Disposed

Khatiza Beg, Rep. by Duly Constituted P.O.A Ms. Fatima Beg v. Shaikh Zaffar and Anr.

Bombay HC23 Sept 2021SA/83/2010

Case brief

AI extract

What is this about?

The court upheld the dismissal of the mundkar's suit and the decree in the counterclaim. Instead of setting aside the decree, the court deferred its execution until the Deputy Collector determines the validity of the mundkarship claim through pending appeals under the Mundkar Act.

What did the court decide?

The execution of the impugned Judgment and Decree is deferred until the authorities under the Mundkar Act determine the status of the appellant as a mundkar and the extent of the dwelling house.

Khatiza Beg, Rep. by Duly Constituted P.O.A Ms… — Succession and Inheritance | Bombay HC (2021)

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223 SA 83 of 2010.doc

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Jose

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IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.83 OF 2010

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SMT. KHATIZA BEG, w/o Hassan Ibrahim Beg, major in age, married, housewife, represented herein by her daughter and duly constituted Power of Attorney Ms. Fatima Beg, of major age, r/o H. No. 22, Sankovwada, Veling, Priol, Ponda, Goa. ... Appellant.

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Versus

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SHRI SHAIKH ZAFFAR major in age, married, r/o H. No. Not Known, Sankovwada, Veling, Ponda, Goa

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SMT. RUKSAR SHAIKH ZAFFAR (since deceased) 2(a) Miss Farzana Jaffar Shaikh (Daughter) 2(b) Mr. Salim Jaffar Shaikh (Son) 2(c) Mrs. Dilshad Salim Shaikh (wife of Respondent No.2(b). 2(d) Miss Farida Jaffar Shaikh (daughter) 2(e) Mr. Javed Jaffar Shaikh (son) 2(f) Mr. Shahid Jaffar Shaikh (son)

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All residents of Katvaru Mahaveer Chi, Gundavali, Andheri[E], Mumbai, 400069, Maharashtra, India. ... Respondents.

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Mr. V. Amonkar, Advocate for the Appellant .

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Mr. Santosh Bharne with Ms. Kalpana Saperkar, Advocates for Respondents No.1 and 2(POA).

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Page 1 of 8

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23rd September 2021

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223 SA 83 of 2010.doc

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Coram: M.S. SONAK, J. Date: 23^rd September 2021.

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: ORAL JUDGMENT

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1.Heard Mr. Amonkar for the Appellant and Mr. Bharne for
Respondents No.1 and 2.

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2.This second appeal was admitted on 21.01.2011 on the following
substantial questions of law:-

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“i. Whether in view of the claim of mundkarship in respect of
the suit house and 300 sq. mts. of the surrounding land in the
suit property having been raised by the Appellant and in view
of the fact that the Respondents being successors in title vis-a-
vis the suit property, having purchased it from the Appellant's
landlord, it was obligatory for the Courts below to have
framed the issue of mundkarship and referred it to the
Mamlatdar in terms of Section 32 of the Mundkar Act?

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ii. Whether in view of the dispute between the Appellant and
the Respondents as borne out from the suit and the Counter
Claim, the jurisdiction of the Civil Court was barred in view
of the provisions of the Mundkar Act?

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iii. Whether the Civil Court has jurisdiction to decide the
issues between the appellant mundkar and the respondents
bhatkar vis-a-vis the suit property, which was claimed by the
Appellant as mundkarship property and thereby grant relief as
prayed by the Respondents?

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3. The Appellant instituted Regular Civil Suit No. 41/2001/B before the Civil Judge, Junior Division at Ponda to restrain the Respondents from interfering and encroaching into the suit property. The Respondents

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Page 2 of 8

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23rd September 2021

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223 SA 83 of 2010.doc

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filed a written statement disputing the claim of the Appellant. The
Respondents also raised a counterclaim to direct the Appellant to
demolish the W.C. and hand over vacant possession of the area of 106.25
square meters said to be encroached by the Appellant herein.

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4.The Trial Court by its Judgment and Decree dated 26.12.2008
dismissed the suit as well as the counterclaim. The Appellant as well as
the Respondents instituted Regular Civil Appeal Nos.15/09 and 41/09
questioning the impugned Judgment and Decree made by the Trial Court
by a common Judgment and Decree dated 08.07.2010. The First
Appellate Court disposed of both the appeals. The First Appellate Court
maintained the dismissal of the Appellant's suit by the Trial Court.
However, the First Appellate Court allowed the counterclaim raised by
the Respondents and made a decree to that effect.

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5.Aggrieved by the decree made in the counterclaim alone, the
Appellant, has instituted this second appeal which was admitted on the
aforesaid substantial questions of law.

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6.Mr. Amonkar, the learned Counsel for the Appellant submits that
the main issue involved in this matter is whether the W.C. And the area
of 106.25 square meters forms a part of “dwelling house” of the Appellant
as defined under the provisions of The Goa, Daman and Diu Mundkars
(Protection from Eviction) Act, 1975 (“Mundkar Act”). He submits that
the provisions of sections 13 and 32 of the Mundkar Act make it clear
that such an issue has to be determined by the Mamlatdar and not by the

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Page 3 of 8

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23rd September 2021

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223 SA 83 of 2010.doc

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Civil Court. Therefore, it was incumbent on the Civil Court to have
referred this issue for its determination to the Mamlatdar, instead of itself
determining this issue and making the impugned decree in the
counterclaim. He submits that the impugned decree made by the First
Appellate Court in the counterclaim is consequently an exercise without
jurisdiction, and therefore, all the substantial questions of law are
required to be answered in favor of the Appellant.

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7.Mr. Bharne, the learned Counsel for the Respondents disputes the
aforesaid contentions. He submits that in the absence of a purchase
certificate, the Appellant had no right or authority to claim any
ownership rights and to proceed with the construction of the W.C. In any
case, he submits that the Appellant, in this case, had instituted
proceedings before the Mamlatdar seeking both an injunction as well as a
declaration on the aspect of mundkarship. He submits that this
application bears No. MAM/MUND/REG-VEL/8/2010 has already
been dismissed by the Mamlatdar vide Judgment and Order dated
29.11.2017. He, therefore, submits that since the competent authority
has already ruled against the Appellant herein, this second appeal may be
dismissed.

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8.Mr. Amonkar, in rejoinder, points out that Mamlatdar's order
dated 29.11.2017 has been appealed before the Deputy Collector in
MUND/APPL/DY.COLL-13-2018. He, therefore, submits that the
determination by the Mamlatdar has not yet attained finality. Mr.

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Page 4 of 8

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23rd September 2021

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223 SA 83 of 2010.doc

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Amonkar submits that in such circumstances, the impugned decree is
liable to be set aside.

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9. The rival contentions now fall for my determination.

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10.Mr. Amonkar, the learned Counsel for the Appellant is quite right
in his submission that if any issue arises about mundkarship or the extent
of the dwelling house, then, such issue is required to be decided by the
Mamlatdar under the provisions of the said Act. Section 13 of the said
Act makes it clear that if such issue arises before the Civil Court, then, the
Civil Court will transfer this issue for determination before the
Mamlatdar.

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11.In this case, however, there is no dispute that the Appellant herself
instituted substantive proceedings before the Mamlatdar seeking, inter
alia, a declaration of mundkarship as also injunction restraining the
Respondents from interfering precisely with the same portion of the
property which is now the subject matter of the civil suit and this appeal.

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12.In such circumstances, no useful purpose will be served by simply
setting aside the decree, remanding the matter to the Civil Court or the
First Appellate Court with directions to refer this issue for determination
by the Mamlatdar. According to me, such a course of action will only
contribute to the avoidable delay in the disposal of the proceedings.

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Page 5 of 8

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23rd September 2021

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223 SA 83 of 2010.doc

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13.The Mamlatdar has dismissed the claim of the Appellant.
However, as against such dismissal, the Appellant has appealed to the
appellate authority. This appeal is pending.

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14.Therefore, the interests of justice will be met if the impugned
Judgment and Decree is not interfered with but its execution is deferred
until the authorities under the Mundkar Act determine one way or the
other the status of the Appellant as a mundkar, and further, the extent of
the dwelling house in respect of which the mundkarship is claimed.

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15.The aforesaid means that the contention of the Appellant about
Mamlatdar being the appropriate authority for deciding the issue of
mundkarship or the extent of the dwelling house of the mundkar is
accepted. However, since the Appellant has already approached the
competent authorities and the competent authorities are already seized of
this issue, there is no necessity of setting aside the impugned Judgment
and Order, but only the execution of the impugned Judgment and Decree
can be deferred until the determination of the issue by the authorities
under the Mundkar Act. The substantial questions of law are answered in
the aforesaid terms.

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16.The proceedings before the Deputy Collector are directed to be
disposed of expeditiously that is within three months from today, since, it
is pointed out that even the arguments have been concluded and the
matter is posted for orders. If the order of the Deputy Collector is against
the Appellant and the Appellant does not appeal against the same or take

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Page 6 of 8

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23rd September 2021

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223 SA 83 of 2010.doc

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out any further proceedings as are permissible under the law within the
period prescribed, the decree can be executed. However, if the Appellant
institutes a revision petition against the decision of the Deputy Collector
within the prescribed period of limitation, then, the issue of mundkarship
and the extent of dwelling house can still be said to be pending and the
decree will not be put into execution.

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17.If the Tribunal ultimately decides against the Appellant, and the
Appellant does not, within three months, take out any further
proceedings and secures interim reliefs, then, the issue can be said to be
determined against the Appellant and the decree will then proceed for
execution in accord with the law.

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18.If the authorities under the Mundkar Act determine that the
Appellant is indeed the Mundkar and the extent of the dwelling house
covers the portion where the W.C. is put up or the portion which is now
required to be restored to the Respondents, then obviously, the decree will
be rendered inexecutable, because, such decree cannot be put into
execution against a mundkar having regard to the provisions of the
Mundkar Act.

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19.In the peculiar facts of this case, the authorities under the
Mundkar Act are directed to dispose of the proceedings as expeditiously
as possible. The learned Counsel for the parties state that they will not
seek any unnecessary adjournments and cooperate with the authorities in
the expeditious disposal of the proceedings.

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Page 7 of 8

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23rd September 2021

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223 SA 83 of 2010.doc

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20.The appeal is disposed of in the aforesaid terms. There shall be no
order as to costs.

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M.S. SONAK, J.

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Page 8 of 8 23rd September 2021

Khatiza Beg, Rep. by Duly Constituted P.O.A Ms. Fatima Beg v. Shaikh Zaffar and Anr.

Case brief

What is this about?

What did the court decide?

Khatiza Beg, Rep. by Duly Constituted P.O.A Ms. Fatima Beg v. Shaikh Zaffar and Anr.

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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