advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, March 26, 2014

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


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.