1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NOS. 64 OF 2009 AND SECOND APPEAL NO. 65 OF 2009 SECOND APPEAL NO. 64 OF 2009 Shri Vasant Arjun Dessai, Son of late Arjun Dessai, Major, Agriculturist, Residing at Deulwada, Virdi,(Village Panchayat of Sankhalim), Bicholim, Goa(since deceased) represented by his heirs and legal representatives:- a). Smt. Hirabai Vasant Dessai, b). Shri Deepak Vasant Dessai, c). Shri Narendra Vasant Dessai, d). Shri Sandeep Vasant Dessi, e). Miss Nayan Vasant Dessai, All major, Residing at House No.322, Deulwada, Virdi, Sanquelim, Bicholim Taluka, Goa. ... Appellants versus M/s. Sesa Goa Ltd., through its Managing Director, having its office at Patto, Panaji. ... Respondent SECOND APPEAL NO. 65 OF 2009 Shri Shiva Bablo Kamat, Major, Agriculturist, Resident of House No.608, 2 Gaonkarwada, Virdi, (Village Panchayat of Sankhalim), Virdi-Harvalem. ... Appellant versus M/s Sesa Goa Ltd., through its Managing Director, having its office at Patto, Panaji. ... Respondent Shri S. D. Lotlikar, Senior Avocate with Ms. G. Xettigar, Advocate for the Appellant. Shri R. G. Ramani, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 23RD MARCH, 2010. ORDER These are Second Appeals filed by the Plaintiffs arising from RCS No.81/93 and RCS No.80/93, respectively. Both these Second Appeals can be conveniently disposed of by a common Order as the facts and the law applicable are identical and the Defendant/Respondent is common. 2. Heard Shri S. D. Lotlikar, the learned Senior Counsel appearing on behalf of the Appellants/Plaintiffs and Shri R. G. Ramani, the learned Counsel appearing on behalf of the Respondent/Defendant. 3 3. The dispute involved in RCS No.81/93 is as regards property having sub-divisions Nos. 2, 4, 6, 8, 10, 12 and 14, and in RCS No.80/93 is as regards property having sub-divisions Nos.1, 3,5, 7, 9, 11 and 13. All sub- divisions are of Survey No.17 of Village Maulinguem in Village Panchayat of Sanquelim-Harvalem-Virdi, in Bicholim Taluka. 4. The Plaintiffs had filed the suits claiming that they were the owners of the suit property in view of the Certificate of Purchase granted to the Plaintiffs by the Mamlatdar. The Plaintiffs had stated that from June, 1991, the whole of the suit properties were full of mining rejects dumped by the Defendant as a result it had become fallow, and as such the Plaintiffs were not able to do any cultivation therein. The Plaintiffs had sought a permanent injunction against the Defendant restraining them from dumping mining rejects in the suit properties, and from interfering with the Plaintiffs possession in the suit properties. The Plaintiffs had also sought an order of mandatory injunction against the Defendant directing them to remove the mining rejects accumulated in the suit property, and, restore the land to its original state, and also for damages of Rs.5000/- per year from June, 1991 until the mining rejects accumulated in the suit property were removed. 5. The suit was resisted by the Defendant stating that the suit properties were purchased by them by sale deeds dated 9-7-1970, and from 4 that year mining operations were being carried out by the Defendant in the suit properties. The Defendant had stated that the Plaintiffs were trying to take advantage of the fact that their names were shown in the tenant's column in form Nos. I & XIV of the survey and that the Plaintiffs were neither the tenants of the suit property nor were they cultivating the same. The Defendant had also filed a counterclaim for declaration that the Certificate/s of Purchase dated 28-5-1998 be declared null and void. 6. Several issues were framed by the learned trial Court. The Plaintiffs had examined three witnesses while the Defendants examined six witnesses, in support of their respective cases. 7. Both the Courts below have accepted the defence evidence and held that the Plaintiffs were not in possession of the suit properties while the Defendant was in possession of the same pursuant to the sale deeds dated 9-7-1970 executed by the previous owners in favour of the Defendant. The Defendant had examined two of the previous co-owners in support of the said sale deeds, and several of their officers who had categorically stated that after the purchase of the suit properties the suit properties were used for dumping ore rejects which looked like hills and the Defendant had also made plantation of cashew and forest trees on the said dumps. The Defendant had produced overwhelming evidence to prove that pursuant to the said sale deeds it is they 5 who were in possession of the suit properties. It is therefore obvious that the Plaintiffs could not have been in possession of the suit properties on the appointed date or on the tiller's day. 8. The learned trial Court allowed the counterclaim filed by the Defendant and declared the Purchase Certificates dated 28-5-1998 as not binding on the Defendant. That finding has been upset by the learned first appellate Court, and, the Defendant has not challenged the same. 9. These second appeals arise from cases where there are concurrent findings of facts rendered by the Court below based on overwhelming evidence which have been accepted by both the Courts. In view of the concurrent findings of fact arrived at by the Courts below that the Plaintiffs were not in possession of the suit property at least from the time it was sold by the previous owners to the Defendant, the Plaintiffs suits were bound to be dismissed. In fact, as already stated Defendant's witnesses included the previous owners of the property who had categorically stated that the Plaintiffs were not their tenants. 10. Nevertheless, some submissions made by Shri Lotlikar, the learned Senior Counsel appearing on behalf of the Plaintiffs, and which submissions were also made before the learned first appellate Court may be 6 considered, briefly. 11. Learned Senior Counsel contends that the Plaintiffs had their name entered in the tenant's column and therefore there was a presumption in favour of the Plaintiffs that they were tenants and now had become deemed purchasers. The only document the Plaintiffs had in their favour is an entry in form Nos. I & XIV showing that they were the tenant of the suit properties. As rightly noted by the learned first appellate Court(FAC) the said entry by virtue of Section 105 of the Land revenue Code is to be presumed to be true until the contrary is proved or a new entry was lawfully substituted therefore. This aspect has been considered by the learned F.A.C. in paras 17, 18 and 19 of the Judgment, in detail. It is true that in terms of amendment carried out w.e.f. 9-11-2006 to Rule 51 of the G.D.D. Agricultural Tenancy Rules(Revenue Survey and Record of Rights)(Amendment) Rules, 2006 a survey prepared and prescribed under the Land Revenue Code, 1968 and the Rules framed thereunder shall be deemed to be surveys made and maintained and the records of rights prepared and prescribed under the provisions of these Rules. The learned F.A.C. referring to Narayan Prasad v. State of M.P.(2008 ALL SCR 35) has held that the presumption of entry in the survey records can be rebutted. That is now a settled law. The learned F.A.C. took note of the sale deeds produced by Defendant's witnesses, including previous owners particularly the evidence of DW3 who had stated that there was no cultivation 7 done at any time in the suit properties and that there were no tenants. The learned F.A.C. Also took note of admissions made by the Plaintiffs(PW1) to the effect that they had nothing in writing to show that they were the tenants of the Dessai family; that they also did not have any receipt that they were paying rent of Rs.100/- to the landlord, etc. and came to the conclusion that by production of sale deeds, the Defendant/s had rebutted the presumption. That conclusion cannot be faulted. 12. Shri Lotlikar, the learned Senior Counsel next submits that the Plaintiffs had Purchase Certificates issued by the competent authority in their favour, namely the said Purchase Certificate of May, 1998 which showed that they had become the owners of the suit properties, and in view of conclusiveness of the said certificates the learned trial Court could not have come to any other conclusion except that the Plaintiffs were the owners of the suit properties. In support of this submission, the learned Senior Counsel has placed reliance on the decision of the Apex Court in the case of Saraswatibai Gaikwad v. Damodar Motiwale(2002(4) SCC 481) wherein the Apex Court with reference to Bombay Tenancy and Agricultural Tenancy Act, 1948 has held that a Purchase Certificate issued to the tenant stands as conclusive proof of purchase of land concerned unless it is set aside in proper proceedings under the Act. Certainly no fault could be found with the said proposition. If the SPurchase Certificate issued in favour of the Plaintiffs 8 conclusively shows that they are the owners in possession of the suit properties, one fails to understand what inference could be drawn from the dropping of purchase proceedings against the previous owners, taken under Section 18-C of the Tenancy Act, on or about 9-7-1998 subsequent to the said Purchase Certificate of 28-5-1998. This the Plaintiffs have not explained. The learned trial Court noted that the present suits were filed on or about 1-7-1993, and that in the original written statement filed on 15-7-1997, the Defendants had pleaded that the suit property was purchased by them by sale deed dated 9-7-1970, and that they were in possession of the same since then and had denied the existence of tenancy or claim of possession by the Plaintiffs and inspite of that the Plaintiffs had not impleaded the present Defendants when they filed the purchase application under Section 18-C of the Agricultural Tenancy Act, and, therefore the order passed by the Joint Mamlatdar did not bind the Defendants. The learned F.A.C. also dealt with the submission and held that the said Purchase Certificate could not be used for the purpose of determining the rights of the parties in the present case reason being the Defendants were not notified by the purchase proceedings. The learned F.A.C. also noticed the admissions made by the Plaintiffs (i.e. PW1) that they did know whether the previous owners were notified about the purchase proceedings. The learned F.A.C. also noted that the Plaintiffs had admitted that the purchase proceedings were initiated suo motu by the Mamlatdar. The learned F.A.C. also held that the Purchase Certificate though issued by a 9 competent authority appeared to have been issued negligently or obtained fraudulently as the Plaintiffs had not disclosed the name of the owners of the suit property. Section 4 of the Indian Evidence Act, 1872, inter alia, deals with conclusive proof and states that when one fact is declared by that Act to be conclusive proof of another, the Court shall on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. True, Section 18-H of the Tenancy Act provides that on deposit of the purchase price in lump sum or of the first instalment, of such price the Mamlatdar will issue a Purchase Certificate in the prescribed form to the tenant-purchaser in respect of the land, and such certificate will be conclusive evidence of the purchase subject to what is stated in sub-section(2) and which deals with failure to recover the purchase price as arrears of land revenue and the purchase becoming ineffective. However, the Purchase Certificate produced by the Plaintiffs was without any notice to the previous owners as well as to the present Defendants, and, therefore the same could not be binding on them. Conclusiveness contemplated can only be given when such Certificate is issued only after notice is given to the owners or landlords of the property and not otherwise. In other words, a Purchase Certificate can become conclusive only between the parties to it and if issued after notice. As already stated, the Plaintiffs had failed to obtain a Purchase Certificate against the previous owners and the proceedings in that regard under Section 18-C of the Tenancy Act were dropped by the Mamlatdar on 9-7-1998. The Plaintiffs 10 therefore could not have derived any benefit from the said Purchase Certificate which was issued in their favour without notice either to the previous owners or to the present Defendants who had purchased the suit properties way back in the year 1970. 13. Shri Lotlikar, the learned Senior Counsel next submits that the Plaintiffs whose names were shown as tenants in survey records could not have been non-suited by the Civil Court without referring the issue of tenancy to the Mamlatdar. Learned Senior Counsel therefore contends that the dismissal of the suits is without jurisdiction. Learned Senior Counsel further submits that the Civil Court ought to have given an opportunity to the Plaintiffs to prove their tenancy before the Mamlatdar and in that regard learned Counsel has placed reliance on a Division Bench Judgment of this Court in Bhagwantrao s/o Jijaba Auti v. Ganpatrao s/o Mugaji Raut and another(1987(3) Bom.C.R. 258) and also on a Full Bench decision of this Court in the case of Rajaram Totaram Patel v. Mahipat Mahadu Patel(1967 Mh.L.J. 522). 14. On the other hand, Shri R. G. Ramani, the learned Counsel appearing on behalf of the Defendant has submitted that Plaintiffs' suits were for injunction simpliciter and was based on possession which the Plaintiffs failed to prove. Shri Ramani, learned Counsel also submits that the Defendant 11 purchased the suit properties from the Dessai family i.e. the previous owners by sale deed dated 9-7-1970, and since then have been in possession of the suit properties, and both the Courts below have concurrently held that the Defendant is in possession of the suit properties pursuant to the said sale deeds. Learned Counsel further submits that since the Plaintiffs were not in possession of the suit properties, the Plaintiffs were bound to fail in the suits filed by them. It is also submitted that since the land was not under cultivation, the Mamlatdar had dropped the purchase proceedings on 9-7-1978. Shri Ramani, learned Counsel further submits that in case the Plaintiffs were not in possession it is the Plaintiffs who ought to have approached the Mamlatdar and not approached the Civil Court by filing a suit for injunction. Learned Counsel further submits that no substantial question of law arise in these Second Appeals either on facts or in law in view of overwhelming evidence produced on record by the Defendant, and, therefore these Second Appeals be dismissed. 15. As already stated, according to the Plaintiffs themselves and as can be seen from para 11 of the respective plaints, from June, 1991 the whole of the suit properties were full of mining rejects dumped by the Defendant/s and had become entirely fallow. There is also the evidence of the Defendant's witnesses that from 1972 at least there was continuous progressive dumping 12 which had given rise to certain dumps which looked like hills and the Defendant had carried out cashew plantation and plantation of trees of forest species. There was also evidence produced by the previous owners particularly DW3 who had categorically stated that he nor other co-owners had received any rent from the Plaintiffs. The Plaintiffs had not challenged the said sale deeds inspite of the same having been brought to their notice. The only irresistible conclusion on the facts of the case was that the Plaintiffs were never in possession of the suit properties, and were only making use of wrong entry made in the survey records in their favour. 16. A Division Bench of this Court in Bhagwanrao s/o Jijaba Auti v. Ganpatrao s/o Mugaji Raut and another(supra) has held that in a suit simpliciter for permanent injunction it would be necessary to frame a issue of tenancy either in favour of the plaintiff or defendant before granting relief of permanent injunction. That was a case where the Plaintiff had approached the Court claiming that he was tenant. The Full Bench in Rajaram Totaram Patel v. Mahipat Mahadu Patel(supra) has held that the question whether a person is a tenant is not limited to the narrower issue whether a person is a tenant of a particular landlord irrespective of the question whether the issue is raised by a landlord or a tenant or co-tenant or any other person. The issue in the suit was required to be decided by the Mamlatdar to whom a reference had to be made. 13 The said observations were made by the Full Bench in a suit filed by the Plaintiffs alleging that the Plaintiffs and the sole Defendant were co-tenants of a paddy field and the Defendant had obstructed the Plaintiff contending that he the Defendant had been declared as a purchaser of the paddy field after the Tillers day under the Bombay Tenancy and Agricultural Lands Act, 1948. In my view, the aforesaid observations of this Court in the aforesaid cases are not at all applicable to the facts of the present case. The Plaintiffs had not filed the suits claiming to be tenants but on the contrary claiming that the Plaintiffs had become owners of the suit properties pursuant to the Purchase Certificate issued in their favour and that being the position there was no duty cast at all upon the Civil Court to have made any reference to decide the issue of tenancy. 17. From whatever angle one looks at the case of the Plaintiffs, the Plaintiffs were bound to fail. The evidence on record abundantly proves that the Plaintiffs were never in possession of the suit properties. It is the Defendants who were in possession of the suit property pursuant to the sale deeds executed to the year 1970 and prior to that the Dessai family who sold the suit properties to the Defendant/s. The Plaintiffs were not in possession of the suit properties at any time or on the appointed day as well. In the facts of the case, reliance placed on Section 13-A of the Tenancy Act that a tenant has 14 a first right to purchase is wholly misplaced. There is no merit in these second appeals and consequently the same are hereby dismissed, with costs. N. A. BRITTO, J. RD