt/filename=41336

GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE

Reportable
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4002 2014
(Arising out of Special Leave Petition (Civil) No. 15664 of 2010)
Jacinta De Silva …
Appellant

vs.

Rosarinho Costa & Ors. …
Respondents

 

J U D G M E N T

 

 

Pinaki Chandra Ghose, J.
1. Leave granted.
2. This appeal has been filed by the appellant challenging the order
passed by the High Court wherein the High Court was pleased to set aside
the order passed by the Executing Court in connection with an execution
application. The Executing Court held that the decree passed by the Civil
Court was without any jurisdiction and thereby it is a nullity and
accordingly dismissed the said execution proceedings.
3. The facts revealed in this case are that respondent Nos.1 and 2 are the
owners of the property known as “Madel” situated at Curtorim, Salcete,
Goa, which was allotted to them by a Deed of Partition registered before
the Notary Public. In the property exists a residential house and a
mundkarial house (suit house bearing No. 1124). The said mundkarial house
was in occupation of one Jose Francisco D’Silva (hereinafter referred to
as ‘Jose’) prior to 1977 as a Mundkar of respondent Nos.1 and 2 and after
the death of said Jose in October, 1977, the original defendant No.1 –
Mrs. Filomena – who is the wife of said Jose, succeeded him. It appears
that in the year 1980, respondent Nos.1 and 2 found that respondent No.7
(Shri Naik, being original defendant No.2) was residing illegally and
without authority in the suit house. Respondent Nos.1 and 2 further
learnt that the original defendant No.1 (Mrs. Filomena) had started
residing with her daughter at Verna. Respondent Nos.1 and 2, therefore,
by a letter dated 12th August, 1980, called upon original defendant No.2
(Shri Naik) therein to vacate the said house and hand over possession to
the respondent Nos. 1 and 2.
4. On failure of original defendant No.2 to hand over possession,
respondent Nos.1 and 2, on 30th September, 1980 filed an application
bearing No.27/80 for eviction of the Mundkar in the Court of the Mamlatdar,
Margao, Salcete, on the ground that Mrs. Filomena Rodrigues, i.e., original
defendant No.1, has ceased to occupy the mundkarial house for more than one
year. The respondent Nos. 1 and 2 received a notice from the Advocate of
the original defendant No.1 dated 25th October, 1980, calling upon them not
to interfere with the property of defendant No.1, claiming that she is the
owner of the mundkarial house. In the said proceedings before the Mamlatdar
initiated by respondent Nos. 1 and 2 for eviction of the Mundkar, defendant
No.1 challenged the jurisdiction of the Mamlatdar to try the matter on the
ground that her husband was the owner of the house. It appears that the
said proceedings before the Mamlatdar were dismissed for default and, thus,
the rights of the parties remained to be adjudicated.
5. On 19th March, 1981 the plaintiffs, being respondent Nos.1 and 2
herein, filed a suit in the Court of Civil Judge, Junior Division, Salcete,
being Regular Civil Suit No.127/81/F against defendant No.1 (Mrs. Filomena)
and defendant No.2 (Shri Naik), inter alia, for the following reliefs :
(i) Declaration that plaintiffs are owners of the suit house
presently occupied by defendant No.2; and
(ii) Eviction of defendant No.2 and possession of the suit house.

 

 

6. It is admitted by respondent Nos.1 and 2 in the plaint that the
property comprised of a mundkarial house which existed in the North-Eastern
corner of the plaintiffs’/respondents’ property. It is further stated that
one Anna Mariana was the Mundkar of the plaintiffs and had been residing in
the dwelling house on being permitted by the plaintiffs’ ancestors. Said
Anna Mariana was a Mundkar of the plaintiffs prior to Jose. Admittedly,
defendant No.1 (Mrs. Filomena) denied the plaintiffs’ ownership of the said
suit house and claimed that she is the owner of the same in the Mundkar’s
case which was pending before the Mamlatdar of Salcete. The said suit was
contested by defendant No.1 by filing written statement and it is further
to be noted that defendant No.1 claimed title by prescription as well as by
way of adverse possession. In these circumstances, the trial court framed
the following issues:
(a) whether the plaintiffs are the owners in possession of the
property known as “Madel” and also an old mundkarial house in North-
East corner of the plaintiff’s property and that the same house was
occupied by one Jose Francis D’Silva as Mundkar of the plaintiffs?
(b) whether the widow of the said Jose Francisco D’Silva had been
residing with her married daughter at Verna and neither the defendant
nor their children occupied the mundkarial house?

 

 

7. On 31st August, 2000, the suit was decreed in favour of the
plaintiffs (respondent Nos.1 and 2) declaring that the plaintiffs are the
owners of the suit house which is occupied by defendant No.2 and further
defendant No.2 was ordered to be evicted from the suit house. Incidentally,
it is to be noted that defendant No.2 did not file any written statement
before the trial court. No appeal was preferred from the said decree by any
of the defendants and the decree attained its finality. In the
circumstances, an execution application was instituted seeking eviction of
defendant No.2 from the suit house. The heirs of defendant No.1 comprising
the appellant also, objected to the said proceedings contending that the
suit was misconceived and the decree passed by the Civil Court was a
nullity. The executing court after considering such objection of the
judgment-debtor on 11th February, 2003 rejected the said execution
application.
8. Being aggrieved by the said order passed by the executing court,
respondent Nos.1 and 2 filed a petition before the High Court. After
considering the facts and the submissions made on behalf of the parties,
the High Court held that the objections which were filed before the
executing court by the judgment-debtor, was nothing but an attempt to stall
and defeat the execution proceedings and further held that the said
mundkarial house in the North-Eastern corner of the property was occupied
by defendant No.2 without the consent and/or permission of the plaintiffs
(respondent Nos. 1 and 2). The said house has been abandoned since the
occupation of defendant No.2 was illegal and unauthorised. Defendant No.1
tried to rely upon the entries made in the Matriz Records and further
contended that the said entry in the record had no bearing with regard to
the ownership rights of the defendants, on the contrary, the plaintiffs
relied upon the Certificate of Land Registration. Arguments were also put
forwarded on behalf of said defendant No.1/judgment-debtor that since the
suit was not maintainable as the case filed before the Mamlatdar by the
plaintiffs/respondent Nos.1 and 2 was dismissed, therefore, the suit was
barred by res judicata. The High Court duly took note of the fact that no
plea with regard to the jurisdiction of the Civil Court was taken by
defendant No.1 in the written statement. On the contrary, it was the
specific case of defendant No.1 that the said house was not a mundkarial
house and was not the plaintiffs’ property. It was further submitted that
Jose was never a mundkar of the plaintiffs and he was the owner of the said
house. The High Court duly noticed that the trial court while deciding the
issues framed, duly considered the facts which were incidental thereto. In
this factual matrix, the High Court held that the issues tried by the trial
court cannot be said to be within the jurisdiction of the authorities under
the Mundkar Act. The High Court further held that the lis as can be seen,
was with regard to the ownership of the suit house since defendant No.1
could not pursue her claim for ownership of any mundkarial rights. In these
circumstances, the High Court correctly held that the trial court had
jurisdiction to entertain the suit. We have noticed that there is no
question of application of the principle of res judicata in the given
facts.
9. In view of the factual matrix, it is absolutely clear that the trial
court passed the said decree rightly and it cannot be said to be lacking
inherent jurisdiction to do so and we hold that the trial court had
jurisdiction to entertain the suit. Therefore, the executing court was
totally wrong in holding that the civil court lacked inherent jurisdiction.

 

10. Accordingly, we hold that the reasons given by the High Court in the
matter cannot be interfered with in the given facts. We affirm the
reasoning given by the High Court. We find no merits in this appeal.
Accordingly, we dismiss this appeal.

…………………………….J.
(Gyan Sudha Misra)

 

………………………………J
(Pinaki Chandra Ghose)
New Delhi;
March 25, 2014.

 
———————–
8

 

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