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Judgment
Rule. Rule made returnable forthwith. With consent of parties, matter is heard finally at admission stage.
The petitioners impugns order dated 07.08.2025 passed by Administrative Tribunal in Mundkar Revision Application No.13/2016, thereby upholding judgment and order dated 08.03.2016 passed by Deputy Collector in Case No.DC/MUND/APL/46/2002, thereby setting aside judgment and order dated 15.07.2002 passed by Mamlatdar while deciding Reference of issue made by Civil Court in Regular Civil Suit No.116/1992/B declining respondents' claim as Mundkar over suit property.
The petitioner instituted Regular Civil Suit No.116/1992/B against respondent seeking decree of perpetual and mandatory injunction in respect of suit property i.e. structure situated in garden property bearing Survey No.25 at village Assagao. It is contention of petitioner that he is owner and possessor of suit property. There are in all five structures shown in Survey plan under sub-division 1 to 5. The sub-division 6 relates to structure mentioned as Zopdi (Hut), which is made of Palm leaves and it was occupied by Smt. Kesari Gunaji Sirsaikar. She had left Hut somewhere in year 1974. Later on, she expired. The respondent who is son of late Kesari never resided in Hut after 1972-1973. He has constructed house at Dabholwado, Chapora in or about 1974. Prior to that, he was residing at Porvorim in 'Hill Top Apartment'. When petitioner decided to sell land somewhere in month of May 1992, respondent erected unauthorized Palm leaves structure at the same place where his mother had her Hut.
The respondent filed written statement contending that he is residing in suit Hut as 'Mundkar' and previously his mother late Kesari was residing in same Hut. She died in same Hut in year 1984. In light of aforesaid pleadings, Civil Court framed issue which reads thus:
'Does defendant prove he is Mundkar of plaintiff with respect to suit hut under sub-division 6 of survey no.25 at Assagao.'
and made Reference under Section 32 of Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereafter referred to as 'Act of 1975') to Mamlatdar, Mapusa Bardez-Goa.
On 15.07.2002, Mamlatar Court decided issue and rejected Mundkar claim of respondent. The matter came upto this Court in Writ Petition No.694/2010. This Court while setting aside orders passed by Tribunal as well as Deputy Collector, remitted matter back to Deputy Collector for decision afresh in Appeal after hearing parties in accordance with law. In second round on 16.09.2014, Deputy Collector set aside Mamlatdar's order dated 15.07.2002 and remitted matter back for fresh decision. The petitioner raised challenge to remand order passed by Deputy Collector before Tribunal, who again remitted back matter to Deputy Collector to decide Appeal as per direction given by this Court. Accordingly, on 08.03.2016 Deputy Collector allowed respondent's Appeal by setting aside Mamlatdar's order dated 15.07.2002, thereby upholding Mundkar claim. The petitioner filed Mundkar Revision Application before Administrative Tribunal, which came to be dismissed vide impugned order dated 07.08.2025. Hence, this Writ Petition.
Mr. C. A. Cotinho, learned Senior Advocate appearing for petitioner would submit that petitioner's mother late Kesari had filed an application for Mundkarship in year 1978, which came to be dismissed on 17.07.1987 as abandoned. Eventually, there is no declaration of Mundkarship in favour of respondent's mother. The respondent raised claim of Mundkarship in his written statement filed in RCS No.116/1992/B. Eventually, issue was framed as to 'whether respondent proves his Mundkarship' and same was referred to Mamlatdar. The petitioner could not bring on record any evidence suggesting his residence on appointed date with fixed habitation in dwelling house, which was existing at suit property. There is voluminous evidence indicating that respondent was residing elsewhere. The Mamlatdar had rightly appreciated evidence on record and negatived petitioner's claim of Mundkarship. Even otherwise, there is no evidence to show that respondent's mother late Kesari was in fixed habitation over suit property. The Electoral rolls prior and after appointed date shows her residence in neighboring village i.e. Anjuna and not Assagao. The Tribunal erroneously relied upon death certificate of Smt. Kesari as proof of her residence. The respondent has created such evidence by registering her death after institution of proceeding. Until year 2000, Deputy Collector as well as BDO had rejected respondent's application for water and electricity connection, which suggests that respondent or his mother never resided or occupied suit house.
Per contra, Mr. V. A. Lawande, learned Advocate appearing for respondent supports impugned order. He would submit that petitioner's claim of Mundkarship has to be appreciated having regard to specific pleading in written statement, whereby respondent has specifically asserted that his mother resided at suit house till her death. She was in occupation of suit house since before appointed date. The respondent being son of late Kesari inherits right of Mundkar, which is heritable in light of Section 3 of Act of 1975. The Deputy Collector as well as Administrative Tribunal rightly appreciated evidence on record, particularly keeping in mind observations made by this Court in remand order and recorded concurrent finding of facts affirming respondent's claim of Mundkarship. Relying upon observations of Supreme Court in case of Jai Singh and Ors. Vs. Municipal Corporation of Delhi1, he submits that jurisdiction of this Court under Article 227 of Constitution of India cannot be exercised to correct all errors of Tribunal who acted within limits of its jurisdiction. Only in case of grave dereliction of duty or flagrant abuse of fundamental principles of law Constitutional Court can step in.
Having considered submission advanced by learned Advocates appearing for respective parties and on perusal of impugned orders, it can be observed that petitioner is raising challenge to concurrent judgments delivered by Appellate and Revisional Authority, particularly recording finding of facts approving respondent's claim of Mundkarship. Apparently, proceeding came before Mamlatdar/Competent Authority under Act of 1975 vide Reference order dated 03.03.1999 made by Civil Court in RCS No.116/1992/B. The Court referred an issue under Section 32 of Act of 1975 to Mamlatdar as to 'whether respondent is "Mundkar" of petitioner in respect of suit property'. Eventually, it is submitted before this Court that respondent was required to prove his individual claim of Mundkarship and not claim with reference to his mother, particularly in backdrop of fact that her application for declaration was dismissed as abandoned vide order dated 17.07.1987 in Mundkar Registration Case filed in year 1978 based on Talathi report.
This Court finds that order dated 17.07.1987 would not have bearing in present case, as Mundkar Registration Proceeding in name of respondent's mother was closed as abandoned. Admittedly respondent's mother late Kesari died somewhere in year 1984. Naturally, Registration Proceeding was not carried forward to its logical end. The respondent cannot be prevented from prosecuting his claim for Mundkarship owing to abandonment of Registration Proceeding in name of late Kesari. The Supreme Court of India in case of Sharda Sanghi and Ors. Vs. Asha Agarwal and Ors.2, observed as under:
"29.At the outset, we record our inability to concur with the reasoning of the Appellate Court, which has since been affirmed by the High Court, that dismissal of a suit for default would, by itself, operate as res judicata within the meaning of Section 11, CPC to bar adjudication of proceedings initiated by the appellants for execution.
30.Section 11 postulates that the matter must have been 'heard and finally decided'. Dismissal of a suit for default, not being a decision on merits, cannot ordinarily be regarded as a final adjudication so as to attract the strict application of Section 11, CPC."
Turning back to inception of proceeding, particularly pleading in written statement, which gave rise to framing of issues, it can be observed that respondent has specifically pleaded that his mother late Kesari was Mundkar. She was in possession since before appointed date till her death. The respondent never raised individual claim of Mundkarship. In this backdrop, his claim will have to be considered in capacity of legal heir of late Kesari in terms of Section 3 of Act of 1975. It is not disputed before this Court that respondent is son/legal heir of late Kesari.
The learned Deputy Collector while deciding Appeal observed that respondent is claiming Mundkarial right through his mother. The respondent relied upon oral evidence of Audumbar Dhonde, Raya Khorjuvekar and Tukaram Narvekar. All these witnesses consistently deposed that late Kesari/mother of respondent was residing on appointed date in suit house alongwith applicant and she died in suit house itself. Apart from that, name of late Kesari reflects in I and XIV Form depicting her residence and fixed habitation since before appointed date, which is supported by medical certificate and death certificate, which records her address being Assagao. Further, she had submitted an application dated 04.10.1978 for Mundkarship over suit property at Badem, Assagao in Survey No.25 based on report of Talathi.
The Administrative Tribunal observed that respondent has produced notice issued in year 1987 from Malatdar of Bardem in name of late Kesari in reference to application dated 04.10.1978 for her registration as Mundkar, which refers to her address as Bardem Assagaon. Her name appears in other right column in respect of suit property as residence of Hut in survey no.25/6. The Tribunal given reference to pleading in plaint, wherein petitioner admitted that late Kesari was residing in Hut in year 1972, although it is alleged that she left Hut in year 1976. Thus, even petitioner do not dispute that when survey promulgated in year 1972, Hut did exist in property under Survey No.25/6, which implies that prior to appointed date late Kesari was residing in suit house as Mundkar and her fixed habitation in suit house in future corroborated by her application for registration as Mundkar made in year 1978. The Tribunal has also dealt with contra evidence depicting entries in electoral roll from 1975 to 1999 depicting respondent's residence in ward of Chapora, which has been explained stating that distance between Chapora and Badem is only 10 meters and post office is same for both wards.
Apparently, Deputy Collector as well as Administrative Tribunal appreciated entire evidence on record in great detail and recorded finding of facts holding that respondent's mother late Kesari was residing in suit property since before appointed date till her death. The finding is based on proper appreciation of evidence. No perversity or laxity is shown in approach of facts finding Authorities. This Court while considering challenge to order of Tribunal in exercise of jurisdiction under Article 227 of Constitution of India would only ensure that Authorities have exercised powers vested with them in accordance with well established principles of law and not expected to correct errors, if any, in judgment while acting within limits of jurisdiction. This Court satisfied that conclusions reached by fact finding Authorities are based on sound appreciation of material on record and does not warrant interference.
In result, Writ Petition stands dismissed.
Rule stands discharged.