... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.472 OF 2003 Shri Lima Fernandes, s/o late Antonio Fernandes, of major age, service, presently residing at D-15, Sarvodayanagar, Datta Mandir road, near Military Quarters, Malad East, Mumbai 400 097 ... Petitioner V e r s u s Shri Gabriel Gama (since deceased through his legal representatives) 1. Smt. Luizinha Vaz, w/o Gabriel Gama, major, housewife, 2. Shri Joaquim Antonio Gama major, service, 3. Smt. Deodita Gama, major, service, 4. Smt. Maria C. Gama, major, service, 5. Shri Andrew Paes, major, service, 6. Smt. Amelia Gama, major, housewife, 7. Shri Caetano Gama, ... 2 ... major, agriculturist, All r/o Igrejwado, Cortalim, Goa. 8. Vicente D'souza, major, service, r/o Agnelowado, Sancoale, Goa. ... Respondents Mr. V. A. Lawande, Advocate for the Petitioner. Mr. R. G. Ramani, Advocate for the respondents. CORAM: R. M. SAVANT, J. DATED: 17th November, 2009. ORAL JUDGMENT: By this petition under Article 226 and 227 of the Constitution of India, the petitioner herein takes exception to the order dated 14.07.2003 passed by the learned Civil Judge, Junior Division, Vasco-da-Gama, by which order, the learned Judge was pleased to frame two additional issues i.e. issue no.(i) and issue no. (ii), which are reproduced in the impugned order. ... 3 ... 2. The factual matrix involved is stated as under: The petitioner herein is the original plaintiff in Regular Civil Suit no.42/2002/D for a declaration that the original names in the index of land in form III of the suit property surveyed under No.233/4 and 234/4 of the village Cortalim, maintained in the promulgated survey records and the subsequent entry made in the name of Gabriel Gama to be deleted. The petitioner further prayed that the records be corrected accordingly. 3. It appears that in respect of the said suit property, the respondent herein and one Luis Gama had filed an application for recording their names in the survey records as occupants. Thereafter the respondent moved an application on behalf of himself and Luis Gama to record their names as tenants. This was sometime on 14.03.1983. The Awal Karkun by order dated 28.06.1983, which was passed exparte made an entry in the said survey ... 4 ... records in favour of the said respondent and said Luis Gama. The said order came to be challenged by the petitioner by filing a Revision Application before the Deputy Collector. The said Revision application was dismissed on the ground that it was not a proper remedy and that an appeal was the proper remedy. Accordingly, the petitioner filed an appeal, which appeal came to be allowed by the Deputy Collector vide order dated 29.09.1984 and the matter was remanded back to the Awal Karkun. On a fresh consideration, the Awal Karkun by order dated 28.06.1993 rejected to record the name of the respondent and the said Luis Gama as tenants. Against the said order, it appears that the respondent and Luis Gama filed further proceedings. The matter was dismissed for default and the application for restoration was also dismissed. The claim of the said respondent and Luis Gama thus stood rejected. By letter dated 27.10.1999, the Inspector of Survey and Land Records informed the Deputy Collector and S.D.O., Vasco that the above numbers were already promulgated on 29.06.1988, ... 5 ... meaning thereby that the names of the said respondent and Luis Gama were already promulgated in respect of the said survey records on 29.06.1988 and therefore, the correction sought by the petitioner on the basis of the order dated 28.06.1993 rejecting the application of the respondent and the said Luis Gama could not have acted upon. 4. The respondent herein filed the written statement in the said suit, paragraphs 3, 8 and 9 of the said written statement are material and are reproduced hereunder: 3. The defendants submit that they are the tenants in respect of the suit property, hence this Hon'ble Court has no jurisdiction to adjudicate the suit, hence the same be dismissed. 8. Paragraphs 4 and 5 are not admitted and the plaintiff is put to strict proof thereof. It is submitted that the suit properties are in ... 6 ... exclusive possession and enjoyment of the defendants from the time of late Gabriel as tenants thereof and the cultivation of paddy and cashews is being carried out by the defendants and their ancestors for the over 60 years continuously. It is submitted that the plaintiff, his brother or sisters never possessed and enjoyed the suit property at any time. It is further submitted that late Antonio Fernandes and/or Manuel Francisco Fernandes also did not possess and enjoy the suit property during the last about 60 years. The claim of the plaintiff is false and baseless. 9. Paragraphs 6, 7 and 8 are not admitted for want of knowledge and the plaintiff is put to strict proof thereof. It is submitted that late Luis Gama and Gabriel Gama were having their own property in the same vicinity under survey no.234/2 as also they have their paddy and cashew cultivation in those area. It is submitted that Gabriel and his family members were managing the suit properties as tenants thereof and one Smt. Candida used to collect the rent in kind of the cashew ... 7 ... grove and the paddy field of the suit property. It is submitted that even land tax was paid by late Gabriel during his life time. The defendants have been extracting cashew juice of the apples with the permission of the Excise Department. It is submitted that Manuel F. Fernandes, Antonio Fernandes and or Lima Fernandes or any other person interfered with the possession and enjoyment of the defendants of the suit property for the last over 60 years and the suit property is in their exclusive possession and enjoyment for all these years. 5. The Trial Court framed four issues in the said suit. Thereafter an application was made by the respondent herein for framing of additional issues on 06.02.2003. The said additional issues were sought to be framed involving the plea of tenancy which was set up by the respondent herein. The petitioner filed a reply to the said application opposing the framing of the said additional issues. The Trial Court by the impugned order dated 14.07.2003 rejected the framing of the four additional ... 8 ... issues but framed only two additional issues which were as follows: 1. Whether the defendants prove that they are the tenants of the suit property ? 2. Whether the defendants prove that this Court has no jurisdiction as the suit is not maintainable ? 6. Being aggrieved by the framing of the said additional issues that the instant writ petition has been filed praying for quashing and setting aside the framing of the said additional issues and for directing the Trial Court not to refer the said issues to the Mamlatdar, i.e. the concerned Revenue Authority for inquiry. 7. I have heard the learned counsel for the petitioner Mr. Lawande and learned counsel for the respondent Mr. Ramani. 8. Learned counsel for the petitioner Mr. Lawande submitted that there was no necessity to frame the ... 9 ... additional issues as framed by the learned Trial Court as the pleading in respect of the tenancy is bereft of any particulars as to since when, the respondent was a tenant, what is the rent being paid by the respondent and who created the tenancy, etc. Learned counsel for the petitioner submitted that the suit filed by him is a suit simpliciter for deleting the names of the respondents and the said Luis Gama from the Revenue records as the said names have been wrongly entered in the same. 9. The learned counsel for the petitioner further submitted that the petitioner has not raised any issue involving the alleged tenancy rights of the respondent. Learned counsel further submitted that referring the said issue to the authorities under the Tenancy Act would unduly delay the matter as a decision one way or the other by the Revenue Authorities would susceptible to further challenges to the higher Authorities and ultimately this Court and therefore, the decision in the suit would be undly delayed. The learned counsel further submitted that in the ... 10 ... teeth of the orders passed by the Revenue Authorities whereby the application of the respondent and the said Luis Gama for recording their names as tenants have been rejected and in the teeth of the fact that the respondent has applied for recording his name or of the said Luis Gama as occupants, the plea that the respondent is a tenant does not stand to scrutiny. Learned counsel relied upon the judgment of the Apex Court reported in AIR 1999 Supreme Court 1464 in the matter of D. M. Deshpande and ors. v. Janardhan Kashinath Kadam and ors. wherein the Apex Court has held that in the absence of particulars as to the tenancy, as to how it was created and the terms thereof, no issue could have been framed by the Civil Court. 10. Learned counsel for the petitioner also relied upon the judgment of the Apex Court reported in {(2000) 1 Supreme Court Cases 35) in the matter of Thomas Antony v. Varkey Varkey, the Apex Court in the said judgment has held that the Civil Court can ... 11 ... consider whether the plea raised by the party that he is a tenant or kudikidappukaran is a bonafide contention. If there is not even remote possibility of the said plea being upheld by the Land Tribunal the Civil Court can conclude that the question does not reasonably arise in the case. Such unreasonable plea would be raised with the idea to procrastinate or prolong the litigation. The Civil Court cannot afford to aid such sinister tactics. 11. Learned counsel for the petitioner further relied upon the judgment of a learned Single Judge of this Court reported in 1998 AIHC 2148 in the matter of Uttam Sambha Deshmukh and ors. v. Yamunabai w/o Chandrabhan Bhoyar and ors. The learned Single Judge in the said judgment has held that the material facts constituting tenancy being not pleaded and no documentary evidence supporting such plea, being produced no issue as to tenancy arises. ... 12 ... 12. Learned counsel for the petitioner relied on another judgment of a learned Single Judge of this Court reported in 2006 (2) Goa Law Reporter 68 in the matter of Carmina Mascarenhas and 4 ors. v. Premavati Babol Sakhalkar and 2 ors. wherein the learned Single Judge has held that a vague plea, made as regards tenancy is not sufficient to frame an issue in that regard. Learned counsel for the petitioner relying upon judgments (supra) contended that considering the pleadings which are on record in the instant case, the framing of said additional issues is not justified. 13. Per contra, it is contended on behalf of the respondent by Shri Ramani that the Trial Court was right in framing the said issues in the teeth of the pleadings which are on record especially the averments made in paragraphs 8 and 9 of the written statement of the respondents. Learned counsel Shri Ramani submitted that the respondents have given the particulars as since how long they are claiming tenancy and who has created the ... 13 ... said tenancy. Learned counsel submitted that the Revenue records promulgated in the year 1988, records the names of the respondent and the said Luis Gama as tenants of the property. Learned counsel further submitted that it may be the contention of the petitioner that the said entry has been wrongly recorded or that the respondent is not entitled for his name to be recorded as a tenant in the said Revenue records. Relying upon Section 58 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 submitted that however once such a plea of tenancy is raised, the same would have to be referred to the Revenue Authorities for adjudication in view of Section 58 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. The learned counsel for the respondents therefore submitted that no fault could be found with the impugned order. 14. I have considered the rival contentions. In so far as the first submission of the learned counsel for the petitioner is concerned, that the plea of tenancy is bereft of any particulars so as to frame an issue in that regard, in ... 14 ... my view, the same is mis-founded. A perusal of the written statement filed by the respondent and especially paragraphs 8 and 9 thereof disclose the particulars on the basis of which, the respondent is claiming tenancy in respect of the land in question. The respondent in clear terms has stated in paragraph 8 that the suit properties are in exclusive possession of the defendants from time of late Gabriel as tenants thereof and that the cultivation of paddy and cashew has been carried out by the defendants and their ancestors for the last more than 60 years continuously. It is further stated in paragraph 8 that late Antonio and/or Manuel Francisco Fernandes also did not possess and enjoy the suit property during the last about 60 years. In paragraph 9, it is submitted that Gabriel and his family members were managing the suit properties as tenants thereof and one Smt. Candida used to collect the rent in kind of the cashew grove and the paddy field of the suit property. It is further submitted that even land tax was paid by late Gabriel during his life time. The defendants have been extracting cashew juice of the apples ... 15 ... with the permission of the Excise Department. It is further submitted that Manuel F. Fernandes, Antonio Fernandes and or Lima Fernandes or any other person did not interfere with the possession and enjoyment of the defendants of the suit property for the last over 60 years and the suit property is in their exclusive possession and enjoyment for all these years. Considering the said pleadings, prima facie it cannot be said that the plea of tenancy raised by the respondent is bereft of any particulars or that the said plea is not a bonafide plea taken by the respondent. If one considers the said pleadings coupled with the Revenue entry which is there in favour of the respondent in the Revenue records of the suit property, it cannot be said that the Trial Court has erred in framing the said additional issues. In my view, therefore, the contention of the learned counsel for the petitioner that the said additional issues could not be framed cannot be accepted. ... 16 ... 15. Though it is true that the petitioner has filed a suit for a declaration in respect of the entry made in favour of the respondent herein and seeks deletion of the name of the respondent on the ground that the said entry was erroneously effected in favour of the respondent. In the teeth of the pleadings and in view of the Revenue entry which is prevailing in favour of the respondent, the Trial Court was right in framing the said additional issues as the said issues are intrinsically connected with the reliefs sought by the petitioner in the said suit. The entry effected in favour of the respondent in Revenue records though according to the petitioner has been erroneously or wrongly recorded, in view of the rejection of the application of the respondent, however taking into consideration the said entry coupled with the pleadings, in my view the framing of the additional issues was warranted. Merely because the said issue as regards the tenancy of the respondent if referred to the Revenue Authorities would take its own time to be settled would be no ground to refuse to frame the ... 17 ... additional issues or refuse to refer the said issue to the Revenue Authorities. 16. In the light of the pleadings as contained in the written statement and in the light of the Revenue records, which already exists in favour of the respondent, the judgments (supra) cited by the petitioner, in my view have no application. The instant petition therefore, is without any merits and is accordingly dismissed and Rule discharged. 17. However, since the suit has been stayed, during the pendency of the above petition, in the event the Trial Court refers the said issue to the Mamlatdar, considering the fact that the suit is of the year 2002, the inquiry as regards the claim of tenancy of the respondent is directed to be expedited and the concerned Mamlatdar may decide the same expeditiously. Needless to state the Trial Court would decide the suit on its own merits and ... 18 ... uninfluenced by the observations made by this Court, in the instant judgment. R. M. SAVANT, J. lh/.