-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 3 OF 2010 Shri Antonio Fernandes, son of Manuel Fernandes, 72 years old, married, agriculturist, residing at Ilhas-dod-Ratos, Neura-O- Grande, Ilhas, Goa. …... Appellant V e r s u s 1. Smt. Shakuntala D. Naik, widow of Dhananjay Naik, major, housewife; 2. Shri Pratap D. Naik, son of Dhananjay Naik, major, bachelor, 3. Shri Ajay D. Naik, Son of Dhananjay Naik, major, bachelor, 4. Shri Sanjay D. Naik, Son of Dhananjay Naik, major, bachelor, 5. Miss Alka D. Naik, Daughter of Dhananjay Naik, major, spinster; 6. Miss Sushma D. Naik, Daughter of Dhananjay Naik, major, spinster; All residents of Neura, Tiswadi, Goa. 7. The Neura-O-GRande Tenants' Association through its Chairman having his office at Neura-O-GRande, Tiswadi, Goa. 8. The Communidade of Neura-O-Grande represented by its attorney and having its office at Neura-O-Grande, Tiswadi, Goa. …... Respondents Mr. G. Shirodkar, Advocate with Mr. Ranjit Satardekar, Advocate for the Appellant. Mr. G. Agni, Advocate for Respondent nos. 1 to 6. Mr. A. Nachinolkar, Advocate for Respondent no.7. -2- Coram :- F. M. REIS, J Date : 29 th September, 2011. ORAL JUDGMENT Heard Shri Guru Shirodkar, learned Counsel appearing for the Appellant and Shri Agni learned Counsel appearing for the Respondent nos. 1 to 6 and Shri A. Nachinolkar, learned Counsel appearing for Respondent no.7. 2. The above Appeal challenges the Judgments and Decrees passed by the Courts below whereby the suit filed by the Appellant for permanent injunction and restoration of possession of the suit property came to be rejected. 3. It is the case of the Appellant that there exists a paddy field called “Pilo Cantor”, bearing survey no. 145, 188 to 196 in the Village of Neura-O-Grande at the place called “Ilhas-dos-Ratos Dempo”. Towards the southern side there exists two sluice gates and towards the northern side there exists two sluice gates. Towards the southern side of the sluice gates, lies the Zuari River and there exists a bund which protects the stream water entering the paddy field. There are two streams towards the northern side and that the two streams are at a distance of three kilometres which pass through the paddy field. The Appellant claim to be the tenants in possession of the suit property by virtue of a lease dated 29.01.1964 executed by the landlord Shri Francisco Samiro Alcantara de Piedade Vaz. It is further their case that the Respondent no.1 threatened to enter the suit stream and they came to know that they were making preparations to enter the suit stream and, accordingly, a complaint was lodged with the police. It is further their case that the -3- Respondent no.1 came to the site and forcefully carried out fishing and entered the house of the Appellant and consequently the suit came to be filed by the Appellant against the Respondents. 4. The Respondents filed their written statements disputing the claim put forward by the Appellant. According to the Respondent no.1, the tenants of the locality formed Association which has all the rights to operate/auction the fishing rights of the sluice gates. The Respondent no.1 also disputed the jurisdiction of the Court to entertain the suit. It is further their case that in the year of 1968, all the sluice gates were repaired by the Tenants Association and in 1972, new doors were constructed by the said Association. The Respondent no.2 filed written statement and also disputed the tenancy of the Appellant and possession of the sluice gates. 5. After recording of evidence and hearing the parties, the learned Civil Judge, Senior Division at Panaji, by Judgment and Decree dated 31.05.2007, dismissed the suit filed by the Appellant. Whilst passing the said Judgment, the learned Judge came to the conclusion that the Appellant has failed to establish that he is in possession and enjoyment as a lessee of the suit streams since the year 1964. The learned Judge also came to the conclusion that the Appellant has failed to establish that the Respondents have forcefully carried out fishing in the suit streams. The issues of burden cast on the Respondents were also decided in the negative by the learned Judge. Whilst appreciating the evidence on record, the learned Judge has found that there was no evidence adduced by Pw.1 to show that the bund was constructed by the said Samiro Vaz or even repaired and maintained by him. The learned Judge also found that there was no evidence adduced by -4- Pw.1 to show that he had repaired the said bund. The learned Judge also found that from the deposition of Pw.1, it transpires that she was cultivating the paddy field only till February 1979. The learned Judge also found from the cross examination of Pw.2 that his testimony could not be believed. The learned Judge has also considered the evidence of Dw.1, who is the President of Respondent no.7-Association, who has stated that the Communidade is the owner of the bund and the sluice gate existing on the said bund was being maintained by the Communidade before the Agricultural Tenancy Act came into force and that after enactment of the Agricultural Tenancy Act, the tenants of the paddy filed holders formed an Association and the said Association started auctioning the sluice gate to different bidders every year. The learned Judge as such found that the Appellant has failed to establish his possession and enjoyment as a lessee of the suit stream/sluice gates since the year 1964. Accordingly, the suit came to be dismissed by the learned Trial Judge. In the Appeal preferred by the Appellant before the learned Addl. District Judge, by Judgment and Decree dated 29.09.2009, came to be dismissed. While appreciating the evidence on record, the Lower Appellate Court has come to the conclusion that the Appellant has failed to establish that he is a tenant in possession of the suit paddy field and has a right to operate the sluice gate. The learned Judge also came to the conclusion that the Appellant failed to establish that the Respondents had trespassed into the property and caused damage to the Appellant. Whilst appreciating the evidence on record, the Lower Appellate Court has taken note of the fact that the bund was being repaired and maintained by the Respondent no.7 and that Pw.1 has also admitted that Respondent no.7 consist of farmers cultivating the paddy filed in the vicinity of the said bund and belonging to the Communidade. The learned Judge also found -5- that the challan produced by the Appellant does not disclose the survey number of the paddy field. The learned Judge as such found no merit in the Appeal of the Appellant and dismissed the said Appeal. 6. Shri Shirodkar, the learned Counsel appearing for the Appellant, has assailed the impugned Orders essentially on the grounds that the Courts below have failed to consider that there was a stream which was passing through the paddy field which is claimed to be tenanted to the Appellant and that the Respondents have no right at all to the said stream as if forms part of a tenanted land. The learned Counsel further pointed out that as far as the sluice gates are concerned, the Appellant would not press for any reliefs as far as the said sluice gates. 7. Shri Agni, the learned Counsel appearing for the Respondent nos. 1 to 6, has pointed out that though the Appellant alleged that the streams were part of the tenanted land, nevertheless, no submissions to that effect were advanced by the Appellant before the Courts below making any differentiation between the sluice gates and the alleged streams. The Learned Counsel further pointed out that it is well settled that the streams and their nullah belonged to the Government and, as such, claiming any private right to said stream would not arise. The learned Counsel further pointed out that the Courts below on the basis of material on record, have concurrently held that the Appellant is not entitled for reliefs as they have failed to establish his claim to possession and enjoyment of the sluice gates. The learned Counsel further pointed out that in any event, the dispute now sought to be raised by the Appellant that the streams form part of tenanted land, is a -6- matter to be adjudicated by the Mamlatdar and the Civil Court has no jurisdiction to decide such dispute as the Mamlatdar would have to decide that such piece of land is agricultural land. 8. Having heard the learned Counsel and on perusal of the Judgments passed by the Courts below, I find that after minutely examining the evidence on record, the learned Trial Judge has come to the conclusion that the Appellant has no right at all to the sluice gates. The Courts below after appreciating the evidence on record and taking note of the fact that the repairs of the sluice gates existing at the site, were carried out by the Respondent no.7/Tenants Association and the same is being operated by them for quite a long period of time without any objection from the Appellant, has found that the Appellant failed to establish his claim of possession and enjoyment of such sluice gates. Considering that the learned Counsel for the Appellant is not claiming any right to the said sluice gates, I find that no interference is called for in the impugned Judgments. 9. With regard to the contention of Shri Shirodkar, learned Counsel, that the streams existing in the paddy filed form part of the tenanted land or not is a matter which cannot be adjudicated before the Civil Court. Whether such pieces of land are agricultural lands, would have to be decided by the learned Mamlatdar in appropriate proceedings. Nothing precludes the Appellant to file an appropriate proceedings before the competent Authorities to get such claim adjudicated if so advised in accordance with law. Considering the Judgments passed by the Courts below, I find that such dispute was not raised at all before the Courts below by the Appellant and, as such, the question of any substantial question of law arising in -7- the present Appeal on such count, would not arise at all. But, however, if so advised, the Appellant may resort to such remedies available to them in accordance with law to get such claim adjudicated. 10. Subject to the above, I find that no substantial question of law arises in the present Appeal to be considered under the provisions of Section 100 of the Civil Procedure Code and, consequently, I find no merit in the above Appeal which stands dismissed. F .M. REIS, J. arp/*