Referring to the said observations by the Supreme Court the learned Advocate submitted that in view of the provisions contained in section 18-A, the respondent is the deemed purchaser with effect from the Tillers' Day and therefore, there is no occasion for the respondent to file any application under section 8-A of the said Act which empowers the Mamlatdar to entertain any application by the tenant in possession of any land. Moreover, the fact remains that the case claiming tenancy right filed by the respondent, being Tenancy Case No. 3 of 1989, is still pending before the competent authority and there has been no declaration by the competent authority regarding the alleged tenancy rights of the respondent. The status of the respondent as a tenant being disputed and yet to be decided by the competent authority, the question of presuming the respondent to be the deemed purchaser in terms of section 18-A of the said Act does not arise at all. That apart, considering the pleadings in the plaint, as already observed above, there is no case pleaded of a deemed purchaser in favour of the respondent in relation to the suit property. The question as to whether a person is deemed purchaser or not is not a pure question of law but a mixed question of fact and law. Unless the said plea is specifically raised in the pleadings, the question of considering the point in relation to the applicability of section 18-A does not arise at all.
Shri Jose Maria Florence Xavier Cassiano Luis alias Jose Luis Vaz, since deceased, by his legal representatives & another Vs. Shri Vassudeo Budhu Morajkar
Court : Mumbai
Reported in : 1999(3)ALLMR85; 1999(4)BomCR528; 1999(3)MhLj10
Judge : R.M.S. Khandeparkar, J.
Decided On : Jan-29-1999
1. This is a revision application against order dated 7th August 1997 passed in Miscellaneous Civil Application No. 165 of 1992 by the Additional District Judge at Mapusa dismissing the appeal filed by the petitioners who are the defendants in Regular Civil Suit No. 147 of 1990. The said appeal was preferred by the petitioners in the lower Appellate Court against the order dated 31st August 1992 which was passed in Civil Miscellaneous Application No. 232/90 in the said suit by the Civil Judge, Senior Division at Bicholim. By the impugned order the said appeal was dismissed by the lower Appellate Court. The trial Court by the said order dated 31st October 1992 had allowed the application filed by the respondent for temporary injunction against the petitioners.
2. Shri U.S. Kolwalkar, learned Advocate appearing for the petitioners, while assailing the impugned order, submitted that the respondent had approached the Civil Court with a specific plea that the respondent is the tenant of the original petitioner No. 1 and that there were attempts to dispossess the respondent by the petitioners and hence he had prayed for injunctive relief in temporary form. Drawing my attention to the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter called as 'the said Act') and the decision of the learned Single Judge of this Court in the matter of Jaya Deshprabhu and others v. Surendra Dessai, reported in 1995 (2) G.L.T. 305, the learned advocate submitted that both the courtsbelow ought to have considered that in view of the specific plea raised by the petitioners regarding the lack of jurisdiction, and considering the pleadings of the respondent in the plaint, the Civil Court had no jurisdiction to entertain the matter and on that count alone, the application for temporary injunction ought to have been dismissed. As against this, Smt. Agni, learned advocate appearing for the respondent, submitted that in the facts and circumstances of the case and considering the pleadings of the respondent, the judgment of the learned Single Judge in the matter of Jaya Deshprabhu and others v. Surendra Dessai (supra), is not applicable. Besides considering the provisions of the said Act and in view of the pleadings of the respondent, there is no occasion for the respondent to move to the Mamlatdar under section 8-A of the said Act. In view of section 18-A of the said Act, the respondent is deemed purchaser of the suit property and that the Mamlatdar has no jurisdiction to entertain any application by a deemed purchaser for injunction under section 8-A of the said Act. According to the learned advocate, the application under the said provision would lie only by a tenant against his landlord. She further placed reliance upon the judgment of the Apex Court in the matter of Ram Ram Narain Medhi v. State of Bombay, reported in : AIR1959SC459 and submitted that in view of the said provision contained in the said Act, the tenant becomes deemed purchaser on the tillers' day and secondly, ownership rights in the property vest in the person who becomes deemed purchaser in terms of the provisions of the said Act from the said tillers' day.3. It is an undisputed fact that the respondent has filed Regular Civil Suit No. 147 of 1990 claiming to be the tenant of the suit property and that there is an attempt by the petitioners to dispossess him from the suit property. The material averments in that regard are to be found in paras 9, 12 and 13 of the plaint. It has been stated in para 9 of the plaint that:
'The defendant No. 2 who alleged to be the agent of the defendant No. 1 forcibly plucked some coconut trees situated in part 'C' of the suit property. Apprehending further mischief by the defendant No. 2, the plaintiff filed an application before the Mamlatdar of Bicholim for an order directing the defendants to refrain from dispossessing this plaintiff. This application is a tenancy case bearing No. 3/1989.'
Thereafter, in para 12 it has been stated that the respondent had approached the Mamlatdar with a specific case that the respondent is tenant of the suit property and being so, his possession as the tenant should be protected. Further, in para 13 of the plaint it has been stated that the respondent has approached the Civil Court mainly on the admitted fact of the respondent's possession over the suit property by the petitioners and seeks assistance of the Court for protecting the same and that this stand has been taken by the respondent without prejudice to his case that he is the tenant in possession of the suit property. It is also an admitted fact that in the said tenancy proceedings, the Mamlatdar had rejected the application for temporary injunction filed by the respondent against the petitioners and thereafter, in an appeal filed before the Additional Deputy Collector, Mapusa, the appellate authority had granted the relief only in relation to cashew and arecanut trees. An attempt to get the said order modified and being made applicable to the entire property by the respondent by filing revision before the Administrative Tribunal proved futile. The matter thereafter came up before this Court in Writ Petition No. 353/96 which was disposed of by judgment and order dated 9th January 1997 wherein the learned Single Judge of this Court clearly held that the Administrative Tribunal found that it was an admitted position that the coconut trees were in possession of the petitioners insofar as the Survey No. 10/1 is concerned and that in the facts and circumstances of the case, the Tribunal had confirmed the relief granted by the Additional Deputy Collector in relation to the trees and not grovewise. The learned Single Judge has clearly observed further that he did not find any infirmity in the said finding of the Administrative Tribunal which was based on the record placed before the Tribunal.
4. The pleadings by the respondent, therefore, clearly disclose that the plea of the respondent before the lower Court was that he is the tenant in respect of the suit property and the petitioners being the landlords, are trying to evict him from the suit property. The learned Single Judge of this Court in Jaya Deshprabhu and others v. Surendra Dessai (supra), has clearly held that once a party approaches the Civil Court claiming to be a tenant of the defendant in respect of a property which is an agricultural land within the meaning of the said expression under the said Act, the Civil Court lacks jurisdiction to entertain any such such suit or to grant any relief in such suit. As already seen above, in the pleadings of the respondent, it has been categorically stated that the respondent is the tenant in respect of the suit property and the petitioners being the landlords are trying to interfere in their possession. Being so, it is evident from the records that the Civil Court could not have entertained the suit and could not have granted any interim relief in the manner it has been granted in favour of the respondent, considering the plea of tenancy by the respondent.
5. The contention of the learned advocate for the respondent that since the respondent is the deemed purchaser with effect from the Tillers' Day, there is no question of invoking the powers under section 8-A of the said Act, is devoid of substance in the facts and circumstances of this case. Once the pleadings do not disclose the fact that the respondent/plaintiff is either undisputedly tenant or has already been declared as the tenant by the competent authority under the said Act, the question of presuming the respondent/ plaintiff to be deemed purchaser in respect of the said property does not arise. In that context, the decision of the Apex Court relied upon by the learned advocate for the petitioners is of no assistance. The Apex Court therein was dealing with a matter wherein the virus of the Bombay Tenancy and Agricultural Lands (Amendment) Act (13 of 1956) as well as Bombay Tenancy and Agricultural Lands Act, 1948 67 Bom. 1948 was under challenge and while interpreting the provisions contained in Article 31-A observed that:-
'An extinguishment or modification of any rights in 'estates' is a distinct concept altogether and cannot be in the process of acquisition by the State of any 'estate' or of any rights therein. The words 'extinguishment or modification of any such rights' must be understood in their plain grammatical sense. It is not correct to say that the extinguishment or modification of any such rights should only be in the process of the acquisition by the State of any estate or of any rights therein. Under the Act there is no suspension of the title of the landlord at all. The title of the landlord to the land passes immediately to the tenant on the tiller's day and there is a completed purchase or sale thereof as between the landlord and the tenant. The title to the land which was vested originally in the landlord passes to the tenant on the tiller's day or the alternative period prescribed in that behalf. This title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or committing default in payment of the price thereof as determined by the Tribunal. The tenant gets a vested interest in the land defeasible only in either of those cases and it cannot therefore be said that the title of landlord to the land is suspended for any period definite or indefinite.'
Referring to the said observations by the Supreme Court the learned Advocate submitted that in view of the provisions contained in section 18-A, the respondent is the deemed purchaser with effect from the Tillers' Day and therefore, there is no occasion for the respondent to file any application under section 8-A of the said Act which empowers the Mamlatdar to entertain any application by the tenant in possession of any land. Moreover, the fact remains that the case claiming tenancy right filed by the respondent, being Tenancy Case No. 3 of 1989, is still pending before the competent authority and there has been no declaration by the competent authority regarding the alleged tenancy rights of the respondent. The status of the respondent as a tenant being disputed and yet to be decided by the competent authority, the question of presuming the respondent to be the deemed purchaser in terms of section 18-A of the said Act does not arise at all. That apart, considering the pleadings in the plaint, as already observed above, there is no case pleaded of a deemed purchaser in favour of the respondent in relation to the suit property. The question as to whether a person is deemed purchaser or not is not a pure question of law but a mixed question of fact and law. Unless the said plea is specifically raised in the pleadings, the question of considering the point in relation to the applicability of section 18-A does not arise at all. Considering the facts of this case, it is abundantly clear that the plea of the respondent in the suit being that of tenancy in respect of the suit property which is stated to be an agricultural land, applying the ratio of the decision in the matter of Jaya Deshprabhu and others v. Surendra Dessai (supra), it is to be held that the application for temporary injunction could not have been granted by the trial Court and for the same reason could not have been confirmed by the lower Appellate Court.
6. In the result, therefore, the writ petition succeeds. The impugned orders are hereby set aside. The application filed by the respondent for temporary injunction in the trial Court is dismissed. The respondent to pay costs of Rs. 1,000- to the petitioners.
No comments:
Post a Comment