JACINTA DE SILVAversusROSARINHO COSTA & ORS.

                      [2014] 4 S.C.R. 105                     105


                      JACINTA DE SILVA                                A
                                v.
                ROSARINHO COSTA & ORS.
               (Civil Appeal No. 4002 of 2014)
                       MARCH 25, 2014
                                                                      B
                [GYAN SUDHA MISRA AND
              PINAKI CHANDRA GHOSE, JJ.)

      Code of Civil Procedure, 1908: Suit for eviction filed
before the Mamlatdar on the ground that defendant no. 2 was           C
in illegal occupation of the house owned by plaintiffs-
respondent no. 1 and 2 - Said suit dismissed for default - Fresh
suit filed by respondent no. 1 and 2 for declaration that they
are owners of the house - Decreed - Execution proceedings -
Heirs of judgment debtor objected to the ex~cution                    D
proceedings - Executing court rejected execution application
holding that trial court had no jurisdiction to try the suit - High
Court set aside the said order and also rejected the argument
that the .suit was barred by res judicata as the case filed before
the Mamlatdar by respondent no. 1 and 2 was dismissed -               E
Held: 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       F
- High Court duly noticed that the trial court while deciding the
issues framed, duly considered the facts which were incidental
thereto - High Court held that the issues tried by trial court
cannot be said to be within the jurisdiction of the authorities
under the Mundkar Act - High Court further held that the /is          G
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, High Court
correctly held that the trial court had jurisdiction to entertain

                               105                                    H
    106      SUPREME COURT REPORTS              [2014] 4 S.C.R.


A the suit - There was no question of application of the principle
  of res judicata in the given facts - Trial court passed the said
  decree rightly and it cannot be said to be lacking inherent
  jurisdiction to do so - Res judicata.

         The plaintiffs-respondents no. 1 and 2 claimed to be
8
    the owner of the property which comprised of mundkarial
    house. They filed suit for eviction in the court of
    Mamlatdar against the original defendant no. 2 on the
    ground that the suit property was in occupation of
C   original defendant no. 1 after death of her husband and
    she had ceased to occupy the suit property and the suit
    house was in illegal occupation of original defendant no.
    2. The original 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. The said
D   proceedings before the Mamlatdar were dismissed for
    default and the rights of the parties remained to be
    adjudicated. Respondent no. 1 and 2 then filed a suit
    against original defendant no. 1 and 2 for declaration that
    they were own~rs of the suit house and for eviction of
E   defendant no. 2 and possession of suit house. The suit
    was decreed in favour of respondent no. 1 and 2
    declaring them to be owners of the suit house and further
    ordering eviction of defendant no. 2. No appeal was filed
    against the eviction decree and the decree became final.
F   An execution application was instituted seeking eviction
    of defendant No.2 from the suit house. The heirs of
    defendant No.1 comprising the appellant objected to the
    said proceedings contending that the suit was
    misconceived and the decree passed by the civil court
G   was a nullity. The executing court after considering such
    objection of the judgment-debtor rejected the said
    execution application. 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
H   and defeat the execution proceedings and further held
  JACINTA DE SILVA v: ROSARINHO COSTA & ORS.              107


  that the said mundkarial house was occupied by                 A
· defendant No.2 without the consent and/or permission of
  the respondent Nos. 1 and 2. The High Court also rejected
  the argument on behalf of defendant no.1 that since the
  suit was not maintainable as the case filed before the
  Mamlatdar by respondent no.1 and 2 was dismissed,              B
  therefore, the suit was barred by res judicata. The instant
  appeal was filed challenging the order of the High Court.

     Dismissing the api;>eal, the Court

       HELD: 1. The High Court duly took note of the fact        C
 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    o
 submitted that husband of defendant no.1 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        E
 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
 fu,rther held that the lis was with regard to the ownership
 of the suit house since defendant No.1 could not pursue
                                                                 F
 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. There was no
 question of application of the principle of res judicata in
 the given facts. The trial court passed the said decree         G
 rightly and it cannot be said to be lacking inherent
 jurisdiction to do so and 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. The reasons given by the High Court in the
                                                                 H
    108       SUPREME COURT REPORTS               [2014] 4 S.C.R.


A   matter cannot be interfered with in the given facts. [Paras
    8, 9 and 1O] [111-F-H; 112-A-D]

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4002 of 2014.

B       From the Judgment and Order dated 17.11.2009 of the
    High Court of Bombay at Panaji in W.P. No. 483 of 2003.

        M.N. Krishnamani, Bhavanishankar V. Gadnis, V.
    Santhana Lakshmi, A. Venayagam Balan for the Appellant.
c         The Judgment of the Court was delivered by

          PINAKI CHANDRA GHOSE, J. 1. Leave granted.

        2. This appeal has been filed by the appellant challenging
D 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
E 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
F the property exists a residential house and a m!.md~~rial house
  (suit house bearing No. 1124). The said mundkarial house was
  in occupation of one Jose Francisqo 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,
G 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
H learnt that the original defendant No.1 (Mrs. Filomena) had
 JACINTA DE SILVA v. ROSARINHO COSTA & ORS.                  109
          [PINAKI CHANDRA GHOSE, J.]
started residing with her daughter at Verna. Respondent Nos.1       A
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.
                                                                    B
      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    C
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       D
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       E
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      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
                                                                    G
    (ii) Eviction of defendant No.2 and possession of the suit
    house.

     6. It is admitted by respondent No~.1 and 2 in the plaint
that the property comprised of a mundkarial house which.. H
    110     1   SUPREME COURT REPORTS              {2014) 4 S.C.R.


A 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.
B 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
c 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
D         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
E        had been residing with her married daughter at Verna and
         neither the defendant nor their children occupied the
         mundkarial house?

       7. On 31st August, ~000, the suit was decreed in favour
  of the plaintiffs (respondent Nos.1 and 2) declaring that the
F 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
G 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
H and the decree passed by the Civil Court was a nullity. The
 JACINTA DE SILVA v. ROSARINHO COSTA & ORS.                    111
          [PINAKI CHANDRA GHOSE, J.]
executing court after considering such objection of the judgment- A
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        B
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               C
mundkarial house in the North-Eastern corner of the property
was oceupied 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 Nq.1 tried to rely
upon the entries made in the Matriz Records and further                0
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 ori behalf of said defendant
No.1/judgment-debtor that since the suit was not maintainable          E
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               F
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          G
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          H
    112       SUPREME COURT REPORTS                     [2014) 4 S.C.R.


A   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
B   of res judicata in the given facts.

          9. In view of the factual matrix, it is c;ibsolutely clear that the
    trial court passed the said decree rightly and it cannot be said
    to be lacking inherent jurisdiction to Clo so and we hold that the
    trial court had jurisdiction to entertain the suit. Therefore, the
C   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.
o   We affirm the reasoning given by the High Court. We find no
    merits in this appeal. Accordingly, we dismiss this appeal.

    D.G.                                              Appeal dismissed.