1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 126 OF 1999 Mr. Lourenco Fernandes, (since deceased) represented by his legal representative: 1. Mrs. Diguelina Fernandes, wife of Lourenco Fernandes, 2. Mr. Jerone Fernandes, son of Lourenco Fernandes, 3. Miss Rosy Fernandes, daughter of Lourenco Fernandes, All major of age, All residents of Khutiamol, Ugem, Sanguem, Goa. ... Appellants versus Sociedade Patriotica dos Baldios Das Novas Conquistas, having its Registered Office at Panjim, represented by its Constituted Attorney, Mr. Hugo Rodrigues, residing at Sanguem, Goa. ... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the Appellants. Mr. M. S. Usgaonkar, Senior Advocate with Mr. D. Pangam, Advocate for the Respondents. 2 CORAM : N. A. BRITTO, J. DATE : 13TH AUGUST, 2008. ORAL JUDGMENT This appeal is directed against the Judgment/Decree dated 23-8-1999 of the learned Civil Judge, Senior Division, Quepem, by which the suit filed by the plaintiffs has been decreed. The parties hereto shall be referred to in the names as they appear in the cause title of the said civil suit. 2. The dispute between the parties is regarding the cashew trees existing in the property surveyed under No. 52/0 of village Ugem which admittedly belongs to the plaintiffs and in which, besides the said cashew trees, there are coconut trees, forest trees and three quarries for extraction of metal stones. The case of the plaintiffs was that every year they engaged labourers to clear the grounds under the cashew trees as usual for the purpose of collecting cashew apples and nuts during the season, which work was done from December till March and the wages are paid weekly. The plaintiffs stated that the collection of cashew apples and nuts is auctioned every year and the auction bidder engages labourers for the collection of apples and nuts and extraction of juice and the auction money is paid either in cash or kind or both and the juice extracted is sold to the bidder of the zone. Plaintiffs' case was that their property falls in the first zone of Ugem for the purpose of distilling cashew liquor and they maintained the record of auction for each year and as far as possible the auction bidders remained 3 the same. It was their case that the defendant used to take auction of the first cashew zone from the Excise Department and was the auction bidder for the year 1985 and one Jeronimo Fernandes was the bidder of the first zone for the year 1987, and, in the year the suit was filed, it was Shri Govind Naik. 3. The case of the plaintiffs was that the defendant(since deceased and now represented by his wife and children) used to be the auction bidder of the plaintiffs for the collection of cashew apples, nuts and for extraction of juice from the suit property but in the years 1977-1978 the collection of apples and nuts was done directly by the plaintiffs and for the year 1987-88 as well as 1988-89 the said auction was given in favour of the defendant but the defendant was in arrears of the auction bid of Rs.14,437.28 for the year 1987-88 and Rs.38,734.20 for the year 1988-89 and for the current season of 1989-90 the defendant was not permitted to bid in the auction as he was in arrears of part of the bid amount for the said previous two years amounting to Rs.53,171.48 and was asked to remain present for the plaintiffs' Committee Meeting held on 14-10-1989 but the defendant did not appear at the said meeting but his son Jeronimo Fernandes attended the same and admitted the said arrears payable for the said two years to the plaintiffs, and gave a writing to that effect. It was the case of the plaintiffs that for the year 1989-90 the auction for collection of cashew apples, nuts and extraction of juice was given to Joaquim Dias who engaged labourers in the first week of March, 1990 to collect the cashew apples and nuts and simultaneously the work of cleaning was carried out by the plaintiffs and upon being permitted by the 4 plaintiffs the said Joaquim Dias also obtained a license for the extraction of juice for the year 1990. The plaintiffs stated that still the work of collecting cashew apples and nuts continued till the said Joaquim Dias received notice of the injunction order passed in Regular Civil Suit No. 25/90. It is the case of the plaintiffs that the defendant(since deceased and now represented by the said legal representatives) filed a suit against the said Joaquim Dias and his son-in-law by name Crispino Fernandes falsely alleging that the defendant was a tenant of the property known as “Burrachem Mol” situated at Ugem and surveyed under No.52/0 and the defendants were trying to disturb the possession of the plaintiffs by show of force. It was also the case of the plaintiffs that the defendant deliberately and cunningly did not join the plaintiffs as party defendant in the said Civil Suit No.25/90 and did not disclose true and correct facts in the suit and that thereafter the said Joaquim Dias stopped collecting the cashew nuts and cashew apples from the suit property and also withdrew the labourers engaged by him. It was the case of the plaintiffs that on 5-4-1990 the defendant trespassed in the suit property and threatened the labourers of the plaintiffs and obstructed them not to continue the work of collecting cashew apples and seeds from the suit property and he also took away from the property a tin containing cashew apples collected by the labourers of the plaintiffs and inspite of the threat and obstruction given by the defendant, the plaintiffs continued the work till date. Contending that the defendant might approach the Court by misrepresenting the facts and obtained an ex parte order, the plaintiffs filed a Caveat application. The case of the plaintiffs was that the defendant had no right to interfere and obstruct the labourers as well 5 as the defendant had also no right to say that he would not allow the plaintiffs to collect the cashew apples and nuts from the suit property. The plaintiffs therefore filed the suit for recovery of the sum of Rs.43,171.48 from the defendant being the arrears payable by the defendant for the two years 1987-88 and 1988-89 and sought permanent injunction to restrain the defendant from interfering with the peaceful possession of the plaintiffs. By application dated 28-9-1994, and the order passed thereon on 3-3-1995 the plaint was amended and several reliefs were included including recovery of possession, in the alternative. 4. The case of the defendant in brief, was that he was a tenant of the cashew grove standing in the suit property and was enjoying a few mango and jack fruit trees existing therein from the year 1972 and the defendant was paying rent of 300 mounds of cashew seeds(each mound being equivalent to 18 kgs.) and the said rent was regularly paid to the plaintiffs either in cash or in kind or both. The said plea of the defendant was struck off and the order striking off the defence has attained finality. 5. As can be seen from the impugned Judgment, the plaintiffs had filed an application for temporary injunction against the defendant which was not granted by the trial Court but in Appeal from Order No.26/1990 this Court directed the defendant to deposit the value of 300 mounds of cashew nuts with a direction to the trial Court to decide the market value of 300 mounds of cashew nuts. On 22-10-1990 an application was filed by the defendant before this Court 6 for modification of the order on the ground that the defendant was the tenant in possession of the suit property and as such he was not liable to deposit any rent. Meanwhile, the learned trial Court on 28-11-1990 fixed the value of 300 mounds of cashew nuts at Rs.98,500/-. On 28-3-1991 the plaintiffs filed an application for striking off the defence as the defendant committed default in making the deposit as directed by the trial Court. On 3-6-1991 the defendant expired and his legal representatives were brought on record. By Order dated 7-4-1994 this Court directed the defendant to deposit Rs.91,800/- by 30-6-1994, and in case the defendant deposited the same by 30-6-1994, the order striking out the defence would be set aside and in case the defendant did not make the deposit by 30-6-1994 the order striking off the defence would stand confirmed. The plaintiffs filed an application on 4-7-1994 that the defendant had failed to comply the order of this Court by 30-6-1994 and on 26-7-1994 the trial Court dismissed the application of the defendant and returned the cheque dated 27-6-1994. Again, this Court on 12-8-1994 extended the time to deposit Rs.91,800/- and which was deposited on 16-8-1994. 6. On 24-7-1995 an application was filed under Order XV-A r/w Section 151 claiming mesne profits for subsequent years and seeking a direction to the defendant to deposit the arrears of mesne profits amounting to Rs.4,76,064/- within three weeks and further mesne profits at the same rate till the disposal of the suit. On 31-10-1996 the plaintiffs filed another application under Order XV-A C.P.C. for striking off the defence. By Order dated 1-7-1996 the said application 7 was allowed and the defendant was directed to make the deposit within sixty days and also to deposit further mesne profits at the same rate till the disposal of the suit. This Order was challenged before this Court in Civil Revision Application No.127/1996 and the said application was dismissed by the Court and the defendant was granted one months time to deposit the amount under the impugned Order. As stated by the trial Court the defendant was bound to deposit the said amount of Rs.4,76.064/- on or about 19-2-1997 i.e. within thirty days from 20-1-1997. The defendant committed the default and the plaintiffs filed an application on 27-2-1997 for striking off the defence and finally by Order dated 26-5-1997, the defence was struck off and the plaintiffs were directed to lead evidence. 7. In support of their case the plaintiffs examined three witnesses and produced several documents and based on the same, the learned trial Court proceeded to decree the suit and restrain the defendant from interfering with the possession of the plaintiffs and ordered recovery of a sum of Rs. 5,67,864/-(in terms of prayer (ba)) and Rs.4,76,064/-(in terms of prayer (bb)) of the plaint. 8. Two points arise for consideration. The first whether the learned trial Court was justified in decreeing the suit holding that the plaintiffs were in possession of the said cashew trees. The second, whether the trial Court was justified in decreeing the suit in terms of prayers (ba) and (bb) of the plaint. 8 9. The plaintiffs had pleaded that the defendant had filed a false tenancy case before the Mamlatdar of Sanguem being Case No.TNC/1 of 1991 falsely alleging that he is a tenant in respect of the suit property and had obtained an ex parte injunction. The said ex parte injunction was subsequently vacated by the Mamlatdar, and, the defendant having preferred TNC/REV/12/92 against the said order before the Deputy Collector at Quepem, the Deputy Collector by his Order dated 12-2-1993 allowed the revision and restored the ex parte injunction order, and, the plaintiffs filed TNC/REV/5/93 against the said order of the Deputy Collector before the Administrative Tribunal at Panaji and which was pending for hearing at the time of filing the suit, as stated by PW1/Hugo Rodrigues later, the same has been dismissed. It appears from the impugned Judgment that the defendant had also filed an application for stay of the suit because of pendency of the said case but that application for stay was rejected by the trial Court on 21-4- 1999 and which order was upheld by this Court by Order dated 10-6-1999 in Civil Revision Application No.84/1999. 10. Mr. S. D. Lotlikar, learned Senior Counsel appearing on behalf of the Appellants/Defendants, submits that the learned trial Court could not have come to the conclusion that the plaintiffs were in possession of the disputed cashew trees when there was an order of the Mamlatdar restraining the plaintiffs from interfering with the defendants' possession. Learned Senior Counsel further submits that in case the plaintiffs were in possession of the said cashew trees as concluded by the learned trial Court then there was no question of the plaintiffs 9 being entitled to any mesne profits. Learned Senior Counsel further submits that the Civil Court could not have proceeded with the trial of the suit and ought to have stayed the proceedings once the defendant had taken the plea that the defendant was a tenant of the property and proceedings taken after 24-7-1995 are clearly without jurisdiction. Learned Senior Counsel further submits that striking off a defence taken by the defendant would be an indirect exercise to defeat the provisions of Goa, Daman and Diu Agricultural tenancy Act, 1964. Learned Counsel has placed reliance, in support of his submissions, on the case of Dhondi Tukaram v. Hari Dadu(AIR 1954 Bom 100) and Shri Inacio Martins v. Narayan Hari Naik and others(AIR 1993 SC 1756). Learned Senior Counsel has also submitted that on the face of injunction Order granted by the Mamlatdar, the Civil Court could not have decreed the suit for injunction. 11. On the other hand, Mr. M. S. Usgaonkar, learned Senior Counsel on behalf of the respondent has submitted that once the defence taken by the defendant was struck off, the plea taken by the defendant had to be ignored as by striking out the defence the very foundation of the plea taken by the defendant was destroyed. Learned Senior Counsel further submits that as there was no defence to the suit, the suit was bound to be decreed on the basis of the evidence of the plaintiffs and the documents produced by them. Learned Senior Counsel further submits that what the plaintiffs claimed was not actually mesne profits but compensation for the loss caused to the plaintiffs by the defendant taking away cashew apples and nuts. Learned Senior Counsel submits that the plaintiffs 10 continued to be in possession of the said cashew trees and it is the defendant who interfered with the possession of the plaintiffs and took away the said cashew apples and nuts. Mr. Usgaonkar, learned Senior Counsel further submits that the grant of injunction by the learned trial Court could not be faulted since the defence was struck off and thereby the issue of jurisdiction did not survive. It is also the contention of Mr. Usgaonkar, learned Senior Counsel, that the defendants having challenged the orders of the trial Court striking out the defence, it is not permissible for them now to challenge the same in this appeal. Learned Senior Counsel further submits that the proceedings filed by the defendants before the Mamlatdar will be defended by the plaintiffs, on their own merits and the suit had to be decided on the basis of the evidence produced. 12. The case of Dhondi Tukaram v. Hari Dadu(supra) was taken note of by the Supreme Court in the case of Shri Inacio Martins v. Narayan Hari Naik and others(supra). In the case of Dhondi Tukaram v. Hari Dadu(supra) it was held that in a suit filed against the defendant on the footing that he is a trespasser, if he raises the plea that he is a tenant, or a protected tenant, the Civil Court would have no jurisdiction to deal with that plea and in all such cases where the Civil Court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it, it should not proceed to dismiss the suit straightaway and the proper procedure to be adopted in such cases would be to direct the party who raises such plea to obtain a decision from the Mamlatdar within a reasonable time. If the decision of the Mamlatdar is in favour of the party raising the plea, the suit 11 for possession would have to be dismissed, because it would not be open to the Civil Court to give any relief to the landlord by way of possession of the agricultural land. If, on the other hand, Mamlatdar rejects the plea raised under the Tenancy Act, the Civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser. 13. The Apex Court in Shri Inacio Martins v. Narayan Hari Naik and others(surpa) observed that the Act(Goa, Daman & Diu Agricultural Tenancy Act, 1964) has set up an independent machinery and invests the Mamlatdar with jurisdiction to decide questions such as (i) Whether any person is a tenant or should be deemed to be a tenant under the Act, (ii) Whether the possession of any tenant in regard to any land or dwelling house is threatened and if so, whether an order safeguarding the same is required and (iii) Whether the tenancy of any deemed tenant is legally terminated and if not, whether the tenant evicted from the land held by him as such is entitled to restoration of possession. The Apex Court thereafter held that the Civil Court undoubtedly had jurisdiction under Section 9 of the Code of Civil Procedure to try and grant eviction till the Fifth Amendment came effective and after that Amendment came into force the provisions of the Act became applicable to the land in question which were primarily used for growing coconut trees and receiving profits therefrom. By virtue of Section 7 any question whether a person is a tenant or a deemed tenant was required to be decided by the Mamlatdar and the jurisdiction of the Civil Court stood ousted by Section 58(2) of the Act. The Apex Court observed that 12 three situations develop in the context of the provisions of the Act as amended by the Fifth Amendment, namely, (i) the Civil Court retains jurisdiction or (ii) the Civil Court is precluded from deciding, even incidentally, questions falling within the ambit of Section 7 of the Act, or (iii) the Civil Court's jurisdiction is wholly ousted. Since the Act is silent as to the fate of pending litigation after the Fifth Amendment the situation arising on the amendment of the Act must be decided on first principles. If a suit is filed to recover possession of agricultural land from a trespasser and no dispute arises, the adjudication whereof is required to be done by the special machinery set up under the Act, the Civil Court will continue to have jurisdiction. If, however, the defendant raises a dispute which is required to be resolved by the special machinery under the Act, a question will arise what procedure the Civil Court should adopt. There may arise a situation where the entire dispute pending before the Civil Court can be adjudicated by the special machinery only and not the Civil Court, what procedure the Civil Court follow in such a situation? In the case of the first mentioned situation there is no difficulty as the Civil Court will continue to have jurisdiction to settle and decide the dispute and grant appropriate relief. The problem arises in the two other situations where the jurisdiction of the Civil Court is partly or wholly ousted. Take the case of suit where possession of agricultural land is sought on the plea that the defendant is a trespasser and the defendant contends that he is a tenant. The question of the defendants tenancy in respect of agricultural land would be within the exclusive jurisdiction of the Mamlatdar under Section 7 r/w Section 58(2) of the Act. In such a situation what procedure should the Civil Court follow? Now take a case 13 where the entire dispute falls within the exclusive jurisdiction of the special machinery under the Act and had the litigation commenced after the Fifth Amendment was brought into force it could not have been instituted in a Civil Court. In that case what procedure should the Civil Court follow? Ultimately, the Apex Court held that it would be just and fair that the issue whether the defendant is a tenant in respect of the lands in question should be referred to the Mamlatdar for decision and after his decision is received by the Civil Court, if the issue is held against the defendant, the Civil Court may consider passing of a decree in eviction but if on the other hand, he is held to be tenant, the Civil Court may be required to dismiss the suit. 14. The learned trial Court had framed two issues. The second issue was in relation to the tenancy claimed by the defendant and it was struck off in the light of the striking off of the plea taken by the defendant. The learned trial Court noted that there was nothing before him to show that the defendant is the tenant of the said property. It appears that an application was made before the learned trial Court on 21-12-1998 by the defendants that the orders of the Mamlatdar dated 14-10-1997 be considered at the time of passing of Judgment and the learned trial Court taking into consideration the order of striking of defence did not permit the defendants to lead any defence evidence and as such the orders passed by the Revenue Authorities were not placed on record and in fact the learned trial Court held that the defendant could not be permitted to defend his case either directly or by producing any documents unless they were produced in evidence. Even if the 14 said documents were allowed to be produced, which otherwise the defendants are not entitled to, what can be seen from the said documents is that the Mamlatdar in the said TNC/1/91 had made ex parte order in favour of the defendant on 14-10-1997 but the same was vacated on 15-12-1999 and the Talathi of Ugem was appointed as a receiver. A revision filed therefrom was rejected by the learned Deputy Collector by Order dated 26-11-2001 and yet another revision filed to the Administrative Tribunal has been dismissed as stated by the plaintiffs witness the said Hugo Rodrigues. The pleadings of the plaintiffs do not appear to be in tune with the findings of the said Revenue Authorities. The defendants in fact had not even extracted an admission from the plaintiffs that on account of the Order of the Mamlatdar they had remained out of possession. In other words, there was no evidence to conclude that the plaintiffs had remained out of possession of the disputed cashew trees. On the contrary, the plaintiffs had produced not only form Nos.I and XIV wherein the plaintiffs were shown as occupants in respect of the entire property but also had produced an excise license in the name of the said Joaquim Dias for the year 1990. The plaintiffs had also produced a statement of expenditure incurred by them and recorded on the register of wages for the month of March, 1990 in respect of the property in question. The plaintiffs had also produced the declaration filed by Jeronimo Fernandes on 14-10-1989 admitting his father's liability in the said sum of Rs.14,437.28 and Rs.38,734.20 and so also their record wherein the name of the defendant was shown as the auction purchaser. Moreover, the plaintiffs said witness Hugo Rodrigues had clearly stated that the suit property was in peaceful possession and enjoyment of the plaintiffs 15 from the time it was acquired by the plaintiffs. He had also set out the facts in detail leading to the present dispute. A suggestion put to him, that the plaintiffs were not in peaceful possession and enjoyment, was denied by him. It appears that such a suggestion could not have been put to the plaintiffs' witness in the light of what has been stated by the Apex Court in the case of Modula