ORDER
R.M.S. Khandeparkar, J.
1. Rule. By consent, rule made returnable forthwith.
2. This revision arises against the Order dated 2nd September, 1998 passed in Regular Civil Suit No. 239/93 by the Civil Judge J.D., Margao. By the impugned order, the trial Court has refrained Issue No. 8 and stayed the suit.
3. The Issue No. 8 was originally framed as under:-
“Whether the defendants prove that this Court has no jurisdiction to try the suit since the defendants are mundkars of the plaintiffs?”
It was the contention of the respondents that the said Issue should be refrained as under:-
“Whether the defendants prove that they are the mundkars of the plaintiffs and hence this Court has no jurisdiction to try this suit?”
Simultaneously it was also submitted by the respondents that the respondents have already filed an application for declaration of their mundkarship rights before the concerned Mamlatdar and therefore the suit should be stayed and kept sine die. Both the contentions were opposed by the petitioners. According to the petitioners no issue arises from the pleadings of the petitioners or respondents which is required to be resolved by the Mamlatdar under any of the provisions of the Mundkar Act.
4. The trial Court by the impugned order, recast the said Issue as it was proposed by the respondents. The trial Court has, consequent to refraining of the said Issue, stayed the suit till the decision on the issue of mundkarship is arrived at by the Joint Mamlatdar who is stated to be dealing with the matter pertaining to the claim of mundkarship by the respondents. Aggrieved by the said Order, the petitioners have preferred the present revision application.
5. The facts in brief relevant for the decision are that the petitioners have filed a suit for injunction in respect of the suit property on the ground that the petitioners are the owners in possession of the suit property and the same comprises of a coconut grove, a small chapel and a residential house. The said residential house is in occupation of the respondents. Along the south-eastern edge of the suit property and about 50 metres away from the said residential house of the respondents, the petitioners had maintained an open wooden pillars shed to store manure and other materials in connection with the agricultural operations in the suit property. On or about 2nd June, 1990 the respondents commenced construction of masonary pillars to the said shed without the consent and permission of the petitioners. The petitioners thereupon complained to the Village Panchayat about illegal construction by the respondents. Thereupon for some time the construction activity was discontinued by the respondents, but thereafter the construction was completed in the month of December, 1990 despite protest by the petitioners. Thereafter the respondents also started tying their catties to the trees in the suit property. The petitioners therefore have sought the relief of permanent injunction to restrain there respondents from trespassing and using the suit property in any manner whatsoever other than the said residential house and the structure lying within the area of 5 metres of the outside walls of the house.
6. The case put forth by the petitioners is disputed by the respondents stating that the respondents are residing in the suit property as the mundkars in relation to the suit house and that the respondents are also having cow-shed and storeroom and they are in existence for more than 30 years with the valid permission of the petitioners and the cow-shed was always being used for tethering the animals. The respondents have denied that they have caused any encroachment in the suit property or that they have done any illegal act on their part in the suit property either on account of repairs to the said shed or otherwise.
7. Upon hearing learned Advocates for the parties and on perusal of the records, it is seen that the basic grievance in the suit is in relation to the suit shed which is situated at a distance of 50 metres away from the house which is in occupation of the respondents and regarding the possession of the suit property. The fact that the suit shed exists at a distance of 50 metres away from the suit house has been specifically stated in para 4 of the plaint and the same has not been denied by the respondents. The fact of the existence of the suit shed at the distance of 50 metres from the house in occupation of the respondents being not in dispute, it is the contention of the petitioners that no issue which can be said to be decided by the Mamlatdar in terms of the provisions of the Mundkar Act arises in the case.
8. It cannot be disputed that whether a house in occupation of a person is a ‘dwelling house’ of such a person within the meaning of the expression ‘dwelling house’ under the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 is necessarily to be decided by the concerned Mamlatdar. Likewise, whether a person in occupation of such a house is a ‘mundkar’ within the meaning of the said term under the said Act is also to be decided by the Mamlatdar. So also a structure, if any, in addition of the house situated in the property is claimed to be forming part of the dwelling house of the mundkar, the same issue is also to be dealt with by the concerned Mamlatdar under the said Act. However, the last proposition of law is not without certain restrictions.
9. Section 31(2) of the said Act clearly bars the jurisdiction of the Civil courts to settle, decide and deal with any question which is by or under the said Act is required to be determined by the Mamlatdar. Section 32(1) thereof requires that if any suit instituted in a Civil Court in which an issue arises which is required to be settled, dealt with and decided by the Mamlatdar under the said Act, the Civil Court shall stay the suit and refer such issue to the Mamlatdar for determination. Therefore, the first question that arises is whether the pleadings in the suit in question discloses any issue which is required to be decided by the Mamlatdar. While considering the said questions, it will also be necessary to take note of the scope of the definition of the expression ‘dwelling house’ under the said Act.
10. The expression ‘dwelling house’ has been defined in section 2(i) to mean the house in which a mundkar resides with fixed habitation and includes the land beneath the said house besides certain portion of land around it as specified under the said definition. Accordingly, in case of dwelling house being situated within the Panchayat area, a dwelling house includes the land on which such dwelling house stands and land around and appurtenant to the said dwelling house subject to a maximum limit of five metres from the outer walls of the dwelling house or 300 sq. metres of area of land in total including the land on which the dwelling house stands. In case the dwelling house is situated beyond the jurisdiction of Village Panchayat or in Municipal area, the dwelling house shall include the land on which the dwelling house stands and the land around and appurtenant to such dwelling house subject to the maximum limit of 2 metres from the outer walls of the dwelling house or total area of 200 sq. metres of land including the land on which the dwelling house stands. The definition also specifies that the option as regards 5 metres around the house or 300 sq.m. in Panchayat area and 2 metres around the house or 200 sq.m. in Municipal area is to be exercised by the mundkar in the manner prescribed under the Act and Rules. The definition further states that the dwelling house also includes cattle shed, workshop or such other structure connected with the business or profession of the mundkar. Moreover it is clear from the reading of the said definition that the maximum limit of the area of a dwelling house in terms of the provisions in the said Act is confined either to 300 sq.m. or 5 metres around the house in Panchayat area and 200 sq.m. or 2 metres around the house in the Municipal area. Therefore, all the structures referred in the said section 2(i) of the Act as forming part of the dwelling house of a mundkar have necessarily to be situated within the area of 300 sq.m. or 5 metres around the house of the mundkar in case of Panchayat areas and within the area of 200 sq.m. or two metres around the house in case of Municipal areas. Any structure situated beyond the said area cannot form part of the dwelling house. In other words, a structure which is situated within the said area and claimed to be part of the dwelling house and such claim being disputed by the bhatkar of the land, then the issue can certainly be said to be arising for decision and is necessarily to be decided by the Mamlatdar under the said Act. However, a structure which is situated beyond the said area cannot form part of the dwelling house within the meaning of the expression ‘dwelling house’ under the said Act. Therefore, there cannot arise any issue for the decision of the Mamlatdar under the said Act when the structure claimed to be a part of a dwelling house is situated at a distance beyond 5 metres from the house or beyond 300 sq.m. of area wherein exists the house. In other words, once it is clear that a structure falls beyond the area defined as dwelling house under section 2(i) of the said Act, it cannot form part of the dwelling house and therefore there cannot be an issue as such as to whether the structure falling beyond the said area to be forming part of the dwelling house requiring the Mamlatdar to adjudicate upon the same.
11. As already seen above, in the case in hand there is no dispute that a suit shed exists at a distance of 50 metres from the house in occupation of the respondent. It is the claim of the respondents that they have already filed
necessary proceedings for declaration of their mundcarial rights in respect of the suit house. Even assuming that the respondents are declared to be mundkars in respect of the said house, that would not entitle the respondents in the facts and circumstances of the case to seek any declaration from the Mamlatdar that the suit shed forms part of the said dwelling house.
12. It should always be remembered that Issues are to be framed for a right decision of the case with an object to pin-point the real and substantial points of difference between the parties. Such points should specifically and unambiguously emerge from the pleadings of the parties. The endure should be to focus the attention of the parties to the principal questions on which they are at variance. One should not lose the sight of the fact that the Court is required to determine the case on the basis of foundation laid in the pleadings of the parties. The issues should therefore be consistent with the case put forth in the pleadings. The issues should confine to the material proposition of law and facts affirmed by one party and denied by the other. No issue need be framed on the point which does not arise for determination in the matter.
13. Considering the pleadings of the parties and the relief prayed for in the plaint, which clearly restricts to the area of the suit property other than the area of 5 metres around the outermost wall of the suit house, the issue of mundkarship cannot arise for consideration in the present suit. In case the petitioners had sought any relief in relation to the area as far as it pertains to the suit house and 5 metres around the outer wall of the suit house or 300 metres including the area occupied by the suit house, certainly such an issue would have been relevant and the suit could not have been proceeded with unless the said issue is decided by the concerned Mamlatdar. The suit pertaining to the area other than the area which can be comprised of a dwelling house, the issue relating to the matter covered by the provisions of the said Act does not arise for the determination in the case and therefore, there can be no occasion for the trial Court to frame any issue relating to mundkarship or the dwelling house. The right of the respondents as the mundkars, if any, stands protected in view of the admitted position that the issue pertaining to the mundkarship in relation to the suit house is already pending before the concerned Mamlatdar.
14. In the circumstances, the impugned order framing the issue of mundkarship and lack of jurisdiction as well as staying the suit cannot be sustained and is liable to be set aside.
15. The petition therefore succeeds and the impugned order is hereby quashed and set aside. The Issue No. 8 is struck off. The trial Court is directed to proceed with the Regular Civil Suit in accordance with law. This, however, shall not preclude the parties from moving the trial Court in case they are so entitled under any law to invite the trial Court to frame any other issue if arises in the matter. Similarly, this will not come in the way of the respondent in exercising their option available, if any, under the said Act as regards the area which a mundkar is entitled to purchase in terms of the provisions of the said Act.
Rule is made absolute in the above terms. No order as to costs.
16. Petition succeeds.
