Case: SITABAI SHANTARAM TALAWNEKAR  Vs. CUSTODIAN OF EVACUEE PROPERTY

2. The subject matter of dispute relates to property known as Conde-Mayem. The said property, covered by Survey Nos.113, 116, 114 and 115/1, 2 and 3, is situated at Mayem, Bicholim in the State of Goa. The said property originally belonged to one Eurico de Soza Joquem Noroana. After the liberation of Goa the said property was declared as evacuee property and same was under the supervision of the Custodian of Evacuee Property, under provisions of the Goa, Daman and Diu Administration of Evacuee Property Act, 1964 (for short, Evacuee Property Act). The appellants claim to be in possession of the aforesaid properties as tenants of the Custodian. When there was a dispute between the predecessors of the appellants and the 2 nd respondent (now represented by his legal heirs), the predecessors of the appellants filed Civil Suit No.126 of 1984 on the file of Civil Judge, Senior Division, Bicholim praying for permanent injunction restraining the respondent-defendant from interfering with the suit property. On 15.07.1985 the Civil Judge, Senior Division, Bicholim granted ex-parte injunction in the civil suit and it is stated that the appeal filed before the District Judge by the 2 nd respondent ended in dismissal. On 05.11.1984 respondent no.2 filed an application before the Court of Custodian of Evacuee Property, Panji, claiming that he was in possession of the portion of cashew garden and the appellants were trying to evict him as he was not paying the exorbitant rent demanded by the appellants. Vide order dated 21.01.1986 the Custodian of Evacuee Property dismissed the application of respondent no.2. Alleging that inspite of injunction orders obtained by the appellants in Civil Suit No.126 of 1984, respondents were interfering with the property in question, the appellants got police protection from the trial court vide order dated 29.08.1989. Thereafter the 2 nd respondent filed Regular Civil Suit No.60 of 1990 in respect of portion of property covered by Survey Nos.114 and 116 and the said suit ended in dismissal vide order dated 18.12.1992.3. As per Section 56 of Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter referred to as, the Tenancy Act), the Act was not applicable in respect of evacuee properties. By virtue of Goa Administration of Evacuee Property (Amendment) Act, 1989, the provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 were made applicable to the evacuee properties. In view of such amendment, respondent no.2 filed an application under Sections 7 and 8-A of the Tenancy Act seeking declaration that he is a tenant of the portion of the suit properties covered in Civil Suit No.126 of 1984. The primary authority, i.e., Joint Mamlatdar-I, Bicholim, Goa vide order dated 30.08.2002 allowed the application declaring the 2 nd respondent as a tenant. The said order is confirmed by the appellate authority vide order dated 08.01.2003 and further confirmed by Administrative Tribunal vide order dated 30.12.2008. When the appellants have filed writ petition in W.P.No.142 of 2009 questioning the aforesaid orders, learned Single Judge of the High Court of Bombay at Goa dismissed the writ petition vide order dated 08.05.2009. When the said order is appealed before the Division Bench, by way of Letters Patent Appeal, same is dismissed as not maintainable.

Reasoning:
9. From a perusal of the impugned orders passed by the primary authority, appellate authority and the revisional authority and the order of the learned Single Judge of the High Court, we are of the view that the claim of the 2 nd respondent is allowed without recording any valid reasons based on acceptable evidence to prove the tenancy as claimed by him. The 2 nd respondent has not claimed tenancy directly from the Custodian, in absence of which he cannot have the benefit of Amending Act 19 of 1989. Amending Act 19 of 1989 which amends the Goa, Daman and Diu Administration of Evacuee Property Act, 1964 and the Goa, Daman and Diu Agricultural Tenancy Act, 1964 makes it clear that tenancy means the relationship existing between tenant and the . Custodian. The 2 nd respondent has not claimed tenancy on the basis of relationship existing with the Custodian. Further, by virtue of Section 3, as amended, the provisions of Tenancy Act are made applicable only to agricultural land and tenancies created by the Custodian. The said provision is a provision overriding other laws. Even as per the claim of the 2 nd respondent he was not in possession at the time of making the application but it was his case that he was dispossessed after the appellants predecessors obtained injunction orders in Civil Suit No.126 of 1984. As such, he has claimed to be a deemed tenant within the meaning of Section 4 of the Tenancy Act. To establish deemed tenancy under Section 4 of the Tenancy Act, one has to prove that person claiming deemed tenancy was in possession on or after the 1 st of July 1962 and before the commencement of the Act, i.e., 08.02.1965. The 2 nd respondent has not filed any acceptable documentary evidence to prove that he was in possession during the relevant time to claim tenancy. Even to claim sub-tenancy or transfer from the predecessor of the appellants, who was admittedly tenant from the Custodian under the provisions of the Evacuee Property Act, there was no prior approval from the Custodian as contemplated under Section 32 of the Evacuee Property Act. The primary authority, though referred to various objections raised by the appellants herein, has allowed the application based on the alleged oral settlement by the appellants predecessor and the 2 nd respondent. Such oral settlement which is disputed by the appellants cannot be the basis for grant of tenancy rights on the application made by the 2 nd respondent. Even the appellate and revisional authorities have not considered the relevant aspects and disposed of the appeal and revision. Learned Single Judge of the High Court, by giving credence to the inspection report and excise licences obtained by 2 nd respondent, has confirmed the order passed by the authorities.