1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEALS NO. 112 AND 113 OF 2005. Smt. Filomena Fernandes, Cuncolim, Goa. .... Appellant. Versus Miss Maria Joana Rebello (Expired) through her L.Rs. ..... Respondents. Shri Sudesh Usgaonkar, Advocate for the Appellant. Shri J. Godinho, Advocate for the Respondents No.1(a) and 1(b). CORAM: R.M.S. KHANDEPARKAR, J. DTE: 17 th FEBRUARY, 2006. P.C.: Heard. 2. Since common questions of fact and law arise in both the appeals, they were heard together, and are being disposed of by this common order. 3. In both the appeals the appellant seeks interference in the Judgments and Decrees on the following points which are contended to be substantial questions of law arising in the matter :­ 2 a) Whether the Appellate Court was right in holding that the Mundkar residing in the dwelling house does not have any right in the dwelling house because she was not declared as Mundkar under Section 8A of the Mundkars Act, even though mundkarship was admitted by Respondents, the dwelling house was constructed by the Mundkar and that she was registered as Mundkar under section 29 of the Mundkars Act was the admitted position ? b) Whether the Appellate Court was right in holding that after the death of the Mundkar, without leaving any successor, the dwelling house vests in the Respondent because she is the owner of the land beneath the dwelling house and therefore the dwelling house does not vest in the Government ? c) Whether the Appellate Court was right in holding that the suit instituted by the Respondent in respect of the dwelling house of her Mundkar, for eviction of the person residing in the house on behalf of the said Mundkar, was maintainable when the Respondent had no right to the dwelling house ? d) Whether the Appellate Court was right in restricting the interpretation of section 3 of the Mundkar Act reading therein section 2(n) of the Act being definition of the member of the family in relation to Mundkar, which is not the section classifying the successors ? 4. The learned Advocate appearing for the respondents, on the 3 other hand, submitted that none of those points arise for consideration in the appeals, in view of the fact that the plea sought to be raised by the appellant before the lower Court as well as in the lower appellate Court was that the appellant was a tenant of one Salvacao D'Souza, who was the mundkar in respect of the suit premises and who expired without leaving any issues or legal representatives. There was never an issue raised of any mundcarial right in favour of the appellant or being a successor of the mundkar in the courts below and therefore none of the points which are sought to be raised arise for consideration. 5. The learned Advocate appearing for the appellant, on the other hand submitted that the main issue which is required to be dealt with relates to the alleged entitlement of the respondents to question the occupancy of the appellant in the suit house who was admittedly inducted therein by Salvacao D'Souza who was undisputedly the mundkar in respect of the suit house. Once it was not in dispute that Salvacao was a mundkar and she had inducted the appellant in the suit house, on the death of Salvacao, no right to the suit house is acquired by the respondent and in terms of Article 296 of the Constitution of India and Section 14 of the Goa Land Revenue Code, 1968 the suit house would belong to the Government and the respondent will have no right thereto. 4 6. The learned Advocate for the appellant drawing attention to the points for determination framed by the Court below in Regular Civil Appeal No. 170/2002 submitted that the lower appellate Court did frame the point for consideration as to whom the suit house belongs after the death of said Salvacao and held that the ownership of the suit house vests with the plaintiff. The said point was formulated in view of the issue which was framed by the trial Court to the effect:­ “Whether the plaintiff proves that the defendant has occupied the suit house without her consent or permission ?” based on the pleadings of the parties. The discussion in relation to the said point framed by the lower appellate Court nowhere discloses any contention having been raised by the appellant to the effect that on the death of Salvacao the dwelling house stood vested in the Government or that the appellant acquired any other status in relation to her occupancy in the suit house. Being so, formulation of the point in the manner it has been framed by the lower appellate Court would not warrant interference by this Court in exercise of powers under Section 100 of C.P.C. on the alleged points framed by the appellant as the substantial questions of law. It is not sufficient that the points raised happen to be substantial questions of law, but they should arise in the facts and circumstances of the case under consideration. In the absence thereof, question of admitting the appeal by framing questions of law on hypothetical basis does not arise. 5 7. As regards the ownership of the property in question in favour of the respondent, there can be no scope for disputing the same once it is undisputed fact that the house was occupied by Salvacao D'Souza in her capacity as mundkar. Plain reading of the definition of the term “mundkar” would disclose that he is a person who, with the consent of the batkar or the person acting or purporting to act on behalf the batkar, lawfully resides with fixed habitation in a dwelling house and the term “batkar” has been defined under the Mundkars Act to mean a person who owns the land in which the mundkar has a dwelling house. The term “dwelling house” has been defined to mean a house in which the mundkar resides with a fixed habitation and it includes the land on which the dwelling house is standing as well as the land appurtenant thereto to a specified limit. Obviously, therefore, there cannot be a mundkar nor his dwelling house in the absence of land being owned by someone else i.e. batkar. Further, plain reading of the definition of the said terms along with Section 15 of the Mundkars Act would also disclose that till and until the dwelling house along with the land to a permissible extent around it is purchased by the mundkar, the ownership to such area including the structure is not acquired by the mundkar. The fact that the materials of the house in occupation of the mundkar belong to the mundkar is different thing from the ownership of the land and things attached thereto. Article 296 does not come in the picture in such cases 6 nor Section 14 of the Land Revenue Code, as the question of the property vesting in the Government would arise only when it belongs to none. Once the law on the point that mundkarial rights can be acquired only when the land belongs to someone else i.e. batkar being very clear, there is no scope to contend that the moment the mundkar dies without leaving legal representatives and without having purchased the dwelling house, the dwelling house would vest in the Government. Such a situation cannot be visualized under any circumstances in view of the fact that the land on which the dwelling house exists belongs to a private person. It could be another thing if the land does not belong to any private person. 8. In any case the contentions sought to be canvassed on the above point and particularly that on the death of Salvacao, the right in the structure of the dwelling house and/or land beneath it was either acquired by the owner of the land i.e. respondent, or that it stood vested in the Government, or that any status other than which was claimed by the appellant during the lifetime of Salvacao i.e. to be her tenant, were not specifically raised by the appellant, either in the written statement or in the course of recording of evidence. Mere some passing reference made by the courts below in their Judgments, to such aspects, without specific plea being raised, and issued being framed, will not be sufficient to contend that the said issue arises for consideration at the stage of second appeal. In order to 7 enable a party to raise such an issue at the stage of second appeal, it is necessary for the parties to lay proper factual foundation in the pleadings as well as in the course of evidence. Since neither of such things having been done by the appellant, the appellant is not entitled to raise such a point for the first time in the second appeal. Neither the judgment of the trial Court nor that of the appellate Court disclose any issue or point for determination in that regard. 9. Being so, the proposed point of law comprised in clause (b) hereinabove, which is the core issue sought to be raised in the matter, and others being its off­shoot, does not arise for consideration and for the same reason no other point formulated as substantial question of law also arises for consideration in the matter. There being no substantial question of law arising for consideration, there is no scope for interference in the impugned order in exercise of powers under Section 100 of C.P.C. Hence the appeals fail and are hereby dismissed. R.M.S. KHANDEPARKAR, J. sl.