Smt. Kamal Parwar Vs. Mr. Timotio Fernandes and Village Panchayat of Merces Through Its Sarpanch Gaunchebhat - Court Judgment

Excerpt:
- indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. f.m. reis, j.1. rule, returnable forthwith. heard by consent of the parties.2. the present petition challenges the order passed by the learned district judge-ii, panaji in miscellaneous civil appeal no. 138/2008 whereby the appeal preferred by the respondent no. 1, was allowed. the learned district judge has passed impugned order essentially on the ground that the rights of the petitioner, have not yet been crystallized before the authorities under the mundkar act, where the applications for declaration of their rights of mundkarship are pending. the learned judge came to the conclusion that the petitioner was not entitled for any relief of injunction against the respondents unless and until the area of the dwelling house as claimed by the petitioners, has not been demarcated under the provisions of the mundkar act. the learned district judge has further held that in any event, no prejudice would cause to the petitioner as the distance from the proposed new construction carried out by the respondent no. 1, is at a distance of 8.5 metres from the outer wall of the house occupied by the petitioner. on these grounds, the appeal came to be allowed and the application filed by the petitioner for temporary injunction was dismissed. the learned counsel for the petitioner, urged before me that the learned district judge had erred in passing the impugned order as according to him, there was no necessity for the rights to be crystallized under the mundkar act as the relief sought by the petitioner was not to dispossess him otherwise than by due process of law as far as the disputed area is concerned.3. the learned counsel for the respondent no. 1 on the other hand, contended that there is no infirmity of any kind committed by the learned district judge while passing the impugned order.4. having heard the learned counsel, i find that there is no jurisdictional error committed by the learned district judge while passing the impugned order and no findings given by the learned district judge can be considered to be perverse on the face of the documentary evidence produced by the parties. apart from that, the contention of the learned counsel for the petitioner that the relief was not to dispossess him otherwise than by due process of law, cannot be accepted as on the perusal of the plaint, there is nothing to suggest any act of possession was disclosed by the petitioner to claim any possession as far as disputed area is concerned. as such i find that the order passed by the learned district judge need not be interfered. nevertheless any construction done by the respondent no. 1 shall be subject to the result of the suit which is pending before the learned civil judge, j.d., panaji. the learned counsel for the respondent no. 1 has further stated that in case he attempts to do any further new construction in future, he shall do so by obtaining permission from the statutory authority in accordance with law. he also states that the respondent no. 1 shall not claim any equities for having put up the construction in the disputed area. the statement is accepted.5. in view of the above, the writ petition is dismissed. all the issues raised in the suit between the parties, are left open and it is made clear that the observations made while disposing of the application of temporary injunction, are as such prima facie findings and shall not influence the court while disposing of the matter on merits. all the contentions raised by both the parties are left open. rule is discharged.