1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 142 OF 2009 1. Smt. Sitabai Shantaram Talawnekar, major of age; housewife, 2. Miss. Sunita S. Talawnekar, 3. Miss. Kalpana S. Talawnekar, 4. Shri Vidhyadhar S. Talawnekar; 5. Miss Anita S. Talawnekar, All residing at Tirthabag, Mayem, Bicholim-Goa .. Petitioners Versus 1. Custodian of Evacuee Property, with office near the Custom House, Panaji-Goa-403 001. 2. Vasudev A. Talaunekar, major of age, married, agriculturist, residing at Tirthabag, Mayem, Bicholim-Goa. .. Respondents. Mr. M. B. D'Costa, Senior Advocate with Mr. D. J. Pangam, Advocate for the petitioners. Mr. S. R. Rivonkar, Government Advocate for the respondent No.1. Mrs. A. Agni, Advocate for the respondent No.2. 2 CORAM :- SMT. R. S. DALVI, J. DATE OF RESERVING THE JUDGMENT : 30 th April, 2009. DATE OF PRONOUNCING THE JUDGMENT : 8 th May , 2009 . JUDGMENT : Rule, returnable forthwith. Heard by consent. 2. The orders which are challenged in this writ petition are the order of the Mamlatdar, Bicholim, Goa dated 30th August, 2002, the order of the Deputy Collector, Bicholim, Goa dated 8.1.2003 and the order of the Administrative Tribunal, Panaji, Goa dated 30.12.2008, the exhibits g, h and i to the petition. These orders are passed upon the application made to the Mamlatdar's Court by the respondent No.2 herein (Vasudev) under Sections 7 and 8A of the Goa, Daman and Diu Agricultural Tenancy Act,1963 read with Section 56 of the Amended Custodian of Evacuee Property Act. The predecessor-in-title of the petitioners herein, who was a relative of Vasudev (one Shantaram), claimed to be the tenant under the aforesaid Acts and claims to have been treated as such. The main lis is between these 3 parties. They shall be referred by their respective names. 3. The dispute between Shantaram and Vasudev commenced at least from 1984. Shantaram filed a suit in the Court of Civil Judge, S.D., Bicholim restraining Vasudev as well as 2 others, who have since not contested the claim, from interfering with the property in that suit claimed by Shantaram. Civil Miscellaneous Application taken by Shantaram being C.M.A. No.155/1984 came to be granted. The properties claimed by Shantaram were Survey Nos. 113, 114 and 116. Shantaram relied upon form No.I and XIV in respect of those properties which showed the name of the custodian in the occupation column. He claimed to pay rent to the custodian of evacuee property. He relied upon notice issued by the custodian dated 9.7.1982, 27.7.82 and letters dated 10.6.76 and 25.1.77. The Court saw that there was a house of Vasudev also in the suit properties. Upon the documents of Shantaram the ex-parte injunction granted in the suit was confirmed restraining Vasudev from interfering in the suit properties. Vasudev was allowed entry and exist to his houses in the suit properties. It appears that Vasudev interfered with Shantaram's possession. Shantaram was given police protection. 4 4. Vasudev filed another suit in the Court of Civil Judge, S.D., Bicholim being suit No.60 of 1990 five years after the injunction order was granted and when, it was in force. He obtained an ex-parte ad interim injunction against Shantaram in respect of inter alia Survey No.114 and 116. Shantaram took out an application for vacating the injunction. That was heard along with Vasudev's application for confirmation of injunction. Vasudev claimed injunction inter alia in respect of Survey Nos. 114 and 116. It was seen by the Court that Vasudev could not enter upon or interfere with Shantaram's possession in Survey Nos. 114 and 116 and hence he could not have obtained the order of ex-parte injunction. Shantaram alleged oral compromise between the parties under which he claimed to be in possession of the property claimed by him in his suit. The learned Judge observed that that fact was not mentioned in the written statement of Vasudev filed in Shantaram's earlier suit. Shantaram contended that there could have been no transaction of settlement between the parties without the consent of the custodian of evacuee property or without his knowledge. The compromise alleged by Vasudev was held to be an afterthought. Vasudev was held to have suppressed material facts, misrepresented them and introduced the new 5 fact of compromise in his subsequent suit and claimed 1/4th share in the suit property. Vasudev claimed that he paid rent to Shantaram to be paid to the custodian of evacuee property. Strictures were passed against Vasudev. He was held to have come to Court with uncleaned hands and to have committed contempt of Court. The ex-parte ad interim order of injunction granted to him came to be vacated and show cause notice was issued to him to show cause why action should not be taken against him for having committed contempt of that Court. 5. That application came to be heard in Vasudev's suit. The plea of settlement/compromise was rejected. It was observed that Vasudev admitted possession and enjoyment in the properties for which he was injuncted which were part of the properties in Shantaram's suit being Survey Nos. 114 and 116. It was observed that ad interim injunction granted to Shantaram was confirmed and that by playing fraud upon the Court Vasudev had obtained equitable reliefs. Consequently, Vasudev's suit was dismissed and his defence in Shantarams suit was struck off. 6. Thereafter, Vasudev filed an application under 6 which the impugned order has been passed by the Mamlatdar. The application claimed tenancy rights in Survey No.114 and 116. Vasudev stated that the property belongs to one Dr. Jose Joaquim De Noronha. It was declared evacuee property. It had come in management of one Krishna Parab. Krishna Parab rented it to Shantaram. Vasudev paid rent to Krishna Parab for 3 years. Thereafter, custodian of evacuee property appointed one Chaugule, but Vasudev continued as a tenant in possession. Vasudev also claimed tenancy rights of property surveyed under Survey Nos. 115/1 and 115/3. These were not the properties claimed by Shantaram. Vasudev claimed that half the property under Survey No.114 was in his possession as a tenant and the other half was in possession of one Yashwant Karbotkar. He claimed that he paid rent to Shantaram to be paid to the custodian. Shantaram claimed to be in possession independent of Vasudev. His claim was essentially based upon the fact that Vasudev was injuncted from interfering with his possession since 1985. Hence, he could not have been in possession of any part of the property claimed by Vasudev. 7. It must be borne in mind that the properties claimed by Shantaram were under Survey Nos. 113, 114 and 7 116. Vasudev has never claimed survey No.113. Vasudev claimed survey No.114 and 116 in his suit filed in the year 1990. Vasudev admittedly had houses in the part of the properties claimed by Shantaram. Vasudev also claimed right in Survey Nos. 115/1 and 3. Shantaram never claimed any right in any part of Survey No.115. Hence, there is no dispute with regard to Survey Nos. 113 and 115. The only dispute is that both of them claimed possession as a tenant of Survey Nos. 114 and 116. The application of Vasudev specifies the extent of his claim as a tenant in possession. It claims half part of Survey No.114, full part of Survey No.115/1, 1/3rd part of Survey No.115/3 and 1/5th part of Survey No.116 of village Mayem, Bicholim, Goa. Hence, Shantaram is accepted to be the tenant in possession of the entire Survey No.113, half part of Survey No.114 and 4/5th part of Survey No.116; he does not claim survey no. 115. 8. Vasudev claims that he paid rent to Shantaram in respect of such properties claimed by him. Shantaram acknowledged receipt of the rent and issued rent receipts. Vasudev has sought to produce 3 such rent receipts. 9. The defence of Shantaram is essentially upon the 8 fact that Vasudev was injuncted since 1985. There was no injunction for Survey No.115/1 and 3. Vasudev never claimed land under Survey No.113. The only dispute before the Mamlatdar was the tenancy and possession claimed by Vasudev in respect of similar part of the land claimed by Shantaram being half of Survey No.114 and 1/5th of Survey No.116. The possession with regard to only that portion of the property came to be challenged. The main challenge is that Vasudev could not have been in possession of these properties consequent upon the initial order of injunction. In the long and detailed written statement of Shantaram (filed by his son) in the Mamlatdar's Court, Shantaram has stated that the parties had separate and independent residence with no relations. However, their relationship, though distant, has later been seen. The initial order of injunction itself shows the houses of Vasudev in a part of the properties claimed by Shantaram. Vasudev has denied any possession of Krishna Parab. He has relied upon the fact that the custodian accepted him as a tenant. It is contended on behalf of Shantaram that there could have been no subtenancy and hence, Vasudev's claim of payment of rent to him for his proportionate share cannot be accepted. It is precisely because there could have been no subtenancy for 9 Vasudev who has paid rent of his proportionate share to Shantaram and allowed Shantaram to be shown as the tenant in the records of the custodian, that Vasudev had to make his claim. 10. The written statement of Shantaram's son shows that there were auction bids of Cashew seeds and Cashew Apple growing on Shantaram's land in which Vasudev was invariably the highest bidder. He has also contended that the rent receipts relied upon by Vasudev were never produced by him during the life time of Shantaram though they are stated to be signed by Shantaram. The rent receipts are stated to be forged and fabricated. 11. However, there are excise licences issued to Vasudev for extraction of cashew juice and distillation of liquor. Such excise licences would prove possession of the licencee in respect of the land for which the licences are issued, though not his tenancy. 12. Shantaram also relied upon the fact that Vasudev had lodged a complaint on 19.11.1984 with the Custodian. It was dismissed under order dated 21.1.86 by the Custodian, 10 which order had not been challenged. 13. Shantaram also relied upon certain statements of the Vasudev as well as his father in the civil suit filed by Chaugule against Shantaram bearing No.59 of 1971 in which they had admitted the sole tenancy of Shantaram with regard to the entire property. Upon these facts, Shantaram applied for dismissal of the complaint. 14. Vasudev was examined by the Mamlatdar. He sought to prove receipts issued by Shantaram. He stated about the compromise between him and Shantaram after filing of the civil suit. He produced form Nos. I and XIV and sketch plan showing the properties claimed by him. He accepted the records of the judicial proceedings in the civil suit. He deposed about licences obtained by him as well as the sale deed. He however, could not identify the precise signatures on the receipts upon the fact that he could not see, his eye-sight being weak. He admitted that the documents are in the name of Shantaram. He deposed that except between 1986 to 1990 when he was permitted to possess the suit properties, he was prevented from its enjoyment. In 2001, he deposed that he was out of 11 possession for 15 to16 years. This would be after Shantaram obtained the order of injunction. 15. It is sought to be contended on behalf of Shantaram that he could never have been in possession because of the order of injunction. The party who is not in possession because of the order of injunction cannot be stated not to have been in possession claimed by that party but for the order of injunction. The party obtaining the order of injunction cannot claim to be in exclusive possession but for the order of injunction. The claim of the parties with regard to their respective possession must be seen from the date prior to the order of injunction. 16. The learned Mamlatdar in his order dated 30.8.2002 Exhibit H to the petition, considered the properties and the claims of the parties upon evidence recorded by him. He also considered the relationship of the parties and the common house in which they resided. This fact is reflected even in the very first order obtained by Shantaram on 15.7.85 in which also the houses of Vasudev are shown in the property claimed by him in respect of which there has been no order of injunction. Claiming to be an 12 agriculturist cultivating the property upon the amendment to the Evacuee Property Act,the Mamlatdar has considered the claim of Vasudev. He has considered the share of rent paid by Vasudev. Of course Vasudev was not shown as tenant. That is accepted by the Custodian. It is precisely why he filed his application for declaration of his tenancy. That application has to be independently considered. It is not dependent upon the order of the Civil Court based upon prima facie evidence in an interim application. The Mamlatdar has recorded evidence of both parties and has considered such evidence. Essentially, the evidence accepted by the Mamlatdar is the record of rights under Form No. I and XIV and the excise licences. Pursuant to the oral compromise between the parties, the Mamlatdar has considered his oral evidence with regard to Shantaram allowing Vasudev to enjoy a part of his property despite the injunction order. He also considered that the parties lived in common house prior to the filing of the civil suit. Vasudev's name was recorded in the other rights column in the record of rights. The Mamlatdar also considered the oral evidence of various parties led by both of them. The oral evidence corroborated the applicants' case of actual possession. Those witnesses deposed about the actual cultivation of Vasudev as 13 well as the actual plucking of fruits, extraction of juice, watering of Areca grove etc. Six such witnesses were examined by Vasudev. The evidence led on behalf of Shantaram, by his son related to the admitted tenancy, admitted earlier litigations, his father's business, separate business and residence of his father, Shantaram as well as Vasudev and the denial of the oral settlement. He claimed no rights in Survey No.115/1and 3. Consequently, he stated that he had not made any application with regard to the names contained in form No.I and XIV for those survey numbers. In fact Shantaram never claimed any rights under those survey numbers. 17. On Shantaram's behalf one witness was examined as his employee. He did not produce any document pertaining to his salary. He deposed about the relationship between Shantaram and Vasudev and the fact that they were residing in common economy. His cross-examination showed no knowledge about the facts of actual cultivation on the suit properties. He did not know the cashew growth was divided into four parts, one each with Shantaram and Vasudev and the others with Karbotkars. He also did not know about the contribution of rent by Karbotkars. The witness who was 14 visiting Shantaram and supplying workers was also examined on behalf of Shantaram. He had not seen another person on the property claimed by Shantaram after 1984. That was only after the ex-parte ad interim injunction was initially granted to Shantaram which came to be confirmed under the order dated 15.7.1985. He admitted that he had not personally seen Shantaram while selling cashew apples and cashew juice. He also admitted that he does not know the boundaries of the properties as also survey numbers. The Head Clerk in the office of the Custodian was also examined on behalf of Shantaram. He deposed that he had seen the entire property of Shantaram, given survey numbers. He used to visit the property, verify the property for an assessment of amount of rent, accompany the custodian. He not only stated that the claim of the Vasudev was rejected by the Custodian but he also identified the handwriting on the rent receipts shown to have been issued by Shantaram and stated that they were not signed by the Shantaram. 18. His cross-examination revealed that he did not know the whole family of Shantaram, he was not required to know the entire property of any person as the Head Clerk or 15 Accountant in the office of the custodian, he had no written order to show that he accompanied any one from custodian's office to assess the rent, he was not a gazetted officer, that he had affirmed his affidavit pertaining to the records of the custodian without permission of the custodian, that he did not inform his superior regarding the summons and his presence in the Court. He did not show any document of his identification as a Head Clerk in the Custodian Office and could not show to which survey numbers rent receipts shown to him related. 19. Upon such evidence, the learned Mamlatdar considered the relationship in the common economy of the parties. He considered the payment of the share of rent by Vasudev initially to Krishna Parab and later to Shantaram. Upon such payment, which he accepted, he considered the consequent possession of Vasudev as a tenant in respect of part of the properties also claimed by Shantaram. He saw the personal cultivation of Vasudev for which he had obtained licences. The licences were for the year 1985, 1989, 1990, 1991, 1995. He concluded that those licences could not have been issued if Vasudev was not in possession. This was upon the oral compromise after the order of 16 injunction and site inspection report of the Custodian upon which only those licences could have been issued. Most importantly he considered the revenue records in form Nos. I and XIV from the year 1970-1972. These records which had presumptive value under Section 105 of the Land Revenue Code showed the name of Vasudev. Shantaram had not applied for cancellation of those forms or deletion of the entry of Vasudev from the records. These forms showing his name were for Survey Nos. 115/1,2 and 3 not claimed by Shantaram as well as for part of Survey Nos. 114 and 116 claimed by Shantaram. He saw that in the form for Survey No.115/1 Vasudev was shown to be cultivating and Shantaram was shown to be cultivating with Karbotkars in Survey Nos. 115/3. He considered that for Survey No.114 there was no mention of such type. He rightly considered the statutory presumption. 20. Upon documents such as form Nos. I and XIV, site inspection report, excise licence and the fact that the parties were related and had common economy he accepted the case of compromise as well as the case of payment of a part of rent to Shantaram, who was shown as a tenant under Evacuee Property Act. Upon showing lawful actual 17 cultivation by Vasudev of the part of the lands claimed by Shantaram and taking judicial notice that the tenants are illiterate agriculturists not expected to keep documentary records, he appreciated the evidence of the parties. 21. The very purpose of the right of a tenant in possession under Agricultural Tenancy Act would be to frustrated because of an order of injunction of a Civil Court or because of the tenancy claimed by a tenant, is defined under the Evacuee Property Act. The party in actual cultivation cannot claim benefits thereof when the Tenancy Act came to be applied to evacuee properties. Though, therefore, Shantaram was indeed a tenant under the Evacuee Property Act, the party in actual cultivation of his land can be declared to be a tenant under the Agricultural Tenancy Act. The real aspect was the record of rights prior to the order of injunction and the actual cultivation reflected in the site inspection and the excise licences even after the order of injunction. 22. The judgment of Deputy Collector, Bicholim, Goa in Appeal has considered this evidence. The learned Administrative Tribunal, Goa in its judgment in revision 18 under Section 50 of the Agricultural Tenancy Act has in fact reconsidered the fact of possession of all the aforesaid Survey numbers. 23. Vasudev was, therefore, declared tenant of only Survey Nos.114 part,116 part and 115/1,2 & 3. 24. It may be mentioned that Mrs. Agni correctly contended that this Court cannot even go into the evidence led and considered by the aforesaid 3 authorities. Nevertheless in view of the fact that contempt of Court's was alleged and an order of injunction which was obtained by Shantaram was shown as strongest weapon on behalf of the petitioners, the Court, to satisfy its conscience, went through the proceedings before the learned Mamlatdar. There is no material irregularity in his order. He dealt with the matter under his jurisdiction and authority. The orders in appeal and revision have confirmed his order with regard to part of Shantaram's land claimed by Vasudev. The petition cannot be sustained. The writ petition is dismissed. Rule is discharged. 19 25. The interim order of stay shall continue for eight weeks. SMT. R. S. DALVI, J. SMA