1 IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 408 OF 2004 1. Shri Paixao Rodrigues, ( since deceased ) represented by legal representatives : 1(a) Mrs. Tereza Josephine Cecilia Borges Souza Rodrigues, major in age, widow, Residing at 39, Near the Bridge, Curca, Canturlim, Ilhas Goa. 1(b) Mrs. Ritark Jacqueline Dinah Rodrigues, Major in age, married, Residing at House No.154, P.O. Sinquerim, Dando, Candolim, Bardez Goa. 1(c) Mr. Theodore John Constaoncio Rodrigues, major in age, Residing at House No.154, P.O. Sinquerim, Dando, Candolim, Bardez Goa. 1(d) Mr. Jose Remedios Adrian Agnel Rodrigues, Major in age, married, Residing at B-4, Riviera Residency, Near P. D. A. Plots, Alto Porvorim, Bardez Goa. 1(e) Mrs. Theodora Rodrigues, Major in age, married, Residing at B-4, Riviera Residency, Near P. D. A. Plots, Alto Porvorim, Bardez Goa. 1(f) Placido Nazareno Rodrigues, Major in age, bachelor, service, Residing at House No.39, Near the Bridge, Curca, Canturlim, Ilhas Goa. 2 1(g) Mr. William Prisco Rodrigues, Major in age, bachelor, service, Residing at House No.39, Near the Bridge, Curca, Canturlim, Ilhas Goa. 1(h) Mr. Edwin Alexandre Morgan Rodrigues, Major in age, bachelor, service, Residing at House No.39, Near the Bridge, Curca, Canturlim, Ilhas Goa. 1(i) Ms. Veena Francisca Rodrigues, Major in age, Spinster, Residing at House No.39, Near the Bridge, Curca, Canturlim, Ilhas Goa. 1(j) Mr. Victor Anthony Rodrigues, Major in age, bachelor, Residing at House No.39, Near the Bridge, Curca, Canturlim, Ilhas Goa. ( Petitioner No.1(b) to 1(j) represented by their duly Constituted Attorney, Mrs. Tereza Josephine Cecilia Borges Souza Rodrigues, the Petitioner no.1(a) herein ) ... Petitioners. V e r s u s 1. Mrs. Dulgem Jose Fernandes, alias Durga Jose Fernandes, Resident of Santana, Talaulim, Tiswadi, Goa. 2. Mrs. Cecilia Milena Almeida, Major in age, Working at Dena Bank, Indraprasta Building, Panaji Goa. 3. Mr. Allen Almeida, major in age, married, 3 Husband of Mrs. Cecilia Milena Almeida, Residing at Bairo, Carrascao Wado, Parra, Bardez Goa. 4. The Mamlatdar of Tiswadi Taluka, Government of Goa, at Panaji. 5. The Deputy Collector and Sub-Divisional Officer, Government of Goa, at Panaji. 6. The Administrative Tribunal of Goa, at Panaji. ... Respondents Mr. S. D. Lotlikar, Senior Advocate with Ms. G. Xettigar, Advocate for the Petitioner. Mr. G. Shirodkar, Advocate for the Respondent No.1. CORAM: R. M. SAVANT, J. Dated: 30th November, 2009. ORAL JUDGMENT 1. This Petition takes exception to the Order dated 3.6.2004 passed by the Administrative Tribunal of Goa at Panaji, by which order the Tenancy Revision Application filed by the Petitioner came to be dismissed. 4 2. The factual matrix involved in the above Petition can be stated thus : The Petitioner claimed to be the landlord of survey Nos. 87/2, 90/5 and 90/6 situated at Talaulim Village of Ilhas Goa. The said properties were leased to the ancestors of the husband of the Respondent No.1 and all the three paddy fields were possessed and cultivated by the Respondent No.1 and her husband and after the death of her husband, the Respondent No.1 and her two sons paid rent to the Petitioner for which payment according to the Respondent No.1 no receipts were issued. That in Form I & XIV of all the three lands the name of the late husband of the Respondent No.1 has been recorded as tenant. 3. The Respondent No.1 on the apprehension that some persons on behalf of the Petitioner had come to dispossess the Respondents on 4.12.1988 from the said properties, filed a Civil Suit being Regular Civil Suit No. 302/88/B for injunction restraining the Petitioner herein who was the Defendant No.1 in the said suit from disturbing the possession of the Respondent No.1 in respect of the suit fields bearing Survey Nos.87/2, 90/5 and 90/6. In the said suit the Respondent No.1 filed an application for temporary injunction which application came to be rejected by the Trial Court in respect of two survey Nos. i.e. 90/5 and 90/6, however, granted in respect of Survey No. 87/2 by Order dated 26.10.1989. The Respondent No.1 did not carry the matter further but the Petitioner herein challenged the same by filing, Misc. Civil Appeal No. 242/89 which came to be allowed by the lower Appellate Court by Order dated 12.9.1994 and the application for temporary injunction was 5 rejected on the ground that the Civil Court did not have jurisdiction to entertain the suit since the Respondent No.1 claimed to be a tenant of the said properties. 4. The Respondent No.1 thereafter initiated proceedings under Section 8- A of the Agricultural Tenancy Act, 1964, before the Mamlatdar of Tiswadi, Panaji. In the said application, it was contended by the Applicant i.e. the Respondent No.1 herein that in view of the fact that no orders were passed by the Civil Court in respect of Survey Nos.90/5 and 90/6, the Applicant and her family members did not do any cultivation in the two properties i.e. Survey Nos. 90/5 and 90/6 and that the possession and enjoyment of the property under Survey No.87/2 continued with the Applicant. In the said proceedings the Respondent No.1 also filed an application for temporary injunction for restraining the Petitioner from interfering with her possession and enjoyment in respect of the suit properties. The basis of the said application was the claim of the Respondent No.1 that the suit properties were leased to the ancestors of the husband and that during his life time the said three paddy fields were cultivated by her husband and that six quintals of paddy in kind were paid to one Mr. Paixao Rodrigues who was the owner of the said paddy fields. It was further her case that in the record of rights her husband's name was entered as Jose Custu Fernandes with regard to survey No.87/2 whereas as regards to Survey Nos. 90/5 and 90/6 it was entered as Bhiku Vernekar and Biku Vernekar. The Petitioner herein filed his reply to the said application under Section 8-A of the Agricultural Tenancy Act, 1964 as well as the application for temporary injunction 6 and stated that the same was not maintainable in absence of any declaration in favour of the Respondent No.1 as being the tenant of the suit properties. It was also denied that the Respondent No.1 was the widow of either Jose Custu Fernandes alias Bhiku Vernekar alias Buki Vernekar. It was stated in the said reply that the said properties being Survey Nos. 87/2, 90/5 and 90/6 constituted one unit and that the Petitioner was the owner and was cultivating the same. In the record of rights in respect of Survey Nos. 90/5 and 90/6 the name of Bhiku Vernekar alias Buki Vernekar appeared. The Respondent No.1 relied upon the certificates dated October, 1985 and Divergence Certificate dated 10.9.2001 to prove that Jose Custu Fernandes alias Bhiku Vernekar alias Buki Vernekar were one and the same person. 5. The Mamlatdar of Tiswadi, considered the application filed by the Respondent No.1 herein for temporary injunction and by his order 3.7.1995 granted the said temporary injunction restraining the Petitioner herein from interfering with the possession of the Respondent No.1 of the said properties. The Mamlatdar relied upon the Certificate dated October, 1985 as also the Divergence Certificate dated 10.9.2001 and held that the name in the record of rights in respect of survey Nos.90/5 and 90/6 of Bhiku Vernekar alias Buki Vernekar were of the same person i.e. Jose Custu Fernandes and since admittedly the Respondent No.1 herein was the widow of the said Jose Fernandes, she had proved that she was in possession as tenant in respect of the said paddy fields. 7 6. The Petitioner aggrieved by the Order dated 3.7.1995 passed by the Mamlatdar of Tiswadi, filed an Appeal before the Deputy Collector and SDO, Panaji, which came to be numbered as Case No. TNC/APL/22/95. The Deputy Collector by his Order dated 22.4.1997 dismissed the said Appeal and confirmed the findings of the Mamlatdar. The Appellate Authority also relied upon the said certificate issued in October, 1985 bearing No. 1630/85 as also the Divergence certificate dated 10.9.2001 and relying upon the said certificates, the Appellate Authority held that the Respondent No.1 has prima facie proved that the said Jose Custu Fernandes and the names mentioned in two certificates i.e. Bhiku Vernekar alias Buki Vernekar are the names of one and the same person and therefore the said name Bhiku Vernekar alias Buki Vernekar corresponds to the name of the tenant in respect of Survey No.87/2. The Appellate Authority also observed that the Petitioner herein has not produced any evidence in support of his contention that Jose Custu Fernandes recorded as tenant in survey No. 87/2 is some other person and not late Jose Custu Fernandes. The Appellate Authority also held that the Mamlatdar has rightly come to the conclusion that the Respondent No.1 herein has prima facie established by documentary evidence that she is in possession of the said properties and that the possession was referable to the tenancy right to the suit fields as can be seen from the survey records. The Appellate Authority also held that the balance of convenience was also in favour of the Respondent No.1 herein and if prevented from cultivating paddy and vegetables in the said fields the same would cause irreparable damage to her. The Appellate Authority therefore dismissed the Appeal filed by the Petitioner 8 herein. 7. Aggrieved by the said order dated 22.4.1997 passed by the Deputy Collector, the Petitioner filed a Revision Application which came to be numbered as Tenancy Revision Application No. 52/97 before the Administrative Tribunal, Goa. The said revision application was heard by the Tribunal and by the impugned order dated 3.6.2004 came to be rejected. The Tribunal thereby has confirmed the findings of the Mamlatdar as well as the findings of the Appellate Authority and Deputy Collector. 8. I have heard the learned Counsel for the parties. On behalf of the Petitioner, it is sought to be contended by the learned Senior Counsel Shri S. D. Lotlikar that the authorities below have merely relied upon the Certificate dated October, 1985 bearing No. 1630/85 and Divergence Certificate dated 10.9.2001 without appreciating that the certificates do not disclose as to on what basis the certificates are granted and therefore to base the injunction order on such certificates was erroneous. Learned Senior Counsel further submitted that since it is the case of the Respondent No.1 in the application that she has discontinued cultivating in Survey Nos.90/5 and 90/6 as the injunction order was not granted by the Civil Court in respect of said Survey numbers, the authorities have erred in granting the injunction in respect of the said survey numbers on the erroneous assumption that the Respondent No.1 has continued in possession of the said survey numbers. 9 9. Learned Senior Counsel however fairly submitted that in respect of Survey No. 87/2, the Petitioner has no objection to the injunction operating pending the proceedings since it is operating from the year 1988 against the Petitioner. Moreover in the Revenue record also the name of Jose Custu Fernandes is recorded as tenant in respect of property bearing survey No.87/2. Learned Counsel submitted that the grievance of the Petitioner is in respect of the other two survey numbers being survey Nos. 90/5 and 90/6. Learned Counsel therefore submitted that in so far the grant of injunction in respect of survey Nos.90/5 and 90/6 the above Petition is required to be allowed and the injunction granted in respect of the said survey numbers is required to be vacated. 10. Per contra, Shri G. Shirodkar, the learned Counsel appearing on behalf of the Respondents supported the findings of the authorities and submitted that when three authorities had concurrently held that the Respondent No.1 has made out a prima facie case for grant of injunction, this Court should not interfere with the impugned Order in its writ jurisdiction. Learned Counsel further submitted that there is no material on record produced by the Petitioner in support of his case that the said Bhiku Vernekar alias Buki Vernekar is a person different than the said Jose Custu Fernandes. Learned Counsel therefore submitted that the reliance of the authorities below, on the said certificates is justified. Learned Counsel lastly submitted that the matter at present arises out of the temporary injunction application filed by the Respondent No.1 and the application filed by the Respondent No.1 under 10 Section 8-A of the Agricultural Tenancy Act, 1964 is yet to be decided and therefore it would be open for the Petitioner to urge all the contentions before the Mamlatdar. 11. I have heard the learned Counsel for the parties. Here it is pertinent to note that in the application under Section 8-A of the Agricultural Tenancy Act, 1964, the Respondent No.1 claimed to be the tenant in respect of all the three survey Nos. 87/2, 90/5 and 90/6. The Respondent No.1 in support of her case has relied upon the revenue records in respect of the said survey numbers. In so far as survey No. 87/2 is concerned, there is no difficulty and as fairly submitted by Shri Lotlikar that the Petitioner has also no grievance in respect of injunction operating in respect of the said survey number as the same is operating since the year 1988, and in the revenue record also the name of Jose Custu Fernandes appears as a tenant. It is only in respect of survey Nos. 90/5 and 90/6 that the problem arises as the revenue entry in the occupants column the name of Bhiku Vernekar alias Buki Vernekar appears. The Respondent No.1 in support of her case that the said names appearing are the aliases of the said Jose Custu Fernandes, has relied upon the certificate dated October, 1985 and the Divergence Certificate dated 10.9.2001. The Courts below have thought it fit to rely upon the said certificates as no contra material has been placed on record by the Petitioner to disbelieve that the name mentioned in the said certificates were not of the same person i.e. Jose Custu Fernandes. The Petitioner in fact has not even denied that the person by name Jose Custu Fernandes is a different person than the original tenant. In the absence of any material produced by the 11 Petitioner to dislodge whatever has been claimed by the Respondent No.1, in my view the authorities below were right at the prima facie stage to rely upon the said certificates and come to a conclusion that the said Jose Custu Fernandes was known by Bhiku Vernekar alias Buki Vernekar. Whether the said certificates had been issued by the proper authority or whether the certificates had been issued by following the proper procedure can be urged by the Petitioner at the time of the hearing of the said application under Section 8-A of the Agricultural Tenancy Act, 1964 filed by the Respondent No.1 herein. However, prima facie at least the case sought to be substantiated by the Petitioner relying upon the said certificates cannot be disbelieved. 12. In so far as submission of the learned Senior Counsel Shri Lotlikar that it is the case of the Respondent No.1 that she has discontinued the cultivation of Survey Nos.90/5 and 90/6 is concerned and therefore implicit in the said fact is the fact that Respondent No.1 was not in possession and therefore the authorities below have erred in granting the injunction. In my view there is no merit in the said submission, as can be seen from the pleadings and it is also the case of the Petitioner herein that the said three survey numbers form one unit. It would also have to be appreciated that the Respondent No.1 had filed the suit in which the injunction came to be granted by the Trial Court restricted to survey No.87/2 and in the application under Section 8-A of the Agricultural Tenancy Act, 1964 it has been averred by the Applicant i.e. Respondent No.1 that she had stopped cultivating as no injunction was 12 granted in respect of said two survey numbers, it was apprehending some trouble she has discontinued the cultivation of the said two survey numbers. On account of this statement no conclusion can be drawn that the Respondent No.1 has ceased to be in possession of survey Nos.90/5 and 90/6 and therefore had stopped cultivating. The statement would have to be read in context of the denial of injunction to the Respondents in respect of the said survey numbers. In respect of possession of the suit properties the authorities have relied upon the documentary evidence which was on record in the form of the revenue extract and have come to the conclusion that the Respondent No.1 is in possession of the said suit properties. In my view the authorities were right in arriving at the said finding considering the documentary evidence which was on record, which the authorities below have thought it fit to rely upon. 13. Having considered the orders passed by the authorities below and finding recorded therein, in my view the exercise of discretion by the authorities cannot be faulted with. The authorities below were right in concluding that the Respondent No.1 has made out a prima facie case and that the balance of convenience was also in favour of the Respondent No.1. In that view of the matter, I do not find any merit in the above Petition which is accordingly dismissed. Rule discharged. 13 14. Needless to say that the findings recorded by the authorities below and confirmed by this Court by the present order are only for deciding the application for temporary injunction. The main application being the application under Section 8-A read with 7 of the Agricultural Tenancy Act, 1964 would therefore be decided by the Mamlatdar on its own merits and in accordance with law influenced by the impugned orders or by the instant order. The proceedings before the Mamlatdar are expedited and are directed to be disposed of within a period of one year from date. R. M. SAVANT, J. at*