JACINTA DE SILVA versus ROSARINHO COSTA & ORS.

Citation: [2014] 4 S.C.R. 105 · Decided: 25-03-2014 · Supreme Court of India · Bench: GYAN SUDHA MISRA · Disposal: Dismissed

Judgment (excerpt)

[2014] 4 S.C.R. 105 
JACINTA DE SILVA 
v. 
ROSARINHO COSTA & ORS. 
(Civil Appeal No. 4002 of 2014) 
MARCH 25, 2014 
[GYAN SUDHA MISRA AND 
PINAKI CHANDRA GHOSE, JJ.) 
105 
A 
B 
Code of Civil Procedure, 1908: Suit for eviction filed 
before the Mamlatdar on the ground that defendant no. 2 was 
C 
in illegal occupation of the house owned by plaintiffs-
respondent no. 1 and 2 - Said suit dismissed for default - Fresh 
suit filed by respondent no. 1 and 2 for declaration that they 
are owners of the house - Decreed - Execution proceedings -
Heirs of judgment debtor objected to the ex~cution D 
proceedings - Executing court rejected execution application 
holding that trial court had no jurisdiction to try the suit - High 
Court set aside the said order and also rejected the argument 
that the .suit was barred by res judicata as the case filed before 
the Mamlatdar by respondent no. 1 and 2 was dismissed -
E 
Held: High Court duly took note of the fact that no plea with 
regard to the jurisdiction of the civil court was taken by 
defendant No. 1 in the written statement - On the contrary, it 
was the specific case of defendant No. 1 that the said house 
was not a mundkarial house and was not the plaintiffs' property 
F 
- High Court duly noticed that the trial court while deciding the 
issues framed, duly considered the facts which were incidental 
thereto - High Court held that the issues tried by trial court 
cannot be said to be within the jurisdiction of the authorities 
under the Mundkar Act - High Court further held that the /is 
G 
was with regard to the ownership of the suit house since 
defendant No. 1 could not pursue her claim for ownership of 
any mundkarial rights - In these circumstances, High Court 
correctly held that the trial court had jurisdiction to entertain 
105 
H 
106 
SUPREME COURT REPORTS 
[2014] 4 S.C.R. 
A the suit - There was no question of application of the principle 
of res judicata in the given facts - Trial court passed the said 
decree rightly and it cannot be said to be lacking inherent 
jurisdiction to do so - Res judicata. 
8 
The plaintiffs-respondents no. 1 and 2 claimed to be 
the owner of the property which comprised of mundkarial 
house. They filed suit for eviction in the court of 
Mamlatdar against the original defendant no. 2 on the 
ground that the suit property was in occupation of 
C original defendant no. 1 after death of her husband and 
she had ceased to occupy the suit property and the suit 
house was in illegal occupation of original defendant no. 
2. The original defendant no. 1 challenged the jurisdiction 
of the Mamlatdar to try the matter on the ground that her 
husband was the owner of the house. The said 
D proceedings before the Mamlatdar were dismissed for 
default and the rights of the parties remained to be 
adjudicated. Respondent no. 1 and 2 then filed a suit 
against original defendant no. 1 and 2 for declaration that 
they were own~rs of the suit house and for eviction of 
E defendant no. 2 and possession of suit house. The suit 
was decreed in favour of respondent no. 1 and 2 
declaring them to be owners of the suit house and further 
ordering eviction of defendant no. 2. No appeal was filed 
against the eviction decree and the decree became final. 
F An execution application was instituted seeking eviction 
of defendant No.2 from the suit house. The heirs of 
defendant No.1 comprising the appellant objected to the 
said proceedings contending that the suit was 
misconceived and the decree passed by the civil court 
G was a nullity. The executing court after considering such 
objection of the judgment-debtor rejected the said 
execution application. The High Court held that the 
objections which were filed before the executing court by 
the judgment-debtor, was nothing but an attempt to stall 
H and defeat the execution proceedings and further held 
JACINTA DE SILVA v: ROSARINHO COSTA & ORS. 107 
that the said mundkarial house was occupied by 
A 
· defendant No.2 without the consent and/or permission of 
the respondent Nos. 1 and 2. The High Court also rejected 
the argument on behalf of defendant no.1 that since the 
suit was not maintainable as the case filed before the 
Mamlatdar by respondent no.1 and 2 was dismissed, 
B 
therefore, the suit was barred by res judicata. The instant 
appeal was filed challenging the order of the High Court. 
Dismissing the api;>eal, the Court 
HELD: 1. The High Court duly took note of the fact C 
that no plea with reg

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