TEODOLINDA DIAS MANDOLYversusCONCEICAO BARRETO ( SINCE DEC.) THR LRS

2026:BHC-GOA:1992                                (1)                     wp-665-2023.odt



               Devendra/Niti
                               IN THE HIGH COURT OF BOMBAY AT GOA

                                    WRIT PETITION NO.665 OF 2023

               TEODOLINDA DIAS MANDOLY                             …. Petitioner

                         Versus

               CONCEICAO BARRETO (SINCE DEC.)
               THR LRS. & ORS.                             ….Respondents
                                              …
               Mr. Nigel Da Costa Frias with Ms. Maria Fernandes, Advocates for
               Petitioner.

               Mr. Tarshish Pereira, Advocate for Respondent Nos.1(a) to 1(f).
                                                  …

                                              CORAM : S. G. CHAPALGAONKAR, J.

                                              DATED : 28th SEPTEMBER, 2026.

               FINAL ORDER:-

               1.      The petitioner impugns order dated 28.08.2023 passed by

               Administrative Tribunal, Goa in Mundkar Revision Application

               No.37/2021, thereby upholding order dated 28.09.2021 passed by Deputy

               Collector       in   Case   bearing     No.SDO/SAL/MUND/APPL/14/2019,

               whereby Appeal filed by petitioner against judgment and order dated

               30.04.2015 and order dated 23.09.2019 passed by Joint Mamlatdar-III,

               Salcete in Case No.JM-III/MUND-PUR/02/2008 has been dismissed.


               2.      The petitioner contends that late Felix Antonio Jose Dias Mandoly

               and Rosa Antonia Marca Diniz were her parents. The petitioner has four

               siblings. Her property known as Dias Vaddo Dhakti Bhati bearing Survey

               No.124/7 of village Cavelossim admeasuring 450 sq. meters was owned
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by her father and uncle Dr. Antonio Dias Mandoly. They sold a part of

property to one Mr. Nelson Felix Jacques vide registered sale deed dated

16.01.1979. The portion sold to Nelson Felix Jacques was partitioned

from Survey No.124/7 and independently allotted Survey No.124/19.


3.    Mr. Nelson Felix Jacques instituted Civil Suit No.13/1981 before

Civil Judge Junior Division at Margao against original respondent Mrs.

Conciecao Barreto alleging interference and disturbance in his possession

and going on possession undertaken by him. In that suit Conciecao

Barreto/original respondent filed written statement raising mundkarial

right. In deference to pleadings, Civil Court framed issues as to:

      “whether respondent herein proves that she is mundkar of
      property in Survey No.124/7 owned by petitioner’s parents and
      whether she is having her residential house in suit property”.

4.    Issue was referred to Mamlatdar for adjudication under Section 32

of Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975

and Rules 1977 (Act of 1975, for short).


5.    In proceeding before Mamlatdar, original owners of Survey

No.124/7 i.e. Felix Dias Mandoly or Dr. Antonia Dias Mandoly were not

made party. Further Nelson (original plaintiff) was shown as dead and by

order dated 11.02.2001 petitioner and others were brought on record as

legal heirs of Nelson. They were shown to be served by substitute service

by paper publication in newspaper dated 28.02.2003. Accordingly, Joint

Mamlatdar-III vide order dated 08.08.2008 passed in Case No.JM-
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III/MUND/REG/8/99, positively answered Issue as referred by Civil

Court. Eventually, declared respondent Conciecao Barreto as Mundkar

of property.


6.    Taking foundation from aforesaid order, respondents i.e. legal heirs

of Conciecao Barreto initiated proceeding under Section 16 of Act of

1975 for purchase of mundkarial area of 300 sq. meters situated in Survey

No.124/7 at village Cavelossim. Pertinently, in said proceeding also

petitioner was shown as legal heirs of Nelson Felix (who was alive),

whereas original owners were not added as party. Mr. Nelson Felix

Jacques appeared in proceeding and submitted his reply that he is

unconcerned with property in question and also do not know any person

namely Nelson Felix Jacques (opponent no.1 shown therein). Eventually,

respondent i.e. legal heirs of Smt. Conciecao Barreto filed application to

correct name of opponent no.1 and replaced it by name of petitioner’s

father as opponent, which was allowed by order dated 30.04.2015. From

title clause of order passed by Mamlatdar, such replacement is not

discernible.


7.    Pertinently, Felix Dias Mandoly i.e. petitioner’s father had already

expired on 23.07.1998. By final order dated 23.09.2019, respondents’

application was allowed permitting them to purchase mundkarial area of

300 sq. meters out of Survey No.124/7 and pay purchase price of

Rs.4050/- within period of six months from date of order.
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8.    The         petitioner     filed     Appeal       vide              Case

No.SDO/SAL/MUND/APPL/14/2019 under Section 24 of Act of 1975

raising challenge to order dated 23.09.2019 passed by Mamlatdar

allowing respondent to purchase mundkarial area from Survey No.124/7,

which came to be dismissed, thereby upholding orders dated 30.04.2015

and 23.09.2019.


9.    Aggrieved petitioner filed Mundkar Revision Application

No.37/2021 before Administrative Tribunal at Goa, which came to be

dismissed vide order dated 28.08.2023.


10.   Mr. Frias, learned Advocate appearing for petitioner submits that

there is no contest on point that land Survey No.124/7 of village

Cavelossim was owned by petitioner’s father late Felix Antonio Jose Dias

Mandoly and his brother Dr. Antonio Dias Mandoly. Both of them were

not party to Civil Suit bearing No.13/1981, wherein issue about

mundkarial rights of Smt. Conciecao Barreto over Survey No.124/7 was

framed and referred under Section 32 of Act of 1975 to Mamlatdar for

adjudication. In Reference Proceeding before Mamlatdar they were not

added as party and issues referred were decided behind their back. Even

in subsequent proceeding under Section 16 of Act of 1975, whereby

purchase right were declared in favour of respondents, they were not

added as party and ultimately, declaration was granted. In absence of

original owner being party to proceeding before Mamlatdar, decision on
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issue as to mundkarial right or declaration of purchase right is invalid in

law. The Appellate as well as Revisional Authority failed to appreciate

aforesaid aspects of matter and rejected challenge raised by petitioner in

Appeal or Revision.


11.   Per contra, Mr. Tarshish Pereira, learned Advocate appearing for

respondent no.1 supports impugned order contending that petitioner was

brought on record as legal heir of Nelson Felix Jacques before Mamlatdar.

She was served with notice of proceeding. However, failed to cause

appearance. Now she cannot be permitted to raise plea regarding non-

joinder of party.


12.   Having considered submissions advanced by learned Advocates

appearing for respective parties, it can be observed that admittedly land

bearing Survey No.124/7 situated at village Cavelossim was originally

owned by petitioner’s father and uncle.        The deceased respondent

Conciecao Barreto while defending suit filed by Mr. Nelson Felix

Jacques, took plea of her mundkarial rights over land Survey No.124/7.

In that view of matter, Civil Court was pleased to frame an issue as to

whether Smt. Conciecao Barretto is Mundkar of property in Survey

No.124/7 belonging to Felix Dias Mandoly and Antonio Dias Mandoly

i.e. Petitioner’s father and uncle. The issue was referred to Mamlatdar in

terms of Section 32 of Act of 1975. The proceeding was registered as

Case No. JM-III/MUND/REG/8/99 before Joint Mamlatdar-III of Salcete
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at Margao between Smt. Conciecao Barreto and Nelson Felix and parties

to suit. After registration of said proceeding, Mr. Nelson Felix Jacques/

respondent no.1 before Mamlatdar was shown as dead and name of

petitioner and others were brought on record as legal heirs of Nelson. On

28.02.2003 notices were shown to be served upon them by way of

newspaper publication and ultimately issues referred were decided in

favour of Smt. Conciecao Barreto holding that she is mundkar on Survey

No.124/7 owned by petitioner’s father and uncle.



13.   Undisputedly, petitioner’s father and uncle/Bhatkars were never

made party to proceedings in suit or in reference of issue made under

Section 32 of the Act of 1975. Petitioner’s name was brought on record

as legal heir of Nelson Felix Jacques, who was alive and unconcerned

with Survey No.124/7. Apparently, by an ex-parte order dated

08.08.2008, Mamlatdar recorded the finding on issue declaring Smt.

Conceicao Barreto as Mundkar over Survey No.124/7 owned by

Petitioner’s father and uncle.


14.   In this backdrop, the declaration made under Section 8-A by

Mamlatdar would be inconsequential or ineffective. Eventually, the

decision on issue nos.5 and 6 referred by the Civil Court would be

inconsequential so far as petitioner’s right is concerned.
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15.   The record indicates that, taking foundation of Mamlatdar’s order

dated 08.08.2008 passed in Case No. JM-III/MUND/REG/8/99, thereby

declaring Smt. Conceicao Barreto as mundkar, her legal heirs initiated

proceedings under Section 16 of the Act of 1975 before Mamlatdar-III,

Salcete in Case No.JM-III/MUND-PUR/02/2008. The title clause of the

proceeding would show that again Mr. Nelson Felix Jacques was shown

as the Respondent, and Petitioner and others were shown as his legal

heirs. However, during pendency of the proceedings an application was

moved to replace his name by name of Petitioner’s father and uncle.

There is nothing on record to show that Petitioner and others were served

with the notice of proceeding in capacity of legal heirs of Mr. Felix

Antonio Jose Dias Mandoly and Mrs. Rosa Antonio Mandoly

Diniz/mundkars.


16.   Sub-Rule (13) of Rule 14 of Goa, Daman and Diu Mundkars

(Protection from Eviction) Act, 1977 prescribes the procedure to be

adopted in case of death of any party if case is pending. Clause (a) of

sub-rule 13 prescribes that the application is required to be made within

a period of one month of death of any party and the Mamlatdar shall

record finding as to the legal representatives of the deceased party and

then enter on record the name of such representatives. Sub-Rule (14)

prescribes that once Mamlatdar orders the name of any person to be added

as the opponent or enters on record the name of any person as legal
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representative of deceased party, he shall issue such person a notice as

provided under sub-rule (7) and trial shall proceed on date fixed in such

notice.


17.   In present case, although the name of Nelson Felix Jacques was

replaced by the name of Petitioner’s father, title clause does not disclose

such replacement or it cannot be gathered that Petitioner’s name was

incorporated as legal heir of original Bhatkars. In absence of Bhatkars or

their legal heirs as parties in a proceeding under Section 16 of the Act of

1975, the rights of Mundkar to purchase the property cannot be decided.

Sections 21 and 27 of the Act of 1975 show that all the inquiries and

proceedings before Mamlatdar are deemed to be judicial proceedings and

the Mamlatdar is required to exercise the powers under Code of Civil

Procedure, 1908 as exercised by the Civil Court.         It was therefore

obligatory on the part of Mamlatdar to conduct the inquiry with due

regard to the provisions of Civil Procedure Code and the relevant Rules

of 1977 framed under Goa, Daman and Diu Mundkars (Protection from

Eviction) Act, 1975.


18.   The perusal of the order passed by the Appellate as well as

Revisional Authority shows that the challenge raised by Petitioner to the

order of Mamlatdar is rejected solely on the ground that Petitioner was

shown as a party in the proceeding and she was given notice. However,

fact remains that she was shown as legal heir of Nelson Felix Jacques and
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not represented Bhatkars in relation to the land under Survey No.124/7

of which Respondents were seeking mundkarial right. The proceeding

for declaration under Section 16 requires adjudication between the

Mundkar and the Bhatkar. The declaration of the purchase right cannot

be made in absence of the Bhatkar as a party to the proceedings.

Undisputedly, the proceeding under Section 16 was initiated in the year

2008, without addition of Bhatkars as parties. The name of the Petitioner

appeared as legal heir of Nelson Felix Jacques. Petitioner has specifically

raised a plea of fraud in seeking declaration under Section 8-A. On

30.04.2015, the order regarding replacement of name of Nelson Felix

Jacques was passed and name of Felix Dias Mandoly/Petitioner’s father

was brought on record. Petitioner was never served notice independently

as legal heir of Felix Dias Mandoly.


19.   In this backdrop, the reasoning adopted by both the Authorities that

the Petitioner was served with the notice of the proceedings and she did

not object to the inclusion of her name as legal representative of Nelson

Felix Jacques, cannot be countenanced to hold that it disentitles her from

raising objection to declaration. In result, orders impugned are liable to

be quashed and set aside. Needless to state here, Respondents’ right to

prosecute claim for declaration under Section 16 by filing fresh

proceeding in accordance with law is kept open.
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                                 20.   Hence, Writ Petition succeeds and is allowed in terms of prayer

                                 clause (a), which reads as under:


                                        “(a) For a writ of certiorari calling for the records and
                                        proceedings of Mundkar Revision Application No.37/2021
                                        on the file of learned Tribunal, case bearing
                                        no.SDO/SAL/MUND/APPL/14/2019 on the file of Deputy
                                        Collector and case no.JM-III/MUND-PUR/2/2008 & case
                                        no.JM-III/MUND/REG/8/1999 on the file of the
                                        Mamlatdar and upon perusing the legality and propriety
                                        of the Impugned Order dated 28.08.2023 passed by the
                                        learned Tribunal in Mundkar Revision Application
                                        No.37/2021, be pleased to quash and set aside the
                                        Impugned Order and consequently set aside the order
                                        dated 28/09/2021 passed by the Deputy Collector in case
                                        bearing No.SDO/SAL/MUND/APPL/14/2019 and quash
                                        and set aside the judgment and order dated 30/04/2015
                                        passed by the Mamlatdar in case no.JM-III/MUND-
                                        PUR/02/2008.”

                                 21.   Needless to state here that Respondent Nos.1(a) to 1(f) shall be at

                                 liberty to initiate fresh proceeding seeking declaration under Section 16

                                 in accordance with law.



                                                                         S. G. CHAPALGAONKAR




Signed by: NITI K HALDANKAR
Designation: Private Secretary
Date: 08/10/2026 14:33:31