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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

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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  

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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.     

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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  

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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  

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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  

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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  

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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.

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