1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.523 OF 2008 Shri Deusdado Antonio Xavier do Rosario Pompeia Valadares. (since deceased represented by legal heirs) 1(a) Shri Joaquim Valadares, S/o late Deusado Valadares. 1(b) Mrs. Maria Magdalena Valadares, wife of Joaquim Valadares, both R/o. Stella Maria Apts., Miramar, Panaji-Goa. 1(c) Shri Joao M. Vianey Valadares, son of late Deusado Valadares (Plaintiff no.2 in the above matter). 1(d) Smt. Clementina Correia Valadares, wife of Vianey Valadares, both R/o H.No.881, Vijaynagar, Alto Porvorim-Goa. 1(e) Smt. Irene Alvim, daughter of late Deusado Valadares and wife of Bonny Alvim. 1(f) Shri Bonny Alvim, husband of Irene Alvim, both R/o Miramar, Panaji-Goa. 1(g) Shri Joseph Valadares, son of late Deusado Valadares. 1(h) Smt. Subitra Valadares, wife of Shri Joseph Valadares, both R/o. H.No. 887, Kamat Nagar, Alto Porvorim Goa. 1(i) Smt. Maria Fernandes, daughter of late Deusado Valadares wife of Shri Wilson Fernandes, 2 1(j) Shri Wilson Fernandes, husband of Smt. Maria Fernandes, both R/o. Miramar, Panaji-Goa. 2. Smt. Ida Lucinda Braganza, widow of Deusdado A.X. Do Rosario, Pampeia Valadares, resident of Bario Alto Guimares, Near High Court, Altinho, Panaji-Goa. …. Petitioners V/s 1. Ms. Perpetua Valadares Lobo, 2. Ms. Matlides Valadares Lobo, 3. Mr. Caetano Conceicao de Sam Joao, Baptista Pedro Valadares Lobo, 4. Ms. Crecencia Valadares Lobo, 5. Mr. Filomena Valadares Lobo, Respondents nos.1 to 5 are resident of H.No.55504, Pokreem Macazana, Salcete Goa. 6. Mr. Francisco Grao, 7. Mrs. Francisco Grao, both residents of Bordem, near Kadamaba Bus stand, Bicholim Goa. 8. Mrs. Filomena Fernandes Grao, Widow of Lelis Rufilo Grao, 9. Ms. Maria Rosa Brigida Grao, 10. Ms. Ana Severina Nanato Grao 11. Ms. Esabel Socorrina Grao, 12. Mr. Albino Jesus Pedro Grao All residents of House No.131, Sunderpeth, Bicholim Goa. …. Respondents 3 Mr. E. Dias, Advocate for the Petitioners. Mr. A. Kansar, Advocate for Respondents No.6 to 12. CORAM : N.A. BRITTO, J. DATE : 15th JUNE, 2010 JUDGMENT : Rule. By consent, heard forthwith. 2. The petitioners herein are the plaintiffs in Regular Civil Suit No.45/04 and they have assailed the order dated 4/06/2007 of the learned Civil Judge Junior Division by which the claim of tenancy raised by defendants nos.10 & 11, as tenants of half of the suit property has been referred to the Mamlatdar for his decision. 3. According to the plaintiffs, the property surveyed under No.137/2 of Bordem Village is one property of which 1/4th belongs to the plaintiffs, 1/4th to defendants nos.1 to 5, 1/4th to defendants nos. 6 to 7 and 1/4th to defendants nos. 8 to 12 and which shares according to plaintiffs are even shown on Form No. I & XIV of the said property. The plaintiffs have filed the suit for partition of the suit property into the respective shares. The plaintiffs have also challenged the inventory proceedings no.8/92/A in which defendants nos. 8 to 12 got half share of the suit property. 4. According to defendants nos. 10 & 11, within survey no.137/2 4 there are 2 properties, both having matriz no.445 but one property is known as “Cuttombona or Morvo or Molly” and the other “Murvo or Murvo Battulem”, having land registration no.17003 of which they are the owners and tenants of the other half, i.e. the other property. The defendants have claimed the said tenancy through late Albino Grao, who was the father of the defendants nos. 6 & 7 and husband of defendant no.8 and grandfather of defendants nos. 9 to 12. According to the defendants the plaintiff no.1 had created a lease in favour of the said Albino Grao on yearly rent of Rs.20/- which was further increased to Rs.50/- after liberation of Goa and the father of defendant no.6 also paid rent in kind by sending some coconuts and rice to the plaintiffs and plaintiff no.1 sometimes demanded the rent through letters and that the defendants are in possession of the said letters dated 17/11/1953, 14/06/1953 and 17/04/1956 (the last 2 being 2 post cards) and since the said late Albino Grao was the tenant in possession in respect of the other half, the entire property was surveyed under survey no.137/2 of Bordem Village and the same was in the exclusive possession of the said Albino Grao and after his death in the year 1974, defendant no.6 and his brother Leslie Grao were in possession and enjoyment of the property and after the death of the said Leslie Grao on 9/11/1991 his widow, defendant no.8 and his heirs defendants nos. 9 to 12 along with defendants nos. 6 & 7 are in exclusive possession of the suit property. 5 5. The learned trial Court observed that a perusal of the written statement of defendants nos. 10 & 11 revealed pleadings necessary to frame the issue. The learned trial Court held that the defendants had pleaded what was the rent and therefore there were sufficient pleadings to raise the issue of tenancy. 6. Shri Dias, the learned Counsel appearing on behalf of the petitioners/plaintiffs would submit, relying on Mitra of Archdiocese of Goa and Daman V/s. Mr. K. Vijayadharan (1999 (2) GLT 1997) that sufficient particulars as regards time when the tenancy was created, the person by whom it was created and on the terms on which it was created has not been mentioned and, as such, there was no question of raising the issue of tenancy. Another submission made by learned Counsel is that the suit property is joint and undivided and therefore one co-owner could not claim tenancy against the other co-owner. 7. On the other hand, Shri Kansar, learned Counsel appearing on behalf of the said defendants has submitted that the said three letters and Form No. I and XIV clearly show that the said Albino Grao was the tenant of the suit property, and, I am in entirely in agreement with learned Counsel Shri Kansar. 8. The said letters as well as other documents clearly show that the 6 land of survey no.137/2 was with Albino Grao on yearly rent of Rs.50/-. No doubt that the said entry on Form No. I and XIV (at page 41 and 129 of paper book) has been made in other rights column but the said entry has a presumption in its favour that it is correct. Therefore, the defendants had produced sufficient material before the learned trial Court to justify raising a plea of tenancy. The said plea will be ultimately decided by the Mamlatdar. 9. Needless to observe, at this stage, the Court is bound to proceed based on the averments of the plaint. According to the plaintiffs, the entire property is one and is jointly owned and the respective 1/4th share is yet to be divided by metes and bounds. According to the defendants there are 2 properties within survey no.137/2, one of which is owned by the defendants and the other is held by them on tenancy basis. Assuming for a moment that the defendants are the co-owners of the entire property, in my view, there is no prohibition in law that one co- owner cannot be a tenant of the other co-owner cultivating his undivided share of the property. One co-owner can certainly lease out his share in the property to be cultivated by another on payment of rent. There is no doubt that as the pleadings stand today the plaintiffs claim the entire property is undivided. The undivided share of the plaintiffs in the disputed property is immovable property and the plaintiffs having divested themselves of their right to possess the same in favour of the 7 said predecessor in title of defendants nos. 10 & 11 for a rent of Rs.50/- a tenancy came into being. There cannot be a good reason behind the submission made on behalf of the plaintiffs that no tenancy in respect of an undivided share can be created by a co-sharer in favour of another co- sharer. In fact, no decided case has been cited by Shri Dias in support of that submission. On the contrary, Shri Kansar has placed reliance on the case of Kishan Dashrath Naikwade V/s. Asrabai, w/o. Babu Naikwade & Ors. (1991 MHLJ 68) wherein it has been held that; “In cases where a near relation is found to be in possession of land belonging to another he cannot be deemed to be a tenant under the deeming provision of Section 5 of Tenancy Act (Hyderabad Tenancy Act, 1950). This however does not mean that if a nephew or a like relative is separate from the family of the landlord, he can in no circumstance enter into contract of tenancy with his uncle or like relation. No such proposition was laid down in any of the cases.” 10. In view of the above, no fault can be found with the impugned order and, consequently, this Writ Petition is hereby dismissed. Needless to observe the Mamlatdar will decide the claim of defendants nos.10 & 11 in respect of half of the property (of property Cartor Batulem or Cuttomoona Morvo e Molly) on its own merits and being uninfluenced by any of the observations which might have been made herein. Consequently, the Writ Petition is dismissed. Rule discharged. N.A. BRITTO, J. NH/-