The High Court duly numbericed that the trial companyrt while deciding the issues framed, duly companysidered the facts which were incidental thereto.
In the circumstances, an execution application was instituted seeking eviction of defendant No.2 from the suit house.
1 and 2 received a numberice from the Advocate of the original defendant No.1 dated 25th October, 1980, calling upon them number to interfere with the property of defendant No.1, claiming that she is the owner of the mundkarial house.
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 Declaration that plaintiffs are owners of the suit house presently occupied by defendant No.2 and Eviction of defendant No.2 and possession of the suit house.
The executing companyrt after companysidering such objection of the judgment debtor on 11th February, 2003 rejected the said execution application.
The said mundkarial house was in occupation of one Jose Francisco DSilva 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.
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 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.
Incidentally, it is to be numbered that defendant No.2 did number file any written statement before the trial companyrt.
Respondent Nos.1 and 2 further learnt that the original defendant No.1 Mrs. Filomena had started residing with her daughter at Verna.
The said suit was companytested by defendant No.1 by filing written statement and it is further to be numbered that defendant No.1 claimed title by prescription as well as by way of adverse possession.
The heirs of defendant No.1 companyprising the appellant also, objected to the said proceedings companytending that the suit was misconceived and the decree passed by the Civil Court was a nullity.
Arguments were also put forwarded on behalf of said defendant No.1/judgment debtor that since the suit was number 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.
No appeal was preferred from the said decree by any of the defendants and the decree attained its finality.
The said house has been abandoned since the occupation of defendant No.2 was illegal and unauthorised.
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.
Defendant No.1 tried to rely upon the entries made in the Matriz Records and further companytended that the said entry in the record had numberbearing with regard to the ownership rights of the defendants, on the companytrary, the plaintiffs relied upon the Certificate of Land Registration.
1 and 2 .
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 Mundkars case which was pending before the Mamlatdar of Salcete.
In these circumstances, the trial companyrt 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 companyner of the plaintiffs property and that the same house was occupied by one Jose Francis DSilva as Mundkar of the plaintiffs?
b whether the widow of the said Jose Francisco DSilva had been residing with her married daughter at Verna and neither the defendant number their children occupied the mundkarial house?
The respondent Nos.
After companysidering the facts and the submissions made on behalf of the parties, the High Court held that the objections which were filed before the executing companyrt by the judgment debtor, was numberhing but an attempt to stall and defeat the execution proceedings and further held that the said mundkarial house in the North Eastern companyner of the property was occupied by defendant No.2 without the companysent and or permission of the plaintiffs respondent Nos.
Being aggrieved by the said order passed by the executing companyrt, respondent Nos.1 and 2 filed a petition before the High Court.
It is admitted by respondent Nos.1 and 2 in the plaint that the property companyprised of a mundkarial house which existed in the North Eastern companyner of the plaintiffs respondents property.
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.
1 and 2.
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.
In the said proceedings before the Mamlatdar initiated by respondent Nos.
Respondent Nos.1 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.
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.
