1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 282 OF 1999. 1. Mr. Madhukar V. Khandeparkar (since deceased by Legal representatives) 1(a) Manik Madhukar Khandeparker. (Already on record as Petitioner No.2) 1(b) Ramdas Madhukar Khandeparker. 1(c) Rashmi Ramdas Khandeparker. 1(d) Pandurang Madhukar Khandeparker. 1(e) Naresh Madhukar Khandeparker. 1(f) Babush Madhukar Khandeparker. 1(g) Nasiket Atmoo Satordekar. 1(h) Rajani Nasiket Satordekar. 1(i) Shanti Ulhas Naik. 1(j) Ulhas Babuli Naik. 1(k) Vaman Vasant Kerkar. 1(l) Varsha Vaman Kerkar. All r/o Odlem Bhat, Taleigao, Ilhas Goa. 2. Mrs. Madhukar Khandeparkar major of age, resident of Oddlem Bhat Taleigao, Ilhas, Goa. .. Petitioners. Versus 1. Administrative Tribunal, Goa, with its office at Panaji, Goa. 2. Mr. Luis Francisco Lobo, 3. Mr. Antonio J. B. Lobo, 4. Mr. Fernando Jose Lobo, 5. Mr. Mario Francisco Lobo, All major of age, 2 All residents of Mapusa, Bardez, Goa. 6. Mr. Antonio Orlando Lobo, 7. Mrs. Ligia Lobo, Both major of age, Both residents of “Fr. Agnelo Road”, Panaji, Goa. .. Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the Petitioners. Mr.V. P. Thali, Advocate for the respondent Nos.2, 3 and 5. Respondent Nos. 4, 6 and 7 absent. Coram :- A. P. LAVANDE, J. Date of reserving the judgment : 10 th October, 2008. Date of pronouncing the judgment : 14 th November, 2008. JUDGMENT : 1. By this petition, the petitioners take exception to the judgment and order dated 04.01.1999 passed by the respondent No.1 in Mundkar Revision Application No.33/88 allowing the revision application filed by the respondent Nos. 2 to 5. 2. Briefly, the facts leading to filing of the present petition are as follows : 3 In December 1975, the respondent Nos. 2 to 7 and two others filed civil suit No.267 of 1975 in the Court of Civil Judge, Junior Division, Panaji for eviction of petitioner No.2 and her husband Madhukar Khandeparkar from the house bearing Village Panchayat No.525 (hereinafter referred to as the suit house) situated at Taleigao. According to the plaintiffs in the said suit, the suit house was built by one Oidem alias Radhabai Khandeparkar with their permission and she was residing there alone as licencee. She expired in March 1975 without leaving any heirs and upon her death, the suit house remained closed. On or about 28.7.1975 Madhukar and his wife who were residing in a house bearing Village Panchayat No.560 in the same village started illegally occupying the suit house and refused to vacate it when called upon to do so. Therefore, the plaintiffs filed above suit for eviction. In the written statement, the defendants claimed that Radhabai was a mundkar along with her two brothers namely Vithal and Babuso. The defendants denied that the suit house had remained closed after the death of Radhabai. It was further pleaded that Madhukar, till he attained the age of 20 years, resided in the suit house with Radhabai and his uncle Babuso and after his marriage although he went to stay in a neighbouring house,he did not loss contact with Babuso and Radhabai and was frequently visiting them. On the basis of the pleadings of the parties, the Civil Court framed issues. One of the issues framed was, whether the defendants were staying in the suit house as mundkars ? 4 Since the issue of mundkarship was within the exclusive jurisdiction of the Mamlatdar, the civil suit was transferred to the Mamlatdar under Goa, Daman and Diu Mundkars (Protection from Eviction ) Act, 1975 (hereinafter referred to as the Mundkar Act, 1975) which had come into force on 12/03/1976. 3. The Mamlatdar of Tiswadi by judgment and order dated 31st May, 1983 had held that the defendants were the mundkars. Before the Mamlatdar, the defendants examined themselves in the suit and also examined Anant Yesu Kerkar, Uttam Yesu Kerkar, Raghu Naik and Bhaskar Rane in support of their case. The plaintiffs filed an appeal against the said judgment and order before the Collector, North Goa at Panaji which was made over to the Additional Collector. The Additional Collector by judgment and order dated 03.03.1988 dismissed the appeal by upholding the judgment and order passed by the Mamlatdar. Against the said orders, the respondent Nos. 2 to 5 preferred mundkar revision application No.33/1988 to respondent No.1. The respondent No.1 by judgment and order dated 11.10.1991 set aside the orders passed by the both the authorities below and held that the respondents were not mundkars. The respondent No.1 held that the revisional powers under section 25 of the Mundkar Act,1975, were similar to the powers provided under Section 50 of the Karnataka Rent Act. Against the said judgment and order, original defendants 5 preferred writ petition No.55/1992 which was disposed of by judgment and order dated 23.01.1988. This Court set aside the order passed by the Tribunal primarily on the ground that the Tribunal ought to have exercised its power within the scope and ambit of Section 115 of the Code of Civil Procedure. After the remand, the respondent No.1 heard both the parties and by judgment and order dated 04.01.1999 allowed the revision application and answered the issue of mundkarship in the negative. Aggrieved by the judgment and order passed by the respondent No.1, the petitioners have approached this Court by invoking writ jurisdiction. 4. The respondent No.1 set aside the orders passed by the Mamlatdar and the Additional Collector holding that the findings given by both the authorities were perverse and, therefore, could not be allowed to stand. The respondent no.1 held that the findings recorded by both the authorities below were wholly inconsistent with the pleadings of the petitioners (original defendants) in the suit. The respondent No.1 held that in the written statement filed by the defendants, they had admitted that Radhabai was mundkar. The respondent No.1 also placed reliance upon the statements made in the written statement that Madhukar has spent his childhood in the suit house along with his aunt Radhabai and uncle Babuso and after his marriage, although he went to stay in a neighbouring house, he never 6 lost contact with them and he was frequently visiting her to help her in her old age. The respondent No.1 held that the evidence led by Madhukar that suit house was constructed by his late father about 20 years back, was contrary to the pleadings before the Civil Court. The respondent No.1 also held that the evidence of Madhukar that husband of Radhabai expired immediately after 2 years after her marriage and his father brought her to the suit house, was contrary to the pleadings. In other words the respondent No.1 found that the evidence led on behalf of the defendants in the suit before the Mamlatdar, was contrary to the pleadings before the Civil Court and on this ground, the respondent No.1 held that the findings recorded by both the authorities below were perverse and consequently set aside both orders. 5. Mr. Lotlikar, learned Senior Counsel appearing for the petitioners submitted that the respondent No.1 has exercised revisional jurisdiction contrary to the well settled principles governing the exercise of the revisional jurisdiction. The learned Counsel further submitted that the respondent No.1 has repeated the same exercise which was undertaken by it while passing the judgment and order dated 11.10.1991 which was set aside by this Court in writ petition No.55/1992 He further submitted that the respondent No.1 has not considered the written statement filed by the petitioners before the Civil Court as a whole, but has picked up few portions from the written statements while 7 recording the findings against the petitioners. He further submitted that the case set up by the original plaintiffs that Madhukar had forcibly entered in the suit premises in July 1975, was rejected by two authorities upon appreciation of the evidence led by the parties and the Tribunal has not given any finding on that aspect and, therefore, has committed jurisdictional error. According to learned Counsel, the petitioners satisfy the ingredients of the definition of the 'mundkar' under the Mundkar Act. According to learned Counsel, the respondent No.1 has not recorded any findings that the findings given by both the authorities below that the petitioners were residing with the consent of the bhatkar, is perverse finding or that the said finding is de hors the pleadings. According to learned Counsel the written statement filed in the civil suit has to be read as a whole which exercise, has not been done by the respondent No.1, but on the contrary, the respondent No.1 has not addressed itself to the question, as to whether the petitioners were residing in the fixed habitation in the suit house. The learned Counsel further submitted that the pleadings or written statement should have been liberally construed having regard to the status of the petitioners. The learned Counsel further submitted that the concurrent findings recorded by both the authorities below have not been upset by the respondent No.1, but the respondent No.1 has recorded the findings, as if, it was exercising original jurisdiction, which is not permissible under the law. The learned Counsel further submitted that even under 8 Goa, Daman and Diu ( Protection from Eviction of Mundkars, Agricultural Labourers and Village Artisans) Act, 1971 (hereinafter referred to as “1971 Act” for short) mundkarship was not heritable, but under Section 3 of the Mundkar Act, 1975 the rights of the mundkar in the dwelling house are heritable though not transferable. The learned Counsel further submitted that the respondent No.1 has exercised jurisdiction illegally while upsetting the concurrent findings given by both the authorities below. According to learned Counsel, in any event, the petitioners are entitled to inherit mundkarship byway of inheritance from Radhabai. The learned Counsel further submitted that even under different Rent Control Legislation, the statutory tenancy has been held to be heritable by the Apex Court and, therefore, the petitioners are entitled to be declared as mundkars being the heirs of late Radhabai. In support of this submission, Mr. Lotlikar placed reliance upon judgments of the Apex Court in Damadilal and Others Versus Parashram and Others reported in AIR 1976 SC 2229 and Gian Devi Anand Versus Jeevan Kumar and Others reported in AIR 1985 SC 796. In support of the submission that the pleadings have to be liberally construed, the learned Counsel relied upon the judgment of Apex Court in Ram Sarup Gupta Versus Bishun Narain Inter College And Others reported in (1987) 2 SCC 555. Mr. Lotlikar, therefore, submitted that the impugned order serves to be quashed and set aside and the orders passed by both the authorities below deserve to be maintained. 9 6. Per contra, Mr. Thali, learned Counsel appearing for the respondent Nos. 2,3 & 5 submitted that the petition is essentially under Article 227 of the Constitution of India and, therefore, having regard to limited scope of interference under Article 227, no case has been made out by the petitioners for interference with the impugned order. He submitted that even if an error of law is committed by the Court or Tribunal, this Court should not exercise jurisdiction under Article 227, to correct such error, and unless there is an error of jurisdiction, no interference is warranted by this Court against the impugned order passed by Tribunal. In support of this submission, the learned Counsel relied upon the judgments of the Apex Court in Essen Deinki Versus Rajiv Kumar reported in (2002) 8 Supreme Court Cases 400, Mohd. Yunis Versus Mohd. Mustaqim and Others reported in (1983) 4 SCC 566. The learned Counsel invited my attention to the pleadings before the Civil Court and submitted that there are no pleadings in the written statement claiming independent mundkarship, but claim of mundkarship, is based on inheritance. According to learned Counsel, there are no pleadings about “fixed habitation and consent of bhatkar” in the written statement filed by the defendants in the suit. The learned Counsel further submitted that findings recorded by the Tribunal are based upon proper appreciation of factual and legal position and, therefore, no interference is called for by this Court. According to 10 learned Counsel findings recorded by the Mamlatdar and the Additional Collector, are patently wrong and have been rendered without considering the pleadings in the written statement filed before the Civil Court. According to the learned Counsel neither consent of bhatkar nor fixed habitation, as required under Mundkar Act, has been proved by the petitioners to establish the claim of mundkarship. According to learned Counsel, inheritance can be derived only by members of the family as defined under the Mundkar Act, 1975 and the petitioners have not been able to establish their claim of mundkarship by way of inheritance. In support of this submission, the learned Counsel relied upon the following authorities : (i) Jeronimo Dias Versus Jose Jeronimo Estiquio reported in 1997(1) Goa L. T. 119. (ii) Sadanand Shankar Naik Versus Smt.Ravita Ravindra Ratwal reported in 1991(1) Goa L.T. 52. The learned Counsel lastly submitted that the respondent No.1 has not committed any jurisdictional error to warrant interference by this Court and, therefore, no interference is called for by this Court. 7. I have considered the submissions made by the learned Counsel for the parties and perused the record and the judgments relied upon on behalf of the rival parties. 11 8. Before considering the arguments advanced by the learned Counsel on behalf of rival parties, it would be appropriate to quote definition of mundkar under the Mundkar Act, 1975. Section 2(p) of the Act which defines 'mundkar' reads thus : “ Section 2(p) - “ mundkar” means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include - (i) a person paying rent to the bhatkar for the occupation of the house ; (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house- compound or other portion of his employer's residence; (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and (iv) a person residing in the whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care- taker of the said house or for purposes of 12 maintaining it in habitable condition. Explanation – A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings does not succeed in obtaining a decree for the eviction of such person. ” 9. Section 3 of the Act provides that the rights of the mundkar in his dwelling house, shall be heritable and shall not be transferable. The Mamlatdar and the Additional Collector held that the petitioners were the mundkars of the suit house on the ground that they had proved that they were residing in the said house for at least over 12 years prior to the appointed date. Both the authorities also held that the evidence on record proved that the suit house was constructed by the father of the petitioner No.1 and Radhabai, the aunt of the original petitioner No.1, was residing with him and was also supported by him. The finding was also recorded that the respondents had not proved that the lock was placed by them and, therefore, petitioners entered the suit house forcibly by breaking the lock. Both the authorities recorded the finding that the petitioners were residing in the suit house with a fix habitation. The additional Collector also relied upon the fact that 13 Madhukar was given (tolluk) towards the end of 1975 which also proves that he was mundkar in respect of the suit house. The respondent No.1 while setting aside the orders passed by both the authorities below placed heavy reliance on the pleadings in the written statement filed by the defendants (petitioners herein) in civil suit No.267/1975 and recorded the finding that the evidence on record, does not prove that the petitioners were mundkars in respect of suit house. The respondent No.1 held that parties are bound by their pleadings and any evidence brought on record in variance of the pleadings must be kept out of consideration. The respondent No.1 held that the petitioners had not specifically denied the statements in the plaint that the suit house was constructed by Oidem or Radhabai. The respondent No.1 also placed reliance upon the statement made by the petitioners in their written statement that the present petitioner No.1 spent his childhood till he attained the age of 20 years in the suit house along with his aunt Radhabai and Uncle Babuso and upon his marriage, he went to stay in a neighbouring house, but he never lost contact with Babuso or Radhabai and he frequently visited his Aunt Radhabai to help her in her old age. The respondent No.1 held that the case set up by Madhukar in his evidence that suit house was constructed by his father about 20 years back, was contrary to the pleadings in the written statement. The respondent No.1 also held that the evidence of Madhukar that Radhabai was was residing with him in the suit house was also not pleaded in the 14 written statement. Further, the evidence of Madhukar that Radhabai was married and her husband expired immediately two years after her marriage and his father brought her to the suit house, was contrary to the pleadings in the written statement, wherein case set up by the plaintiffs that suit house was constructed by Radhabai, was not specifically denied by the petitioners. The Tribunal also held that same was also contrary to the pleadings that Radhabai was regular mundkar in respect of the suit house along with her two brothers Vithal and Babuso. The respondent No.1 also held that the evidence of Madhukar that he was residing in the suit house as mundkar after the death of his father, was inconsistent with the pleadings in as much as in the written statement, it was not stated that father of the petitioner was mundkar in respect of the suit house. The respondent No.1, therefore, held that the evidence led by the petitioners, was contrary to the pleadings in the written statement filed before the Civil Court. The Tribunal held that the evidence led by the petitioners which was contrary to the pleadings, was inadmissible in evidence and, therefore, the findings of both the authorities below, were perverse and could not be allowed to stand. The Tribunal, therefore, held that both the lower authorities had exercised jurisdiction illegally and with material irregularity. 10. Perusal of the written statement filed by the petitioners in the suit discloses that the petitioners did not specifically deny the 15 statement made in the plaint that the suit house was constructed by Radhabai. These petitioners pleaded that petitioner No.1 had spent his childhood till he got married in the suit house and thereafter went to stay in a neighbouring house, but he never lost contact with his Uncle and after his death with his aunt Radhabai and that he was frequently visiting her to help her in her old age. It was also pleaded that the petitioners were the heirs of Radhabai and her two brothers Vithal and Babuso. 11. In so far as the finding recorded by the respondent No.1 that the petitioners have not proved that they are mundkars in respect of suit house on the basis of the pleadings in the written statement is concerned, the same cannot be faulted. The Mamlatdar and the Additional Collector have simply accepted the evidence led by the petitioners and their witnesses to establish the fact that they were staying in the suit house for a number of years prior to the appointed date. In my considered opinion, the finding recorded by the respondent No.1 that this evidence is contrary to the pleadings in the written statement, cannot be faulted. Mr. Lotlikar has submitted that when the parties were aware that the particular question was involved in the trial, mere fact that the specific plea was not taken by the party in the pleadings, could not disentitle that party from relying upon it, if the plea is satisfactorily proved by evidence by placing reliance on the judgment 16 of the Apex Court in Ram Sarup Gupta's case (supra). In my opinion, the reliance placed, is totally misplaced in as much as in the present case, the evidence led by the petitioners before the Mamlatdar on material aspects, is totally contrary to the pleadings in the written statement. Therefore, the ratio laid down in Ram Sarup Gupta's case ,is not applicable in the present case. It is well settled that the parties are bound by their pleadings and no amount of evidence led by a party which is de hors the pleadings, would entitle a party to prove the fact which is contrary to the pleadings. I, therefore, find that the respondent No.1 was perfectly justified in reversing the findings recorded by both authorities below which could not have been arrived at in view of the pleadings in the written statement filed by the petitioners. The finding recorded by the respondent No.1 that the findings recorded by both the authorities below being contrary to the pleadings, were perverse, cannot be faulted. No doubt, the respondent No.1 while exercising revisional jurisdiction, could not have reappreciated the evidence led by the parties and upset the findings given by the lower authorities, but this is not the factual position in the present case. The respondent No.1 has not reappreciated the evidence led by the parties, but has found that the findings recorded by both the authorities below, were based upon the evidence led by the petitioners which was contrary to the pleadings and, therefore, perverse. Mr. Lotlikar, no doubt, is right in contending that the findings of the respondent No.1 that said evidence is inadmissible, is 17 not the correct position in law, but the fact remains that if the party leads evidence contrary to his pleadings, the same cannot be taken into consideration to prove a case wholly inconsistent with the pleadings. Therefore, in my opinion, the findings recorded by the Mamlatdar and the Additional Collector that the father of Madhukar constructed the suit house and Madhukar along with petitioner No.2,was staying in the suit house with a fixed habitation for a period of over 12 years prior to the appointed date, are findings contrary to the pleadings and, therefore, of no help to the petitioners. Mere fact that the respondent No.1 has not made reference to the evidence led by the parties before the Mamlatdar by itself, would not render the judgment of respondent No.1 open to interference in exercise of writ jurisdiction as being without jurisdiction. I, therefore, hold that the finding rendered by the respondent No.1 that the petitioner has not established that they are mundkars as defined under Section 2(p)of the Mundkar Act, 1975, cannot be faulted. 12. The next question which arises for consideration, is whether the petitioners have established that they are mundkars by inheritance. In this connection, reliance has been placed by Mr. Lotlikar upon Section 3 of the Mundkar Act, 1975 which provides that the rights of the