AI Structured Summary
Not yet generated for this judgment
Judgment
F.M.Reis, J.—Heard Shri Rohit Bras De Sa, learned Counsel appearing for the Appellants and Shri S. D. Lotlikar, learned Senior Counsel appearing for the SA-25-10 respondent. The above Second Appeal challenges the Judgments passed by the Courts below whereby the suit filed by the Respondent for mandatory injunction/demolition of the encroached construction by the Appellants within the set back area came to be decreed.
Briefly, the facts of the case are that the Respondent, who is the Plaintiff in the suit, claimed to be the owner in possession of the property bearing survey no. 20/38 and situated in the Village of Ponda and that the plot of the Respondent is bounded towards the east and west by the property bearing survey no. 20/1 of Ponda Taluka, towards the north partly by the property bearing survey no. 20/1, small gutter and property of Almeida School and on the south by public road and plot of one Pandit. It is further their case that in their property, the Respondent has a residential house, a garage and two store rooms in his plot and that towards the northern side corner of the property of the Respondent, there is a small house of the Appellants at the distance of about four metres from the boundary of the plot of the Respondent. It is further their case that the Appellants have filed an application for registration as a Mundkar in respect of the dwelling house occupied by them before the learned Mamlatdar of Ponda against the Respondent and one Gurudatta Talaulikar u/s 6(3) and Section 7 of the Mundkar Act and, such proceedings are still pending. It is further their case that when the Respondent visited his house in the said property in November, 1994, he noticed that the Appellants have stored construction material near their house and already dug trenches. It is further his case that the said activities of the new construction are being done hurriedly. It is further his contention that he made inquiries about the said construction and that he came to know that no licence was issued to the Appellants to carry out the said work. It is further his case that the Appellants are doing illegal construction so as to claim more area of the Respondent and to show that the construction was old and that such construction was being done towards the house of the Respondent and was partly completed. The Respondent also expressed apprehension about keeping windows and doors towards the house of the Respondent. It is further his case that the pucca house has been converted and it is partly outside his plot. The Respondent also contend that excavation work was going on near the hut and, as such, a complaint was lodged to the Ponda Municipal Council and, as such, the Respondent filed the suit for a relief of permanent injunction and mandatory injunction.
The Appellants resisted the suit filed by the Respondent and contended that the Respondent is not the owner in possession of the landed property bearing survey no. 20/38 and that the Respondent has illegally constructed the house, septic tank, garage and two store rooms for which the Respondent has objected before various authorities. It is further their case that the Respondent has constructed a septic tank at a distance of just half a metre from their dwelling house and over the said illegal construction, a room. The Appellants have also denied that they have carried out any illegal construction. It is further their claim, that the existing house of the Appellant was of laterite stones and the dimensions of the house is as mentioned in Special Civil Suit no. 45/1992/A, which was decreed. The Appellants have also filed a counter claim and claimed that they are residing in the property since the year 1967 and that the house of the Appellants was set on fire by some miscreants and the same was reconstructed, having an area of 120 square metres and situated at a distance of ten metres from the Ponda Municipal road. The Appellants have also contended that they have objected to the Survey Authorities to survey the plot and separate the said area. But, despite of the objections, the Survey Authorities carried out the demarcation and separated the plot of the Respondent. They accordingly sought a declaration that the Sale Deed dated 29.01.1980 surveyed under the Record of Rights be declared null and void and declare to be cancelled.
The written statement came to be filed by the Respondent despite the contention of the Appellants and also raised the point of limitation to introduce to the relief in the counter claim. They have also denied that any illegal construction has been done by the Respondent and claimed that they had obtained a permission from the Ponda Municipal Council to put up the construction. Thereafter, the Respondent filed an application for amendment at para 11(a) giving facts of encroachment after filing of the suit to which additional written statements came to be filed by the Appellants.
The learned Civil Judge, Senior Division, at Ponda, after framing the issues and recording of evidence, has come to the conclusion that the Appellants have stored the construction material and started construction of a new house at a distance of about 1 to 2 feet from the boundary of the Respondent''s property without the licence from the Municipality. The learned Judge has further held that the Appellant has failed to prove that the Sale Deed dated 29.01.1980 is null and void. Whilst assessing the evidence on record, the learned Judge has taken note of the Sale Deed by which the Respondent purchased the plot which is at exhibit Pw.1/A as well as the Agreement dated 31.12.1980. Learned Judge also took note of the fact about the document at exhibit Pw.1/B whereby the area sold to the Respondent was clarified and a signed plan was produced identifying the plot sold. The learned Judge has also considered the evidence of Dw.1, the Appellants herein, and taken note of the Judgment and Decree produced by him in Special Civil Suit no. 45/1992 filed by the Appellant no.1 against Talaulikar, which is at exhibit Dw.1/B, the house tax receipts and form I and XIV in respect of property surveyed under no. 20/1. The learned Judge has appreciated the evidence of Dw.1 and has come to the conclusion that the Judgment and Decree passed in Special Civil Suit no. 45/1992 was obtained by the Appellants by intentionally giving false address of the landlord so as to obtain an exparte Decree and ultimately succeed. The learned Judge has further noted that the Appellants have their house at a distance of four metre from the compound wall of the Respondent and further found that the Survey Records do not help the Appellants in any manner in support of their contention. The learned Judge has also taken note of the fact that the new house was not constructed at the said space where the hut was existing in view of the admission of Dw. 1. The learned Judge also took note of the fact that the Appellants have admitted that they have not purchased the area of 100 metres which is claimed to have been given to them by the landlord. The learned Judge further found that unless the Appellants have purchased the mundkarial area of the dwelling house, they have no right to the said area in view of the law laid down by this Court. The learned Judge also considered the other evidence adduced by the Appellants and found that Dw.2 had not supported the case of the Appellants at all. The learned Judge has also considered the evidence of Dw.3 and Dw.4 and found that Dw.4 has never visited the site and has prepared the plan and deposed based on the information given by the Appellants. The learned Judge has also taken note of the Judgment of this Court reported in 1998 (1) G.L.T. 212 in the case of Rachel D'' Souza vs. Inacinha Carvalho, wherein it has been held that the right to purchase area around the house does not create any right in favour of the mundkar to cause extension or encroachment or construction in the said area, unless and until certificate of transfer of ownership is issued in his favour. The learned Judge has also taken note of the Judgment reported in 1998 (2) G.L.T. 223 in the case of Chief Officer vs. Vaman Shirgaonkar, wherein it has been held that without purchasing the dwelling house, plaintiff cannot assert mundkarial rights to obtain injunction. The learned Judge as such decided issue no. 1 in favour of the Respondent herein. The learned Judge also found that the construction put up by the Respondent is legal and authorised and that the Appellants have no right to extend their house illegally so as to violate the regulations. The learned Judge also took note of the fact that the claim for declaration is not tenable as sought by the Appellants in the counter claim. In any event the learned Judge noted the fact that the parties to the Sale Deed namely the owners of the property were not parties to the suit. Consequently, the learned Judge restrained the Appellants by way of permanent injunction from doing any illegal construction and/or increasing the plinth area of the mundkarial house and/or doing any construction within three metres from the boundary limit of the property of the Respondent bearing survey no. 20/38 and/or from carrying out further construction in the suit property. The learned Judge has also directed by a mandatory injunction to demolish the illegal construction already carried out beyond the plinth area of the Appellants'' house or any constriction within three metres from the boundary wall.
Being aggrieved by the said Judgment, the Appellants preferred an Appeal before the Lower Appellate Court bearing Regular Civil Appeal no. 102/2008. The learned Lower Appellate Court after appreciating the evidence on record has come to the conclusion, inter alia, that the hut of the Appellants is not shown in the Survey Plan and that the Appellants are claiming to be Mundkars. The learned Judge has come to the conclusion that the construction put up by the Appellants is at a distance of 1 to 2 feet from the boundary wall of the Respondent. The learned Judge further found that the Appellants have failed to bring in enough material to show that the construction put up by the Respondent was illegal in support of their counter claim and has relied upon the construction licence at exhibit Pw.1/H collectively issued by the Ponda Municipal Council. The learned Judge further found that the claim of the Appellants to declare the Sale Deed of the Respondent null and void, cannot be accepted. The learned Judge further found that the Mundkar has no peremptory right in respect to the land of the Bhatkar. The learned Judge after appreciating the evidence on record, dismissed the Appeal preferred by Appellants.
Being aggrieved by the said Judgment, the Appellants have preferred the present Second Appeal.
Shri Rohit Bras De Sa, learned Counsel appearing for the Appellants has pointed that the learned Judge was not justified to pass the impugned order as, according to him, the Appellants are the mundkars residing in the dwelling house existing in the suit property and, as such, the learned Judge has no jurisdiction to direct the demolition of the said area. The learned Counsel further pointed out that the Appellants have already preferred an application for declaration of their rights as mundkars against the bhatkar as well as the Appellants herein and the proceedings are pending before the learned Mamlatdar and, as such, unless and until the area of the dwelling house is adjudicated in the said proceedings, the question of directing any demolition of the area of such house, does not arise. Learned Counsel further pointed out that the Sale Deed relied upon by the Respondent to claim his right over the suit property bearing survey no. 20/38 is vitiated as, according to him, as the original Sale Deed lacks particulars which came to be rectified by corrigendum which has not been registered, such Sale Deed is null and void. The learned Counsel further pointed out that based on the said Sale Deed the Respondent was not entitled to file the suit and obtained relief of injunction and mandatory injunction granted by the Courts below. Learned Counsel appearing for the Appellants has taken me through the impugned Judgments passed by the Courts below as well as the material adduced by the parties and pointed out that the Appellants are the mundkars of the suit property residing in the dwelling house existing therein and that the Courts below have erroneously passed the Decree directing the demolition of the dwelling house of the Appellants when Civil Court has no jurisdiction to pass such Orders. Learned Counsel, as such, pointed out that there are substantial questions of law which require consideration by this Court in the present Appeal which call for interference by this court u/s 100 of the Civil Procedure Code.
On the other hand, Shri S. D. Lotlikar, learned Senior Counsel appearing for the Respondent has disputed the contentions advanced by the learned Counsel Shri Rohit Bras De Sa appearing for the Appellants. Learned Senior Counsel further pointed out that the property belonging to the Respondent is a distinct property having a separate survey number being Survey No. 20/38 of Ponda Village and, as such, the question of the Appellants claiming that the title of the Respondent is vitiated does not arise. Learned Senior Counsel further pointed out that in any event the Appellants had no locus standi to dispute the correctness of the Sale Deed property as, admittedly, the vendors therein have not disputed the claim of the Respondent to the said portion of the suit property. Learned Senior Counsel further pointed out that in the present case, admittedly, the Appellants have not been declared as Mundkars and unless and until purchase certificate is issued in favour of the Appellants, the question of claiming any right to the dwelling house does not arise. Learned Senior Counsel further pointed out that the Appellants have encroached into the set back area in order to put up a fictitious claim before the learned Mamlatdar in respect of the disputed area claimed by the Appellants. Learned Senior Counsel further pointed out that the property purchased by the Respondent does not come within the mundkarial area of the Appellants. Learned Senior Counsel further pointed out that the material on record discloses that the original dwelling house of the Appellants was admeasuring an area of 20 square metres and the encroachment carried out by the Appellants is nearly 100 square metres and, as such, the Respondent is entitled to seek demolition of such encroached area. Learned Senior Counsel further pointed out that the Appellants have themselves admitted that the original plinth area was only 20 square metres and, as such, this itself discloses that the encroachment carried out by the Appellants which is in dispute in the present proceedings from the year 1994 was not permissible in law. Learned Senior Counsel, as such, submits that there are no substantial questions of law which arise in the above appeal which calls for interference by this Court u/s 100 of the Civil Procedure Code.
I have duly considered the rival contentions of the learned Counsel appearing for the respective parties and perused the records and the impugned Judgments passed by the Courts below. On going through the records of the proceedings, I find that the Courts below on the basis of the appreciation of evidence on record and taking note of the Survey Records and other material adduced by the parties, have concurrently come to the conclusion that the Appellants have encroached into the set back area and, as such, the Respondent is entitled for reliefs for demolition of such encroached area. The Courts below have also concurrently found that the house constructed by the Respondent is pursuant to sanctions obtained from the statutory authorities and that the Appellants have extended their original dwelling house to a distance of about 1 to 2 feet from the boundary of the property of the Respondent. It is well settled in view of the Judgment of this Court referred to by the learned Trial Judge that unless and until a purchase certificate is obtained from the learned Mamlatdar, a Mundkar is not entitled to claim any right to put up a construction in such mundkarial area. The Courts below have concurrently found that the Decree relied upon by the Appellants to establish their area of the dwelling house has been obtained by deliberately submitting wrong addresses of the original owners. The Courts below as such have come to the conclusion that the Appellants have encroached beyond the original plinth area and have directed the demolition of such extended area constructed by the Appellants. These concurrent findings of fact cannot be re-appreciated by this Court in exercise of its jurisdiction u/s 100 of the Civil Procedure Code. Admittedly, in the present case, the Appellants have not yet produced any declaration of their right as Mundkar nor any material from the concerned authorities to show that their mundkarial area has been demarcated. Hence, the Appellants are not entitled to extend the existing plinth area to the detriment of the right of the Respondent.
With regard to the contention of Shri Rohit Bras De Sa, learned Counsel appearing for the Appellants, to the effect that the Sale Deed executed in favour of the Respondent is null and void, I find that the Appellants have no locus standi to dispute the same. Admittedly, the owners of the property have not disputed the correctness of the Sale Deed nor the owners are parties to the counter claim filed by the Appellants. The Courts below have rightly taken not of the fact that the vendors of the said Sale Deed are not parties to the suit and, as such, the claim cannot be adjudicated without their presence. Apart from that, the contention of Shri Rohit Bras De Sa, learned Counsel appearing for the Appellants, that the corrigendum cannot be considered as it is not duly registered, I find that the corrigendum relied upon by the Respondent is only for the purpose of locating the property which has already been conveyed in favour of the Respondent pursuant to the registered Sale Deed. Such clarification which does not in any way extend or diminish the area which has been sold pursuant to the Sale Deed, cannot be said to be illegal as sought to be contended by the learned Counsel appearing for the Appellants. Hence, the contention of Shri Rohit Bras De Sa, learned Counsel appearing for the Appellants, to the effect that the Sale Deed is null and void deserves to be rejected.
In the present case, considering that the plinth area was only 20 square metres, any extension of the said plinth area is illegal. The Respondent who has purchased the portion of the said property are entitled to seek demolition of the area encroached which would effect the proprietary rights of the Respondent. Hence, considering the facts and circumstances of the case, the Courts below have rightly appreciated the evidence on record and I find no perversity in the findings of the Courts below. There are no substantial question of law which arise in the present Appeal which require consideration of this Court u/s 100 of the Civil Procedure Code.
With regard to the contention of Shri Rohit Bras De Sa, learned Counsel appearing for the Appellants that they have filed an application for declaration as a Mundkar and the same is pending before the learned Mamlatdar, I find that merely because such application is pending, does not by itself disentitle the Court from proceeding with the suit. Nevertheless, in case the Appellants are declared as Mundkars of the dwelling house, which include the disputed suit house in the present case, the consequences in law will follow. However, considering that up to now no such declaration or purchase Sanad has been obtained by the Appellants, there is no question of claiming any right to extend the existing dwelling house on the plea that the said area comes within the definition of the dwelling house under the Mundkar Act. I find no substantial question of law arises in the present Appeal as both the Courts below have concurrently come to the conclusion that the construction have been put up by the Appellants is beyond the existing plinth area. Hence, the Appeal stands dismissed.