Case Note & Summary
The case involves a Second Appeal filed by the defendants against the judgment and decree of the lower appellate court in a suit for demolition of structures. The plaintiffs, Antonio Lobo and Mario Lobo, are the owners of property 'Tropa' or 'Seliem Bhat' under survey no. 211/1 at Cobrawado, Calangute. The defendants, Felix Fernandes and others, have been residing in the original house identified as 'B' admeasuring about 82 square metres. The plaintiffs alleged that the defendants made extensions/encroachments identified as 'A' (36 sq m in December 1987), 'C' (25 sq m in October 1983), 'D' (33.725 sq m in 1978), and 'E' (9.125 sq m in October 1983). The plaintiffs filed Special Civil Suit No.157/1989 seeking demolition of these structures and restoration of the property. The trial Court decreed the suit, and the lower appellate court confirmed the decree. The defendants filed this Second Appeal, which was admitted on 25.08.2000 on two substantial questions of law: (a) whether the trial Court was right in deciding issue no.3 regarding defendants' claim of Mundkarship in view of the bar under Section 31(2) of the Goa Daman and Diu Mundkar (Protection from Eviction) Act, 1975; and (b) whether the Courts below erred in granting mandatory injunction for demolition of structures 'C', 'D', and 'E' when the suit was barred by limitation. The High Court held that the Civil Court had no jurisdiction to decide the issue of Mundkarship as per Section 31(2) of the Act, and that the suit for demolition of structures 'C', 'D', and 'E' was barred by limitation as the encroachments were made in 1978 and 1983, more than three years before the suit was filed in 1989. The Court allowed the appeal, set aside the judgments of the Courts below, and dismissed the suit for demolition of structures 'C', 'D', and 'E'. The suit for demolition of structure 'A' (made in December 1987) was remanded to the trial Court for fresh decision on the issue of Mundkarship, as the Civil Court cannot decide that issue.
Headnote
A) Civil Procedure - Jurisdiction - Bar on Civil Court - Section 31(2) Goa Daman and Diu Mundkar (Protection from Eviction) Act, 1975 - The trial Court erred in deciding issue no.3 regarding defendants' claim of Mundkarship as the Act expressly bars Civil Court's jurisdiction to decide such issues. Held that the issue of Mundkarship must be decided by the competent authority under the Act, not by the Civil Court (Paras 3, 5-6). B) Limitation - Suit for Demolition - Encroachment - Limitation Act, 1963 - Article 65 - The suit for demolition of structures identified as 'C', 'D', and 'E' was barred by limitation as the encroachments were made in 1978 and 1983, while the suit was filed in 1989. Held that the Courts below erred in granting mandatory injunction for demolition of these structures (Paras 3, 7-8). C) Property Law - Mundkar Rights - Encroachment - Goa Daman and Diu Mundkar (Protection from Eviction) Act, 1975 - The defendants were residing in the original house 'B' and claimed Mundkarship over the suit structures. The plaintiffs sought demolition of extensions/encroachments. Held that the Civil Court cannot decide Mundkar status, and the suit for demolition of time-barred structures cannot be decreed (Paras 4-8).
Issue of Consideration
Whether the Civil Court had jurisdiction to decide the issue of Mundkarship in view of Section 31(2) of the Goa Daman and Diu Mundkar (Protection from Eviction) Act, 1975, and whether the suit for demolition was barred by limitation.
Final Decision
The Second Appeal is allowed. The judgments and decrees of the Courts below are set aside. The suit for demolition of structures 'C', 'D', and 'E' is dismissed as barred by limitation. The suit for demolition of structure 'A' is remanded to the trial Court for fresh decision on the issue of Mundkarship, as the Civil Court cannot decide that issue.
Law Points
- Civil court jurisdiction barred for Mundkar status determination
- Limitation for demolition suit runs from date of encroachment
- Mandatory injunction cannot be granted if suit is time-barred
