1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 48 OF 2005. 1. Mr. Maximo J. R. De Souza, major in age and his wife; 2. Mrs. Maria Helena De Souza major in age, housewife; 3. Mrs. Auta Gerson De Souza major in age, widow of late Francisco Agostinho D'Souza housewife All residing at H. No.120, Velsao, Post Office, Cansaulim, Mormugao, Goa-403 712. ... Appellants/Plaintiffs Versus 1. Mr. Shyamsunder Ladu Naik major in age, business, 2. Mr. Anand Ladu Naik major in age, service, 3. Mrs. Rukmini Ladu Naik widow of late Ladu Naik. 4. Mr. Nanda Ladu Naik, major in age, 5. Mr. Prabhakar Ladu Naik major in age, All residing at House No.112, Murdi, Cuelim, Mormugao, Taluka Goa. .. Respondents/Defendants 2 Mr. M. S. Usgaonkar, Senior Advocate with Mr. I.Aga,Advocate for the appellants. CORAM : R. C. CHAVAN,J. DATE : 25 th August, 2008. ORAL JUDGMENT : 1. This appeal takes exception to the judgment dated 28.7.2004 whereby the leaned Third Additional District Judge, South Goa, Margao allowed appeal setting aside the judgment passed by the learned Civil Judge, S.D., Vasco in Regular Civil Suit No.122/88, whereby the learned Civil Judge had decreed appellants' suit for recovery of possession of the property in question. 2. I have heard Shri Usgaonkar, learned Senior Counsel for the appellants. None appeared for the respondents though duly served. The factual context in which this appeal arises, is as under : The appellants had filed suit against the respondents for recovery of possession of property occupied by gadda covering 4x3 meters of area of the plaintiffs' land on the ground that defendants were licencees 3 and their licence to occupy the gadda had been revoked by the plaintiffs. The defendants filed written statement, wherein they admitted plaintiffs' ownership as also the fact that they were lincences in respect of gadda shop. They had specifically pleaded in paragraph 9 of the written statement that monthly rent of Rs.6, which was raised to Rs.10, was being paid by them all along. In paragraph No.13, they stated that they stopped paying rent because they wanted to take benefit of Goa, Daman and Diu Mundkar (Protection from eviction ) Act, 1975 and, therefore, claimed to be mundkars. On such plea being raised, an issue as to whether the defendants were mundkars, had been framed. The plaintiffs filed an application for deleting that issue No.6. This application was allowed by the order dated 2.3.2000. Thereafter, the parties went to trial on the remaining issues and suit was decreed by the learned Trial Judge by his judgment dated 15.11.2001, which was challenged before the learned Additional District Judge. The learned Additional District Judge found that the issue whether the defendants were mundkars or not, was required to be referred to Mamlatdar in view of provisions of Section 32 of the Mundkar Act and, therefore, remanded the matter back to the Trial Court for reframing the issue, which had been deleted and to refer it to the Mamlatdar. 3. Initially, this judgment was challenged by filing Writ Petition 4 No.481/2004, which was allowed to be withdrawn with liberty to file present appeal. This is how the appeal is filed. 4. It is unfortunate that the learned Judge of the First Appellate Court did not comprehend the facts before coming to the conclusion that the issue of mundkarship had in fact arisen in the case for being referred to Mamlatdar. He should have seen that in the written statement itself, the defendants had categorically admitted that their father had been inducted as licencee for installing shop on rent of Rs.6 which was raised to Rs.10 subsequently. Their claim in paragraph 13 of the written statement that they wanted to take advantage of Mundkarship Act, should have been rejected because they did not have any option in the matter whether to take advantage of the provisions of the Act or not. The Act did not apply to them in terms of definition of “mundkar” under section 2(p) of the Act, which specifically excluded a person paying rent to bhatkar for occupation of the house. In view of this, the claim of the respondents to have been mundkars, was itself unfounded and there was no warrant for referring such a claim to the Mamlatdar. Since the respondents had failed to lay foundation of such a claim, the learned Trial Judge had rightly deleted that issue and have decided the suit on merits. It was, therefore, necessary for the learned Additional District Judge to decide the appeal on merits of the 5 matter rather than remitting it back to Trial Court for framing issue, which had been rightly deleted by the Trial Judge. The appeal is, therefore, allowed. The impugned order is set aside. The appeal is remitted back to learned Judge of the District Court for being decided on merits. R. C. CHAVAN, J. SMA