1 IN THE HIGH COURT OF BOMBAY AT GOA Second Appeal no.58 of 2001 1. Shri Xanu Raghu Shirodkar, 2. Smt. Xanu Shirodkar, both major of age, residents of House no.15, Sim vaddo, Anjuna, Bardez,Goa. .... Appellants V e r s u s 1. Shri Sebastian Fernandes 2. Smt. Raynah Maria Fernandes, both major of age, residents of Flat no.G/103, Falcon Resorts, First Floor, Calangute, Bardez, Goa. ..... Respondents Mr. J.P. Mulgaonkar, Advocate for the Appellants. Respondents absent though served. Coram: A. P. Lavande, J. Date: 1st October, 2010. ORAL JUDGMENT: By this second appeal the appellants take exception to the judgment and decree dated 29/4/2001 by which the appeal preferred by the appellants against the 2 judgment an decree dated 2/3/2000 passed by the Civil Judge, Junior Division, Mapusa in Regular Civil Suit no. 176/95/B has been dismissed. 2. The respondents filed the above suit against the appellants seeking decree of mandatory injunction against the respondents to demolish the construction carried out in the paddy field and to restore the paddy field to its original condition. The respondents also sought relief of permanent injunction against the appellants. The parties hereinafter shall be referred to as per their status before the trial Court. 3. Briefly, the facts relevant for disposal of the present appeal are as follows: The plaintiffs claimed that the paddy field named Colbata situated in village Anjuna bearing survey nos.195/7 and 195/9 admeasuring 1550 sq.metres 3 (hereinafter referred to as the suit paddy field) was given on lease to defendant no.1 by their late mother/mother-in- law Mrs. Matilda Fernandes for the purpose of cultivation and the defendant no.1 used to pay rent in kind. The plaintiffs further averred that on 26/9/1995 he had been to the suit paddy field and he saw that a pucca house was constructed in the suit paddy field and the internal work was going on. He questioned the defendant no.1 about the construction. The plaintiff approached the Sarpanch and lodged a complaint but the Sarpanch did not take any action. The plaintiff filed the suit seeking reliefs of mandatory and permanent injunction against the defendants. The defendants contested the suit. The defendants did not dispute that they had carried out the construction in the suit paddy field but their defence was that since they were tenants of the paddy field they were deemed purchasers and as such, the plaintiffs did not have any right or locus standi to file the suit claiming the reliefs 4 of mandatory and permanent injunction. Further it was the case of the defendants that the construction was carried out long time back. 4. On the basis of the pleadings of the parties, the following issues were framed: i) Does the plaintiff prove plaintiff prove that the defendant has raised an illegal construction of a house in the suit property? ii) Does the defendant prove that the house was always existing for a long time? iii) What relief? What order? The plaintiffs examined two witnesses. The defendants did not lead any evidence. The trial Court answered the issued against the defendants and decreed the suit. 5. The defendants preferred Regular civil Appeal 5 No.70 of 2000 to the District Court at Panaji which was made over to the Court of Additional District Judge at Mapusa. The lower Appellate Court framed the following points for determination: i) Whether the suit should fail for not claiming possession of the suit paddy field? ii) Whether the mandatory injunction granted by the trial Court is sustainable in law? 6. The Lower Appellate Court dismissed the appeal holding ownership of the paddy field did not vest in the defendants until the purchase proceedings were initiated before the Mamlatdar and sanad was given. The lower Appellate Court further held that since the defendants had not obtained declaration from the Mamaltdar that they were tenants of the suit paddy field, they could not claim tenancy in respect of the suit paddy field. The lower Appellate Court further held that even if 6 defendant was a tenant and on the tiller's day he had become the deemed purchaser, the same did not create right in his favour to change the nature of the property. 7. Mr. Mulgaonkar, learned counsel for the appellants/defendants submitted that since the plaintiffs in their plaint have clearly admitted that the defendants were the tenants even prior to the tiller's day i.e. 2/3/1976, therefore, under the provisions of the Agricultural Tenancy Act, 1964, the defendants became deemed purchase of the land on the tiller's day and consequently the plaintiff ceased to have any right in the suit paddy field on the date of filing of the suit. Mr. Mulgaonkar, therefore, urged that the relief of mandatory and permanent injunction sought by the plaintiffs against the defendants were not available more particularly having regard to the fact that the plaintiffs were residents of Nasik and even in the cause title of the plaint they have shown their addresses at 7 Calangute. Mr. Mulgaonkar, therefore urged that the plaintiffs were not entitled to permanent and mandatory injunction sought for by them. In support of his submissions, learned counsel relied upon the decision of the Apex Court in the case of Sri Ram Ram Narain V. State of Bombay ,A.I.R 59 S.C. 459. 8. As stated above, the respondents have chosen not to put in appearance inspite of the fact that they have been served. 9. The appeal was admitted on the following substantial questions of law: a) Whether the Courts below erred in not addressing themselves to the maintainability of the suit and the locus standi of the plaintiffs to seek reliefs of injunction, prohibitory or mandatory in respect of the suit paddy field and/or suit construction? 8 b) Whether the Courts below failed to take into account the provisions of the Goa Agricultural Tenancy Act as amended by the fifth Amendment Act in deciding the suit of the plaintiffs? c) Whether in view of the admitted position that the defendants were the tenants of the suit-paddy field, the plaintiffs had no ownership right in the suit paddy field from the date of the Tillers Day as defined in Section 2(23A) of the Act and had no interest in th suit paddy field save and except to receive the statutory purchase price as fixed by Section 18D of the Act? d) Whether the plaintiffs having no legal right to the suit- paddy field except to the extent provided in Section 18D of the Act i.e. To receive the statutory price fixed thereunder, a suit for injunction in respect of the suit construction was maintainable on their behalf and whether the plaintiffs were entitled to relied of injunction, whether prohibitory or mandatory? 9 10. According to the plaintiffs themselves Mrs. Matilda Fernandes the mother/mother-in-law of the plaintiffs had given on lease the suit paddy field to the defendant no.1 and as such the defendants were the tenants much prior to the tillers day i.e 12/3/1976. This being the position, the question which arises for consideration is whether on the date of filing the suit the plaintiffs had any right to file the suit for mandatory and permanent injunction against the defendants on the ground that they had carried out illegal construction in the suit paddy filed without obtaining permission form the village panchayat. In other words the question which arises for consideration is whether any obligation existed in favour of the plaintiffs in order to claim relief of permanent and mandatory injunction against the defendants. 11. In order to appreciate the contention of Mr. 10 Muglaonkar it would be appropriate to consider the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (“The Act” for short). In terms of Section 18A of the Act on the tillers day i.e 12/3/1976 every tenant subject to other provisions of this Act, shall be deemed to have purchased from his landlord the land held by him as a tenant and such land shall vest in him free from all encumbrances subsisting on the said day. Upon bare perusal of Section 18A of the Act it is evident that tenant of an agricultural land, on the tiller's day becomes a deemed purchaser and land vests in him free from all encumbrances on the said day. Therefore, if the person is admittedly a tenant on the tiller's day in terms of Section 18A of the Act, he becomes deemed purchaser and the land vests in him free from all encumbrances. The necessary sequitur, therefore, is that on the tiller's day the landlord stands divested of his proprietary rights in respect of the agricultural land. Mr. Mulgoankar is 11 justified in placing reliance upon the judgment of the Apex Court Court in the case of Sri Ram Ram(supra) in which the Apex Court while considering the provisions of the Bombay Agricultural Tenancy Act and more particularly Sections 32A to 32 R of the Act which were brought into force by way of amendment to the Bombay Agricultural Tenancy Act held that on the tiller's day the title to the land which was vested originally in the landlord passes to the tenant. The provisions of Sections 32 A to 32R of the Bombay Agricultural Tenancy Act are in pari- materia with Section 18A to 18L of the Act although there is some minor difference between the provisions of the two Acts but the same is not relevant in so far as the issue involved in the present matter is concerned. Therefore, in terms of Section 18A of the Act on the tiller's day i.e. 12/3/1996, the defendants became the deemed purchasers in respect of the suit paddy field and consequently the plaintiff stood divested of their property rights in respect to the suit paddy 12 filed. I am of the considered opinion that the finding of the Appellate Court that unless a declaration is obtained from the Mamlatdar or that a certificate of purchase is issued by the Mamlatdar the tenant does not become deemed purchased is patently unsustainable in law. In so far as the finding given by the lower Appellate court that the construction undertaken by the defendants was illegal since he had not taken permission from the panchayat or that the respondents were not entitled to change the nature of the property is concerned, I am of the opinion that the same is not relevant for deciding the present suit in as much as in the suit the plaintiff had claimed reliefs of mandatory and permanent injunction against the defendants. In terms of Sections 38 and 39 of the Specified Relief Act, 1963 the plaintiff in order to get permanent and/or mandatory injunction against the defendants has to prove obligation in his favour and breach thereof by the defendant. In the present case I have 13 already held that the plaintiffs were divested of their proprietary rights in respect of the suit paddy field on the tiller's day and as such, the defendants did not have any obligation in favour of the plaintiffs in respect of the suit paddy field. Under the Agricultural Tenancy Act the plaintiffs were entitled to the purchase price of Rs.4000/- per hector in terms of Section 18(D) of the Act. Therefore, at the most liability of the defendants was to pay the purchase price to the plaintiffs in respect of th paddy field only. This does not entitle the plaintiffs to get relief of mandatory and permanent injunction against the defendants. No doubt the defendants have not stepped in the box to prove their case that the construction was done many years ago as claimed by them. But even if it is held that the construction was carried out illegally and without obtaining permission from the village panchayat and without obtaining conversion, the same would not give cause of action to the plaintiff to file the suit against the 14 defendants seeking mandatory and permanent injunction since their rights were not affected. 12. In my opinion, both the courts below have misconstrued the provisions of The Goa Agricultural Tenancy Act 1964 and have held that the plaintiffs were entitled to reliefs sought for by them. 12. In view of the above discussion, the substantial questions of law formulated are answered in favour of the appellants. Consequently the appeal is allowed. The judgment and decree dated 27/4/2001 passed by the Additional District Judge at Mapusa and judgment and decree dated 2/3/2000 passed by the Civil Judge Junior Division, Mapusa are quashed and set aside. No order as to costs. A. P. Lavande, J. Ap/-