Shri Avelino Ferrao and his wife and Smt. Laurencia Andrade vs Shri Venancio Antonio Ivo Tadeo Dias alias Ivo Dias and his wife and Smt. Platilda Dias

F.M. Reis, J

Heard Shri C. A. Coutinho, learned Counsel Senior Counsel appearing for the respondents. The above Second Appeal challenges the judgments passed by the Courts below whereby the suit filed by the respondents for a declaration and recovery of possession came to be decreed. Shri C. A. Coutino, learned Counsel appearing for the appellants has essentially raised the contentions that the appellants are the mundkars of the suit house and as such the judgments passed by the Courts below stand vitiated as the Courts below have no jurisdiction to decide such issue of mundkarship. The learned Counsel further pointed out that the appellants have been residing in the suit house since 1975 and according to him, the appellants were occupying the suit house with a fixed habitation and as such come within the meaning of a mundcar under the Mundkar Act. The learned Counsel further pointed out that as the Civil Courts have no jurisdiction to decide the issue of mundkarship, the judgments passed by the Courts below deserves to be quashed and set aside.

Shri C. A. Coutinho, learned counsel appearing for the appellants further pointed out that the appellants have already initiated the proceedings under the Mundkar Act by filing an application to establish their claim of mundkarship and the same is pending before the learned Mamlatdar.

On the other hand, Shri S. D. Lotlikar, learned Senior Counsel appearing for the respondents has supported the judgments passed by the Courts below. The learned Senior Counsel further pointed out that the alleged pleadings to claim that the appellants are the mundkars of the suit house are not found in the written statement filed by the appellants and as such the question of framing any such issue on this count would not arise at all. The learned Senior Counsel further pointed out that the Courts below have concurrently come to the conclusion that the appellants have no right to occupy the suit house and decreed the suit filed by the respondents. The learned Senior Counsel further pointed out that such concurrent findings cannot be interfered by this Court u/s 100 of CPC and consequently the appeal deserves to be dismissed. The learned Senior Counsel however does not dispute the fact that an application filed by the appellants is pending before the learned Mamlatdar. The learned Senior Counsel further pointed out that in any event such proceedings will have to proceed in accordance with law and under no circumstances can it come in the way of this Court in deciding the above Second Appeal.

Having heard the learned counsels and on perusal of the records, I find that the Courts below have rightly come to the conclusion on the basis of the pleadings of the parties that the respondents were entitled for the relief sought in the suit. On going through the written statement filed by the appellants, I find that no particulars are given therein which would force the Courts below to frame an issue as to whether the appellants are the mundkars or not. When such particulars are not found in the pleadings of the appellants, it is not open to the appellants now to contend that the issue of mundkarship ought to have been framed by the learned Trial Judge to be referred to the learned Mamlatdar for the adjudication. It is an admitted position that the issues were framed more than five years prior to the dismissal of the suit by the learned Trial Judge and no attempts were made by the appellants to pray for any issue to be framed on that count. There is no foundation laid down by the appellants in the pleadings in order that the Court could have framed such issue. As such, considering the concurrent findings arrived at by the Courts below, I find that there is no reason for any interference by this Court u/s 100 of Civil Procedure Code. The proceedings which are stated to be pending before the learned Mamlatdar would have to be decided in accordance with law. In view of the above, I find no reason to interfere in the impugned judgments. There is no substantial question of law arises in the present appeal for considering u/s 100 of Civil Procedure Code. Hence, the appeal stands dismissed.