1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.44 OF 2001 1. Shri Ramchandra Arjun Pednekar, 2. Smt. Chaya Ramchandra Pednekar deceased by her legal representatives : 2(b) Shri Arjun Ramchandra Pednekar 2(c) Mrs. Anushree Arjun Pednekar, all residing at Mausawada, Pernem, Goa. 2(d) Smt. Suchita Ajit Amonkar 2(e) Shri Ajit Amonkar, Both residents of Porvorim, Bardez, Goa 2(f) Smt. Vinesha Ramchandra Pednekar nee Colvalkar, 2(g) Shri Tukaram Pednekar/ Colvalkar Both residents of Colvale, Bardez, Goa. ... Appellants/ (Orig. Defendants) V e r s u s 1. Smt. Sushma Pandurang Pednekar, 2. Shri Sudesh Pandurang Pednekar both r/o Mausawaddo, Pernem 3. Ramchandra Shankar Pednekar 4. Shri Uttam Shankar Pednekar, 2 both residing at Mausawaddo, Pernem, Goa (respondent no.4 is deleted by order dt.27.3.2003 ... Respondents Mr. R. V. Kamat, Advocate for the appellants. None for the respondents, though served. CORAM : A. P. LAVANDE, J. DATE : 18 th January, 2011. ORAL JUDGMENT : Heard Mr. Kamat, learned Counsel for the appellants. None appears on behalf of the respondents, though served. 2. By this Second Appeal, the appellants take exception to the judgment and decree dated 27th April, 2001 passed by the Additional District Judge, Mapusa in Regular Civil Appeal No.38/2000 dismissing the appeal preferred against the judgment and decree dated 31st January, 2000 passed by the Civil Judge, Junior Division, Pernem in Regular Civil Suit No.450/1988. 3. Respondent nos.1 and 2 filed the above referred suit against the appellants and respondent no.3 seeking the following reliefs: 3 (a) The defendant nos. 1 and 2 may be ordered to remove the compound wall constructed by them in the suit property no.II. (b) The defendant nos.1 and 2 may also be ordered to fill up the well constructed by them in the suit property no.II. (c) The defendant nos.1 and 2 or any persons claiming through them may be restrained from doing any construction or from causing any obstruction on the suit access way. They may also be restrained from doing any unlawful construction in the suit property no.II. 4. The suit was contested by the defendants. Both the parties led evidence. Upon appreciation of the evidence, oral and documentary, led by the parties, the trial Court decreed the suit. The appeal preferred against the judgment and decree passed by the trial Court has also been dismissed. The appellants have challenged both the judgments and decrees by filing the present Second Appeal. 5. The appeal was admitted on the following substantial questions of law : 4 (i) Whether the Civil Court has jurisdiction to entertain and try the suit by a bhatkar against the mundkar for removal of a compound wall built within the area which the mundkar is statutorily entitled to purchase under Section 15 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 ? 6. Indisputably, the appellants have been declared to be mundkars in respect of the house existing in the property of the plaintiffs / respondent nos.1 and 2. However, the record discloses that the purchase application filed by the appellants herein was dismissed by the Mamlatdar and revision preferred against it was also dismissed by the Administrative Tribunal on the ground that it was not maintainable. 7. This Court passed order keeping the matter pending with a view to enable the appellants to file appeal before the appropriate forum against the order passed by the Mamlatdar dismissing the application for purchase of the mundkarial house. 8. Mr. Kamat, learned Counsel appearing for the 5 appellants submitted that despite his best efforts including sending of Registered Post A.D notice to the appellants, the appellants have not contacted him and as such, he is not in a position to make a statement as to whether the appellants have exercised their right of filing an appeal challenging the order passed by the Mamlatdar before the appropriate forum or not. 9. In view of the statement made by Mr. Kamat, I am not inclined to wait further since the appeal is of the year 2001. 10. Perusal of the record discloses that although the appellants have been declared mundkars, the appellants have not been able to obtain purchase certificate in respect of the house occupied by them from the competent authority. This being the position, in my considered opinion, the judgments and decrees passed by both the Courts below cannot be faulted. Needless to mention that the execution of the decree shall be subject to any order that may be passed in favour of the appellants by the competent authority. In other words, it is made clear that in the event the appellants are able to obtain the certificate of purchase in respect of the mundkarial house and the competent authority holds that the portion in 6 which the compound wall has been constructed, is also a part of the mundkarial house, the decrees passed by both the Courts below to the extent of demolition of compound wall shall be unexecutable. 11. The substantial question of law formulated is answered against the appellants. 12. In view of the above, I do not find any ground to interfere with the judgments and decrees passed by both the Courts below. The appeal stands dismissed with no order as to costs. A. P. LAVANDE, J. SMA 7