JUDGMENT - Dr. E.S. DA SILVA, J. :---The challenge in this petition is the judgment of the Administrative Tribunal dated 21st May, 1990 in Mundkar Revision Application No. 27/84 which has affirmed the judgment and order of the Additional Collector of Goa dated 30th June, 1984 in Case No. Mund/AC/APL/61/83. 2. By the aforesaid judgment the learned Additional Collector has unsettled the order of the Mamlatdar dated 8th June, 1983 in Case No. MUND/29/74 whereby the application of respondents Nos. 1 to 5 (hereinafter called the respondents) to be declared as mundkars of the petitioners was dismissed and the said respondents were declared as not mundkars. 3. The brief facts of the case are that in 1973 the petitioner filed a civil suit being No. 98/73 against the respondents for their eviction from a dwelling house allegedly belonging to them and situated at Comba, Margao and recovery of its possession on the ground that the respondents were trespassers. In their written statement the respondents raised the issue of mundkarship. This was at the time the Mundkar Act, 1971 was in force and in terms of that Act when such a plea was raised by the defendant in a civil suit the Civil Judge was bound to frame an issue and refer the matter to Mamlatdar for adjudication by staying the suit till the final decision of the Mamlatdar in terms of its section 3. By order dated 8-6-1983 the Mamlatdar decided this issue against the respondents and held them as not mundkars. Aggrieved by this order the respondents appealed to the Additional Collector who by his judgment and order dated 30-6-1984 allowed the appeal and declared the respondents as mundkars in respect of the dwelling house. Against this decision the petitioners preferred a revision to the Administrative Tribunal which by the impugned judgment and order dated 21-5-1990 rejected the revision and upheld the judgment of the Mamlatdar. 4. The Mamlatdar while rejecting the respondents application has held that although there was evidence to suggest that the suit house has been constructed and was belonging to the respondents, however, it could not be said as being protected by the provisions of the 1971 Act which was according to him applicable in this case in view of the provision of section 41(c) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called the 1975 Act). The reason was that the evidence produced was not sufficient to show that the respondents were doing any watch and ward duties or any agricultural works for the petitioners in the property wherein the dwelling house was located. Thus the Mamlatdar has concluded that though the respondents had come to reside in the suit house prior to the appointed date with the consent of the petitioners, they were not doing any watch and ward duties nor any agricultural works for the petitioners. In appeal the Additional Collector took the view that irrespective of the fact of the respondents not doing watch and ward duties in the property of the petitioners the admitted position was that they were staying in the suit house for over 25 years or at least over 15 years with the consent of the petitioners. Therefore the only point to be examined was whether the application of the respondents could have been rejected by the Mamlatdar based only on the findings that the respondents were not doing the watch and ward duties. The Additional Collector held that as per the 1971 Act the performance of duties of watch and ward was one of the requirements for a person to be considered as mundkar. However, this Act which was a temporary Act meant to remain in force for a limited period was replaced by the 1975 Act which came into force when proceedings in the case were going on in the Mamlatdars Court. As per the new Act the obligation of the watch and ward duties was no longer a requirement for a person to be considered as mundkar. This benefit to the mundkars was not intended to be given only to those cases which were filed after the new Act came into force and denied to others as it was a benefit given to all the mundkars. Therefore the Mamlatdar was bound to take this point into consideration and since he failed to do so the order could not stand and accordingly the appeal was allowed and the respondents were declared as mundkars. Therefore the Mamlatdar was bound to take this point into consideration and since he failed to do so the order could not stand and accordingly the appeal was allowed and the respondents were declared as mundkars. In revision the Administrative Tribunal has supported this stand taken by the Collector and has held that once it was shown that the respondents were living in the dwelling house more than one year prior to the appointed date, the fact of the petitioners having instituted the suit for eviction as trespassers would not take the respondents outside the purview of Explanation to section 2(p) of the 1975 Act. The Tribunal further held that the petitioners had nowhere claimed that they had succeeded in obtaining a decree for the respondents eviction prior to the appointed date. Therefore a mere filing of the eviction case could not ipso facto deprive the respondents from their right of being declared as mundkars. Therefore the respondents position irrespective of the suit could not be said to be unlawful. Hence on the admitted facts the Tribunal opined that the Additional Collector was right in deciding the case in favour of the respondents as per the provisions of 1975 Act. 5. Shri Ferreira, learned Counsel for the petitioners, after taking me through the order of the Mamlatdar as well as the judgment and order of the Additional Collector has submitted that section 3 of 1971 Act has created a statutory duty on the Court to stay a suit filed by a bhatkar when the defendant raised the plea of mundkarship and refer the issue of mundkarship to the adjudication of the Mamlatdar. Thus, according to the learned Counsel, on account of this section 3 of 1971 Act the civil suit instituted by the petitioners in the year 1973 had to be stayed. Therefore on account of that stay they had not been able to succeed in their attempt to obtain the respondents eviction from the dwelling house prior to the appointed date which is 12-3-1976. The learned Counsel urged that in such circumstances the petitioners could not be expected to legally or factually evict the respondents from the premises before 1976 when the law itself has restrained the Court to go on with the proceedings and enjoined it to stay the suit. The learned Counsel urged that in such circumstances the petitioners could not be expected to legally or factually evict the respondents from the premises before 1976 when the law itself has restrained the Court to go on with the proceedings and enjoined it to stay the suit. It was further contended by the learned Counsel that the 1971 Act was to last for a period of six years only but before its expiry the said Act was replaced by the 1975 Act. Section 41 of the Act has expressly saved the proceedings instituted under the previous Act. Therefore, the learned Counsel submitted, the application of the respondents to be declared as mundkars had to be adjudicated and decided by the Mamlatdar under the provisions of the old Act of 1971. In this respect the learned Counsel invited my attention to a decision of the Division Bench of this Court in the case of (Shri Joseph Almeida another v. Shri Krishnanath Narayan Prabhu 3 others)1, 1990(1) G.L.T. 251 . This was for the purpose of showing that section 41 of the 1975 Act has saved the rights of the parties accrued during the pendency of the 1971 Act as well as the proceedings instituted during that period. The learned Counsel submitted that this decision has concluded the point sub judice before the Additional Collector and the Tribunal which have obviously misinterpreted the law in breach of the principles laid down in the aforesaid judgment. Without prejudice the learned Counsel has advanced further submission to the effect that even assuming that the 1975 Act was to be applied in toto even so the respondents could not have availed of the benefits contained in the Explanation to section 2(p) of the Act which is like a deeming provision which leads to a presumption of lawful consent of an occupant of premises belonging to the landlord in case he is occupying the same prior to the appointed date and the landlord has failed to institute proceedings for his eviction on the ground of his being trespasser one year prior to the said date or having so instituted has not succeeded in obtaining his eviction from the premises. The learned Counsel further submitted that in the instant case admittedly the petitioners had instituted the suit against the respondents in the year 1973 and although the same had not come to an end before the appointed date this fact by itself would become irrelevant for the purpose of ruling out the possibility of the respondents claiming that they were covered by the said Explanation. Reliance was placed by the learned Counsel in this regard in the decision of the Single Judge of this Court in the case of (Mrs. Ana Maria Augusta DMello another v. Smt. Ladu Shetkar others)2, 1989(2) G.L.T. 64, which has held that the consent of the Bhatkar is deemed to have been terminated with the very filing of the suit of a trespasser prior to the appointed date. Thus, the impact and consequence of filing of suit for eviction more than one year prior to the appointed date and prosecution thereof is sufficient to conclusively prove that no consent at all existed on the part of the bhatkar and therefore no lawful possession of the premises with the consent of the bhatkar could be proved. The consequence was that the defendant was not entitled to be declared as mundkar. My attention was drawn by the learned Counsel to one more judgment of this Court, this time having been delivered by a Division Bench in the case of (Bhaguirati Narayan Borkar another v. Ema Lima Cota Furtado others)3, 1992(2) Bom.C.R. 39 , which has upheld the view taken by the Single Bench and held with regard to the deeming provision in Explanation I to section 2(p) of the 1975 Act and the availability of protection from eviction on that count that mere institution of a suit was all that was necessary for taking the claim of the defendant of being mundkar out of purview of the section. 6. Mr. Talaulikar, learned Counsel for the respondents, has relied on the averments made by the petitioners in the plaint wherein they have acknowledged that the respondents were staying in another property right from 1956 although in a hut built by them and that in 1958 the respondents sought their permission to reside in the rear portion of the petitioners house which collapsed in 1959. In the aforesaid plaint the petitioners have further stated that at that time the respondent No. 1 was allowed to temporarily reside in a shed situated in the property being a maid servant and rendering services to them. In 1963, however, the said respondent No. 1 left the services of the petitioners and therefore they called upon him to vacate the shed and dismantle it which the respondents promised to do and did not comply. The petitioners then terminated the licence and filed a suit in 1973. The learned Counsel has also relied on the written statement of the respondents wherein they have denied all the averments of the petitioners in their plaint and stated that the dwelling house had been constructed by the late husband of the respondent No. 1 wherein they were staying as a matter of right. The respondents have also denied that they have been allowed to occupy the said dwelling house on temporary basis only because the respondent No. 1. was a maid servant rendering services to the petitioner. The learned Counsel then submitted that this would show that the occupation of the dwelling house by the respondents was lasting for many years as a matter of right. Mr. Talaulikar, however, fairly conceded that the position in law as claimed by the petitioners learned Counsel could not be assailed and therefore in his view the provision of 1971 Act was to be applicable to the proceedings before the Mamlatdar while determining the question as to whether the respondents were or not entitiled to be declared as mundkars. 7. There is indeed a lot of substance in the submissions of the petitioners learned Counsel. Admittedly the civil suit instituted by the petitioners in 1973 for the eviction of respondents as trespassers was stayed by the Court in compliance with legal requirements of section 3 of 1971 Act in view of the plea of mundkarship raised by the respondents. Consequent upon that plea the Court has framed the issue of mundkarship and referred the matter for adjudication of the Mamlatdar as per the law. Therefore the suit was not able to proceed for final adjudication of the petitioners prayer on its merits. In the meantime the old 1971 Act was replaced by the new Act of 1975 which laid down different requirements for the purpose of declaration of a person as a mundkar. Therefore the suit was not able to proceed for final adjudication of the petitioners prayer on its merits. In the meantime the old 1971 Act was replaced by the new Act of 1975 which laid down different requirements for the purpose of declaration of a person as a mundkar. However, section 41 of the new Act expressly saved the old proceedings instituted during the pendency of the 1971 Act. Thus, the respondents declaration as mundkars by the Mamlatdar had to be done in the light of the provisions of the old Act. This position has been clearly acknowledged in the abovementioned judgment of Division Bench in Joseph Almeidas case. Hence the findings of the Additional Collector and the Tribunal on the contrary to the extent they have held that it was not the 1971 Act but instead the 1975 Act that should be applied is manifestly erroneous and wrong and on this count alone the petitioners were bound to succeed. On the other hand the learned Counsel for the respondents has conceded that position. Shri Talaulikar has, however, submitted that consequent upon the quashing of the order of the Tribunal the matter should be remanded to the Additional Collector because the record shows that the Additional Collector did not give a finding on the question as to whether the evidence available on record was sufficient to justify the finding given by the Mamlatdar that there was no material to support the respondents claim that they were doing the duties of watch and ward in the petitioners property. According to the learned Counsel there was abundant evidence in this regard to prove the contrary and even this point was raised by the respondents in their appeal before the Additional Collector. Further the respondents advocate made submissions before the Additional Collector on this point and the Additional Collector himself has made a reference to these submissions. The learned Counsel therefore urged that it was in the fitness of things that once the Additional Collector has clearly failed to give a finding on this question justice demands that an opportunity should be given now to the respondents to secure from the Additional Collector a clear-cut finding on this ground of his appeal. I am afraid that it is impossible to accede to this request. I am afraid that it is impossible to accede to this request. Admittedly the Additional Collector has disposed of the respondents appeal on the ground of the applicability of 1975 Act thus deciding the matter on a pure question of law. The other ground of the wrong finding pleaded by the respondents with regard to their not being watch and ward of the property was not apparently prosecuted by them in the appeal. Indeed there is a reference made by them which is reflected in the judgment of the Additional Collector but that reference by itself does not mean or suggest that the ground was pressed by the respondents. On the contrary a bare reading of the judgment persuades me to conclude that the said ground was instead given up and the respondents have relied more on the fact that the said requirement was not any more relevant in the context of the new Act of 1975. Therefore the respondents put more stress on the fact that according to 1975 Act the mere fact of their being in occupation of the suit dwelling house prior to the appointed date admittedly with the consent of the petitioners was by itself sufficient for them to be declared as mundkars of the suit dwelling house. It is in pursuance of this line of arguments that it appears that the Additional Collector has decided the appeal on this ground alone without considering the other grounds raised by the respondents in their appeal. The decision of the Additional Collector has been thereafter affirmed by the Administrative Tribunal on the same grounds and thus these two decisions which are before me in this writ petition have to be viewed in the light of the reasoning on which they are based. This writ Court in the exercise of its supervisory jurisdiction under Articles 226 and 227 of the Constitution is not competent to go at this stage into the merits of the evidence adduced by the respondents before the Mamlatdar which according to the learned Counsel would justify a different finding to be given by him with regard to the watch and ward duties purportedly performed by the respondents in the petitioners property. Thus, when the Additional Collector inspite of this ground having been raised by the respondents in their appeal failed to give any finding on the same the respondents could very well invite that finding by filing cross-appeal or cross-objections for the purpose. It seems that the respondents did not try to avail of this remedy in view of the fact that they had succeeded in the appeal on different grounds. Be that as it may the fact remains that the hands of this writ Court in my judgment are tied and I do not feel it legal nor proper to entertain the respondents prayer for remand. 8. In this view of the matter the petition is bound to succeed. The judgment and the order of the Additional Collector and the Administrative Tribunal dated 30th June, 1984 and 21st May, 1990 are hereby quashed and set aside. Rule accordingly made absolute in terms of prayers (a) and (b). There will be, however, no order as to costs. Petition allowed. *****