1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.647 OF 2003 1. Shri Prakash H. Tamankar, son of late Hanumant Tamankar, 2. Shri Sandeep H. Tamankar, son of late Hanumant Tamankar, 3. Ms. Chaya Tamankar, daughter of late Hanumant Tamankar, 4. Shri Shekhar Tamankar, daughter of late Hanumant Tamankar, 5. Shri Vishwas Tamankar, son of late Hanumant Tamankar, 6. Shri Kiran Tamankar, son of late Hanumant Tamankar, 7. Smt. Tulshi Hanumant Tamankar, W/o. Late Hanumant, all major of age, residents of Mulga-Waddo, Siolim, Bardez-Goa. …. Petitioners V/s 1. Shri Remegio Victor, 2. Smt. Merlin Victor, Both major of age represented by their duly constituted attorney Miss Violet Reynolds, spinster, resident of Siolim, Bardez-Goa. …. Respondents Mr. J.P. Mulgaonkar, Advocate for the Petitioners. Mr. Sudin M.S. Usgaonkar, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 16 th JUNE, 2010 JUDGMENT : 2 Heard. 2. The petitioners herein are the judgment debtors in execution proceedings bearing no.20/1990/A. In this Writ Petition, they have challenged the order dated 28/02/2003 of the learned Civil Judge Senior Division, Mapusa by which respondent no.2 i.e. original judgment debtor no.2 has been sentenced to civil prison for the period of 30 days. Original judgment debtor no.1 having expired, his legal representatives were brought on record, and, all of them have been ordered to be removed from the suit house. 3. The respondents as plaintiffs had filed the civil suit bearing no.23/89/A in respect of two properties (1) known as “Bhindeche Bhat” surveyed under 54/17 and “Uryecho Poro” surveyed under no.176/1, of Village Siolim. There was a residential house in the second property having house no.743/6 which corresponds to No.1324 and another outhouse bearing no.743/6A. The plaintiffs had alleged that in the year 1983, both the defendants and their children had trespassed into the said house in the absence of their caretaker one Mr. Nagesh Badache and had filed the suit for (i) the eviction of the said defendants from the suit house and the suit property and recovery of its possession; (ii) permanent injunction to restrain the defendants from occupying the structure illegally raised by them in the first property surveyed under 3 no.54/17 and from building, constructing and interfering in any manner with the suit property; and (iii) for mandatory injunction for the removal of the foundation of an illegal structure. 4. The suit came to be decreed in terms of Order 8, Rule 10, CPC on or about 8/09/1989. The execution proceedings having been filed by the plaintiffs/decree holders, the defendants came to be evicted from the suit house on or about 8/10/1990. Thereafter, the judgment debtors on or about 12/10/1990 filed an application purporting it to be an application under Section 47 r/w Section 151 CPC and the same was replied to, by the decree holders, by reply dated 16/10/1990. 5. The decree holders then filed an application under Order 21, Rule 32(1) CPC on 25/05/1992 alleging that by virtue of the decree passed, the defendants were permanently restrained from occupying the structure illegally raised in the property bearing survey no.54/17 and from building, constructing and interfering in any manner with the suit property. The decree holders had further alleged that the possession of the suit house was restored to the decree holders by the bailiff of the Court, under the orders of the Court, evicting the respondents from the suit house and the suit property and vacant possession was delivered to the Decree Holders on 6/10/1990 and inspite of that the judgment debtors had been repeatedly violated the decree of permanent injunction 4 by repeatedly interfering with the suit house and the suit property and had committed trespass in the suit house after their eviction and that they had complained to the police for their removal; and that the judgment debtors had again trespassed into the suit house in August 1991 in utter violation of decree for permanent injunction for which they had lodged an FIR but no action was taken. The decree holders had also alleged that in the month of April of that year, the judgment debtors had trespassed into the suit property surveyed under No.54/17 and had started occupying the structure built thereon inspite of the decree of permanent injunction restraining them from doing so. The decree holders therefore sought for the removal of the judgment debtors from the suit house with directions to the police, and for their detention in civil prison. 6. The case of the judgment debtors was that they had not occupied any structure in the property bearing survey no.54/17 and that they had not disobeyed any order of the injunction of the Court. They denied the allegation that the bailiff had restored the possession of the suit house on 6/10/1990 and further stated that they were residing in the said house as mundkars. The judgment debtors further stated that the injunction was concerning property surveyed under no.54/17 and, as such, they had not disobeyed the order of injunction concerning the said property. The judgment debtors also stated that when they were threatened with 5 dispossession from their mundkarial house they had filed an application for declaration/registration and for injunction before the Mamlatdar of Bardez, but their application was dismissed on 12/08/1991 and against that they had filed an appeal to the Collector which was dismissed on 5/03/1992 and against that they had filed a revision to the Tribunal. It appears that the said revision was dismissed by the Administrative Tribunal by order dated 23/07/1996. A review of the order of the Administrative Tribunal was allowed on 30/06/1997 and the application dated 5/08/1991 filed by the judgment debtors under Section 8-A of the Mundkar Act was directed to be inquired into in accordance with law and the parties were directed to appear before the Mamlatdar on 31/07/1997. The judgment debtors stated that they continued to reside in their mundkarial house and therefore there was no question of they having trespassed into the house of the Decree Holders. The application dated 5/08/1991 was eventually dismissed by the Mamlatdar, for non- prosecution. 7. An inquiry was conducted by the learned Civil Judge into the application of the decree holders in which the decree holders examined their attorney and the judgment debtors examined 8 witnesses. The learned Civil Judge, in the impugned order, has observed that the judgment debtor no.1 Shri Hanumant Toraskar who was examined as RW1 had admitted that he was evicted from the suit house and after 6 about 13 days he has re-entered the same. His wife, the judgment debtor no.2, who was also examined, denied that they were evicted from the house by the bailiff of the Court. The learned Civil Judge came to the conclusion that the judgment debtors had entered the suit house in violation of decree for permanent injunction. Their presence in the house was an act of continuous trespass. The suit house is in the suit property. Interference to the suit house amounted to interference in the suit property and thus the decree holders had proved that the judgment debtors had trespassed into the suit house in violation of the decree dated 8/09/1989. Considering that judgment debtor no.1 had died during the course of the execution proceedings and his legal representatives were brought on record, the learned Civil Judge chose not to sentence them to any civil imprisonment, but only ordered their removal from the suit house, but proceeded to direct judgment debtor no.2 to undergo civil imprisonment for a period of 30 days. 8. The first submission made by Shri Mulgaonkar, the learned Counsel on behalf of the petitioners/judgment debtors is that although the application for declaration filed by the judgment debtors before the Mamlatdar was dismissed for default, an application for restoration of the same was pending. This statement is contested by Shri Usgaonkar, the learned Counsel appearing on behalf of the decree holders by submitting that they were not served with any copy of any such 7 application for restoration. The learned Civil Judge has proceeded on the basis that there was no mundkar case pending between the parties in as much as no material was produced to support the contention that at the time the impugned order was passed, an application for restoration was filed and the same was pending. Even now before this Court, nothing has been produced by the Judgment Debtors to suggest that a restoration application was pending before the Mamlatdar. The learned Civil Judge Senior Division has proceeded on the basis that the application of Judgment Debtors dated 5/08/1991 was dismissed on 26/2/2003 and as on that date (28/2/2003) there was no mundkar case pending. In any event, it may be observed that the Civil Judge had ordered the eviction of the judgment debtor and they were evicted from the suit house and the suit property and therefore there was no question of awaiting for the result of any proceedings instituted under the Mundkar Act, even if they were pending. 9. The next submission of Shri Mulgaonkar, the learned Counsel appearing on behalf of the petitioners/judgment debtors, is that the decree of injunction was only in relation to the property surveyed under no.54/17 and not in relation to survey no.176/1, where the suit house which was claimed as mundkarial house, is situated. Learned Counsel further submits, referring to the provisions of Order 21, Rule 32 that only breach of a decree of injunction could be punished by detention in 8 civil prison. Learned Counsel submits that the decree of eviction in terms of prayer (a) was executed in accordance with Rule 35, of Order 21, CPC. Learned Counsel submits that the decree, violation of which, as it involves freedom of an individual ought to be construed strictly. Learned Counsel submits that there was no prayer for injunction granted as far as the suit house and the suit property surveyed under no.176/1 is concerned. Learned Counsel further submits that there is no finding of the learned Civil Judge to the effect that there has been a breach of the decree of injunction in relation to survey no.176/1. 10. On the other hand, Shri Usgaonkar learned Counsel of the Decree Holders, referring to prayer (ii) of the plaint of the suit (filed by the decree holders) submits that the suit of the plaintiffs was decreed in terms of the said prayer as well and by virtue of the said prayer (ii) the decree holders had sought for a permanent injunction against the defendants/Judgment Debtors from occupying the structure illegally raised in survey no.54/17 and from building, constructing and interfering in any manner with the suit property which expression, according to the learned Counsel, includes both the properties surveyed under Survey Nos.54/17 and 176/1. Shri Usgaonkar further submits that the suit property for which injunction was sought in terms of prayer clause (ii) cannot be restricted only to survey no.54/17 and it has got to be extended to both the properties referred to in para 2 of the plaint. 9 Learned Counsel has also referred to para 19 of the plaint wherein the plaintiffs had avered that judgment debtor no.1 had created a lease in relation to part of the suit house to one Rajendra Dangui, which was not binding on the decree holders and that he too was liable to be evicted from the suit property and the injunction sought was for the suit house as well. In rejoinder, Shri Mulgaonkar submits that it is impermissible to look into averments in the plaint at the stage of execution, for the interpretation of the decree. 11. Be that as it may, there is no dispute that the suit was decreed in terms of the prayers of the plaint as can be seen from the decree of the trial Court, which was passed ex-parte in terms of Order 8, Rule 10 and by which both the defendants/judgment debtors were directed to vacate the suit house and the suit property and hand over the vacant possession to the plaintiffs and they were also permanently restrained from occupying the structure illegally raised in the property bearing survey no.54/17 and from building, constructing and interfering in any manner with the suit property. 12. The learned Civil Judge has proceeded on the basis that the decree of injunction, in terms of prayer (ii) was in relation to both the properties, referred to in para 2 of the plaint, and in that, conclusion cannot be faulted. Although the Judgment Debtors had taken the plea 10 that the injunction granted was concerning only survey no.54/17, such a plea does not appear to have been put forward at the time of arguments before the learned Civil Judge Senior Division. A suggestion to the contrary was denied by the attorney of the Decree Holders. There can be no bar in law, to look at the pleadings in the plaint, to understand the decree in its proper perspective. No decision to the contrary has been brought to my notice and I know of none. A suit commences with the plaint and ends with the decree. The plaint could always be looked into to understand the exact import of the decree. The suit property referred to in prayer clause (ii) therefore can only refer to both the properties mentioned in para 2 of the plaint. There is no reason as to why one or the other of the properties mentioned in para 2 had to be excluded. Therefore, when the Court granted the injunction in terms of prayer (ii) it was granted in respect of both the properties. Moreover, eviction was from the suit house and the suit property. Permanent injunction was also granted for the suit property. Interference with the suit house amounted to interference in the suit property (emphasis supplied). Therefore the conclusion arrived at by the learned Civil Judge Senior Division cannot be faulted. This is not a fit case for interference in certiorari jurisdiction. Writ Petition, therefore, is hereby dismissed, with costs. N.A. BRITTO, J. NH/-