1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 44 OF 2002 1. Miss Aura Serafina Crispina de Souza, daughter of Luis de Souza,, major, teacher, unmarried, 2. Miss Agnes Felicia de Souza, daughter of Luis de Souza, major, unmarried, Both residing at Arradi, Guirim, Bardez, Goa. ... Appellants versus Vitorino Mendonsa, Of full age, Labourer, Resident of H.No.513, Vagator, Anjuna, Bardez, Goa. ... Respondent Mr. S. D. Lotlikar, Senior Advocate with Miss Kamaxi Sambari, Advocate for the Appellants. Mr. V. P. Thali and Miss G. Pednekar, Advocates for the Respondent. CORAM : N. A. BRITTO, J. DATE : 25TH NOVEMBER,2004 & 2ND DECEMBER,2004. ORAL JUDGMENT This is Plaintiffs' Second Appeal, arising from RCS 2 No.272/1983/Sr. 2. The parties hereto shall be referred to in the names as they appear in the cause title of the said Civil Suit. 3. The dispute between both the parties is regarding the house bearing No.513 at Vagator, and the property in which it is situated surveyed under No.311/3 of Anjuna village. 4. The Plaintiffs' suit for eviction of the Defendant filed on or about 8-11-1983 came to be decreed by Judgment/Decree of the learned Civil Judge, Senior Division, Mapusa, dated 28-9-2000. However, the Defendant having filed an appeal against the same, the said appeal came to be allowed and the suit of the Plaintiffs dismissed by Judgment/Decree dated 10-5-2002 of the learned Additional District Judge, Mapusa. 5. Briefly stated, there was no dispute that the said property with the said house originally belonged to one Salvador de Souza who after his death in the year 1954 left behind his heirs, namely, Lawrie de Souza alias Nicholas Tolentino Lawrence de Souza, married to Vida, Maria Purificacao de Souza married to Manuel de Souza and Leonard de Souza married to Maria Magdalena de Souza ... etc. The case of the Plaintiffs was that the Defendant's mother by name Maria Leopoldina de Souza, who was distantly related to the said Lawrie de 3 Souza was requested in or about the year 1964 to maintain the suit house in habitable condition and to look after the same upon payment of one khandi of paddy and one tin of kerosene per year which payment was made to her for the first year. The Plaintiffs had further pleaded that though the said Maria Leopoldina de Souza was never authorised to reside in the suit house, in the course of years she shifted her residence to the suit house along with the Defendant and started residing in the house in her capacity as care-taker and subsequently she started plucking the fruits from the suit property and selling them and maintaining the suit house with the sale proceeds of the said fruits and, therefore, the payment of the said one khandi of paddy and a tin of kerosene were deferred until the settlement of accounts. The case of the Plaintiffs was also that the said Maria Leopoldina de Souza expired on or about 20-2-1978 and the Defendant who was residing along with his said mother was allowed to continue to reside in the said house and no objection was raised because the Defendant pleaded that he would vacate the suit house and that he may be allowed to continue to stay there temporarily. The Plaintiffs stated that the said Defendant owned and possessed a residential house and a property very near to the suit property in the same village. The Plaintiffs had also pleaded that the Defendant had filed an application fraudulently claiming that he be declared as a mundkar, notice of which was issued to the said Lawrie de Souza, but that the Defendant was not their mundkar and, therefore, they did not desire to allow the Defendant to occupy the 4 said house and the property and, therefore, they desired to take possession of the same. 6. Contesting the suit, the Defendant admitted that the suit property and the suit house originally belonged to the said Lawrie de Souza and others. However, the Defendant pleaded that the donors of the Gift Deed in favour of the Plaintiffs were Pakistani Nationals and, therefore, they could not have transferred the said property unless necessary requirements were complied with under the Foreign Exchange Regulation Act(1973). The Defendant pleaded that the suit house was occupied by his mother and by him as mundkars and that his mother was residing in the suit house as a mundkar much prior to the year 1964. The Defendant denied that his mother had shifted to the suit house in course of years or that she was not authorised to occupy the suit house. The Defendant also pleaded that the Plaintiffs were not entitled for the recovery of possession of the suit property and the reliefs sought by the Plaintiffs were barred by law of limitation. 7. The learned Trial Court framed several issues and amongst them was Issue No.8 which read as follows: Whether the Defendant proves that he is residing as a mundkar in the suit house? 8. As proceedings to decide the issue of Mundkarship were pending before the Mamlatdar, the trial of the suit was stayed. By 5 Order dated 31-8-1987, the Joint Mamlatdar at Mapusa held that the Defendant was not a mundkar. The Defendant preferred an appeal before the Collector which also came to be dismissed. The Defendant then filed a Revision Petition to the Administrative Tribunal, Goa, which came to be dismissed on 24-9-1998. The Defendant then filed a Writ Petition before this Court, being Writ Petition No.236/99 which came to be dismissed by the Order of this Court dated 6-9-1999. In dismissing the said Writ Petition, this Court observed that all the fact finding authorities had concurrently held that the evidence on record disclosed that the Petitioner(Defendant) was a care-taker of the suit house and, therefore, was not a mundkar and being so there was no case made out for interference in exercise of powers under Article 227 of the Constitution. The Writ Petition No.236/99, therefore, was dismissed. I am also informed that the Defendant also filed a Letter Patent Appeal which also came to be dismissed. 9. After the plea of Mundkarship was ultimately rejected, on or about 12-9-2000, the Defendant filed an application for amendment of the written statement and by way of the said amendment application the Defendant sought to delete certain pleas taken in the written statement, inter alia, the plea that “the suit house was occupied by the Defendant's mother and the Defendant as mundkar”. The Defendant also sought addition of another plea namely that the Defendant was in open, exclusive, uninterrupted, peaceful possession of the suit house and the suit property adversely to the claim of the 6 Plaintiffs since inception and more particularly around 1965 and the Plaintiffs had not initiated any suit for recovery of possession for a period of 18 years inspite of having alleged that the Defendants are trespassers. 10. The said amendment application was dismissed by the learned Trial Court by Order dated 21-9-2000 holding that the amendment was neither necessary for determination of the real controversy between the parties nor it could be legally permitted under Order 6, Rule 17, of Civil Procedure Code and as the same was not made in good faith. 11. The learned first appellate Court allowed the said amendment application whilst hearing the appeal, and upon concession made by the Defendant that the case could be decided on the available evidence proceeded to decide the same. The learned first appellate Court, inter alia, observed that the Defendant had pleaded that he was a mundkar without admitting the ownership of the Plaintiffs and that the fact that the plea of Mundkarship was decided against the Defendant did not mean that he could not delete the same. The learned first appellate Court further observed that the plea of adverse possession raised by the Defendant was merely an extension of the plea of limitation and the Defendant was merely seeking to enlarge the plea by taking the plea of adverse possession. The learned first appellate Court after allowing the Defendant to raise 7 said plea further observed that there was inherent weakness in the case of the Plaintiffs and that they could not seek reliance on the evidence of the Defendant to defend their case and that the Plaintiffs had to stand on their own feet and could not rely on the Defendant to support his case. The learned first appellate Court also observed that there was no evidence led by the Plaintiffs to show that the mother of the Defendant had shifted to the suit house as the care-taker and that she was being paid any wages. 12. This Second Appeal was admitted on two substantial questions, namely, (B) whether the plea of adverse possession sought to be raised by the Defendant by way of amendment, was squarely contradictory to the plea of Mundkarship raised by the Defendant, and whether the first appellate Court could have allowed the said amendment by reversing the Order of the Trial Court, rejecting the same, holding that plea of adverse possession was consistent with the plea of Mundkarship and merely an extension of the plea of limitation raised by the Defendant in his written statement and (C) whether in view of the categorical finding of the competent Court under the Mundkar Act, while determining the issue of Mundkarship, which was remitted to them for decision in view of the exclusive jurisdiction of the said authorities to decide the same, that the Defendant was not a mundkar because he was caretaker of the suit house, it was permissible for the Civil Court to entertain a plea of adverse possession on the part of the Defendants? 8 13. Mr. V. P. Thali, the learned Counsel of the Defendant has submitted that the questions framed and on which the appeal was admitted are not substantial questions of law. 14. What is a substantial question of law has been considered by the Supreme Court in several decisions. 15. In the case of Santosh Hazari v. Purushottam Tiwari ((2001) 3 SCC 179) the Supreme Court(speaking through a Bench of three learned Judges) observed that Section 100 of Civil Procedure Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on “substantial question of law involved in the case”. The phrase “substantial question of law” as occurring in the amended Section 100 is not defined in the Code. The word “substantial”, as qualifying “question of law”, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. The Supreme Court further stated that a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties 9 before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. 16. The question whether once it was held by the Mamlatdar that the Defendant was not a mundkar, as he was a care-taker, whether it was permissible for the Civil Court to entertain a plea of adverse possession on the part of the Defendant, is a substantial question of law arising between the parties and which is required to be decided by this Court, in the second appeal. DATE : 2ND DECEMBER,2004 17. Mr. S. D. Lotlikar, the learned Senior Counsel of the Plaintiffs submits that once it was held by the Mamlatdar that the 10 Defendant was a care-taker, the Defendant could not have been in possession of either the house or the property, much less in adverse possession of the same. Mr. Lotlikar, submits that the first appellate Court has superceded the Judgment of this Court, upholding that the Defendant was not a mundkar. 18. On the other hand, Mr. Thali, relying on the case of Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (1995 Supp(3) SCC 179 has submitted that it was open to the Defendant to take even contrary stands(pleas) or contradictory stands thereby not affecting the cause of action in any manner. Mr. Thali, again, relying on the case of Dresser Rand, S.A. v. K. G. Khosla Compressors Ltd. and others (1995 Supp(3) SCC 181) submits that even an admission can be explained and even inconsistent pleas could be taken in the pleadings. 19. Admittedly, the suit property along with the suit house belonged to the said Lawrie de Souza and others which fact was indeed admitted by the Defendant. Subsequently, the said property/house was gifted to the Plaintiffs by the Gift Deed dated 3-3-1979 by the said Lawrie de Souza and others in favour of the Plaintiffs. The learned Trial Court had held, and in my view rightly, that the Defendant had failed to prove that the said Lawrie de Souza was a foreign national who had no right to execute the said Gift Deed in favour of the Plaintiffs. The Plaintiffs are stated to be the nieces of 11 the said Lawrie de Souza. Not only that, the Defendant had subsequently acknowledged the said Lawrie de Souza and/or the Plaintiffs to be his bhatkars. The expression “Bhatkar” in terms of Section 2(f) of the Goa, Daman and Diu Mundkars(Protection from Eviction) Act, 1975 has been defined to mean a person who owns the land on which the mundkar has a dwelling house and the expression “mundkar” has been defined under Section 2(p) of the aforesaid Act to mean a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include - (i) a person paying rent to the bhatkar for the occupation of the house; (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence; (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine, workshop or commercial 12 establishment; and (iv) a person residing in the whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition. 20. In my view, once it was held by the Mamlatdar, a Court of competent jurisdiction, that the Defendant was not a mundkar but was a care-taker, and in the absence of any other plea having been taken by the Defendant, the Defendant had no other straw to hold on to the suit house/property. In other words, the Defendant had no other status to continue in occupation of the suit house/property against the wishes of the Plaintiffs who had become the owners of the house/property pursuant to the said Gift Deed. There can be no quarrel with the propositions of law as enunciated by the Hon'ble Supreme Court in the above two decisions. The provisions of O 6, R 17 as regards amendment were enacted so that real questions in controversy between the parties could be decided. The said provisions certainly were not meant to undo or nullify the findings given in support of a plea taken by the parties. The evidence given by the Defendant before the Mamlatdar(Exh.DW1/AA) clearly showed that the Defendant was looking after the suit house/property for and on behalf of the owners as their care-taker. Once the plea taken by the Defendant that he was a mundkar was disproved before the learned 13 Mamlatdar, it was impermissible for the learned first appellate Court to allow the Defendant by way of amendment to withdraw the said plea, thereby nullifying the finding given by the learned Mamlatdar and allow the Defendant to take a plea of adverse possession and hold the same as proved, on the basis of the evidence of Defendant alone who had stood discredited in the said new plea in the light of evidence given by him earlier before the Mamlatdar. 20. Consequently, this appeal deserves to succeed. The Judgment/Decree dated 10-5-2002 of the learned Additional District Judge at Mapusa deserves to be set aside and the Judgment/Decree of the learned Civil Judge, Senior Division at Mapusa, dated 28-9-2000 deserves to be restored. The suit of the Plaintiffs, therefore, shall stand decreed with costs throughout to be paid by the Defendant. N. A. BRITTO, J. RD.