Allowed

Ms. Rosa Rodrigues E Fernandes Alias Rosa Pudenciana Assencao Rodrigues, v. State of Goa, Rep. by Its Chief Secretary and 7 Ors.

Bombay HC16 Dec 2010CA/50/2010

Case brief

AI extract

What is this about?

Single judge granted temporary injunction restraining defendants from reconstructing the undivided Mundkari house pending disposal of the appeal, holding plaintiffs entitled to heritable rights under Section 3 of the Mundkars Act.

What did the court decide?

Injunction restraining respondents from construction; Status quo maintained; Application granted under prayer clause (a).

Ms. Rosa Rodrigues E Fernandes Alias Rosa Pudenciana Assencao… — Partition | Bombay HC (2010)

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IN THE HIGH COURT OF BOMBAY AT GOA

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CIVIL APPLICATION NO.50 OF 2010 IN

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FIRST APPEAL NO.39 OF 2010

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MS. ROSA RODRIGUES E FERNANDES ALIAS ROSA PUDENCIANA ASSENCAO RODRIGUES

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…. Applicant

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V/S

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STATE OF GOA, REP. BY ITS CHIEF SECRETARY AND 7 ORS.

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…. Respondents

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Mr. Joseph Rodricks, Advocate for the Applicant. Mr. M. Salkar, Additional Government Advocate for Respondents Nos.1 & 2.

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Mr. A.F. Diniz, Advocate for Respondents Nos.5 & 6.

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CORAM : N.A. BRITTO, J.

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DATE : 16^th DECEMBER, 2010

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ORDER :

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Heard learned Counsel on behalf of the parties.

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There is no dispute that Gaudencio Francisco Rodrigues and his sister-in-law Smt. Rosa Piedade Rodrigues were registered as Mundkars by the order dated 16/02/2002 in respect of a common house admeasuring 248.53 square metres. The said house was being enjoyed in separate portions identified under No.1736/1 by the said Gaudencio Francisco Rodrigues and under No.1736/2 by the said Smt. Rosa Piedade Rodrigues. Plaintiff no.1 is the daughter of the said Gaudencio Francisco Rodrigues while defendants nos.5 and 6 are the sons of the

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said Smt. Rosa Piedade Rodrigues. After the death of the said Gaudencio Francisco Rodrigues on or about 15/10/1988 the said portion remained in possession of the said plaintiff no.1; otherwise there is no reason why the said defendants had to communicate with the plaintiffs about the precarious condition of the suit house that it was requiring urgent repairs.

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The said house admeasuring 248.53 square metres has never been divided. Section 3 of the Mundkars (Protection, Eviction) Act, 1975, provides that the rights of a mundkar in his dwelling house shall be heritable and shall not be transferable. The plaintiff no.1 as the daughter whether married or not was entitled to inherit the mundkarial rights of the said Gaudencio Francisco Rodrigues, who was jointly registered as a mundkar along with the said Smt. Rosa Piedade Rodrigues. Admittedly, not only the suit house which has not been divided nor the property on which it stood. Defendants nos.5 & 6 have started reconstruction of the said house claiming that they are reconstructing the portion occupied by them. Prima facie, the said defendants would not be entitled to reconstruct any portion of the said house which was not divided between the legal representatives of the said Gaudencio Francisco Rodrigues and that of Smt. Rosa Piedade Rodrigues. The plaintiffs (i.e. the appellants, herein) therefore would be entitled for an injunction in their favour restraining the reconstruction of a part of the said house by defendants

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nos.5 & 6 pending the hearing and final disposal of the appeal which has already been admitted.

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Application, therefore, granted in terms of prayer clause (a) and

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accordingly disposed of.

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Clause (a) – That by an order the respondent no.5 & 6 their relatives, agents, contractors, masons and labourers, etc. be restrained by temporary injunction from undertaking any kind of construction in place of the suit house and in the mundcarial area or in any manner interfering with the same pending hearing and final disposal of the First Civil Appeal on merits.

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Parties to maintain status quo in relation to the said house.

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NH/-

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N.A. BRITTO, J.

Ms. Rosa Rodrigues E Fernandes Alias Rosa Pudenciana Assencao Rodrigues, v. State of Goa, Rep. by Its Chief Secretary and 7 Ors.

Case brief

What is this about?

What did the court decide?

Ms. Rosa Rodrigues E Fernandes Alias Rosa Pudenciana Assencao Rodrigues, v. State of Goa, Rep. by Its Chief Secretary and 7 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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