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2001 DIGILAW 719 (BOM)

RAVINDRA H. BHANDARI v. SURYA JENO MASHELKAR

2001-08-31

P.S.PATANKAR

body2001
JUDGMENT ;- This petition purports to be under Article 226 and/or Article 227 of the Constitution of India and prays for setting aside the order dated 31st of August, 1995 passed by the Deputy Collector and Sub-Divisional Officer, Panaji, Goa and the order passed by the Administrative Tribunal, Panaji in the Revision Application dated 15-1-1996. 2. The respondent No. 1 filed an application under Section 8A of the Goa, Daman and Diu Agricultural Tenancy Act, 1964, (hereafter referred as Tenancy Act) praying for permanent injunction restraining the defendants from interefering with the respondent No. 1s possession of the suit property. He claimed that he is tenant of the land known as "Agali Xir" or "Curnachi Xir", surveyed under Nos. 11/1, 3/7 and 4/4 situated at Azossim village and he is paying rent of Rs. 1200 per year. He further claimed that nearly 1500 cashew trees are grown on the said field apart from some other like mango trees, jackfruit trees, etc. He claimed that on 31-12-1994, at the instance of the petitioner No.1, five persons tried to trespass into the said land and commit mischief. He also filed application for temporary injunction. The Mamlatdar of Tiswadi at Panaji heard the same and rejected the said application by order dated 16th of March, 1995. However, in the body of the order, he noted that the application itself was not maintainable, as it cannot be said that the respondent No.1 was in possession of the said land. Being aggrieved, the respondent No. 1 preferred an appeal and the learned Sub-Divisional Officer, Panaji, by order dated 31st of August, 1995, set aside the said order and continued the ad interim injunction, which was granted on 5-1-1995. He also set aside the order passed by the Mamlatdar on 16-3-1995. He came to the conclusion, on appreciation of evidence, that it cannot be said that the respondent No. 1 was not in possession of the said land. This was challenged by these petitioners by filing revision before the Administrative Tribunal. The Administrative Tribunal again considered the evidence and affirmed the finding that the respondent No.1 was in possession of the said land and cultivating the same. This was challenged by these petitioners by filing revision before the Administrative Tribunal. The Administrative Tribunal again considered the evidence and affirmed the finding that the respondent No.1 was in possession of the said land and cultivating the same. What is now contended is that it was an error to come to the conclusion that the respondent No. 1 had established his possession of the suit land as tenant and the application filed by respondent No. 1 itself was prima facie not maintainable. It is submitted that from the record produced, it cannot be said that the respondent No. 1 has proved his possession. 3. What is produced on record by the respondent No. 1 is the licences to extract juice from the cashew apples. That licence is from 1969 to 1994. However what is pointed out is that the respondent No. 1 has also stated that he was distiling liquor from the said cashew apples juice and even, according to respondent No.1, he was not having any licence for distiling the said liquor, as required under the Excise Act. Hence his case is false. It is also pointed out that the licences to extract the juice from the cashew apples, which are produced, do not show that he was collecting or taking the cashew apples or fruits from Survey No. 11/1, 3/7 and 4/4. It is submitted that he is also in possession of two other survey numbers in which the cashew trees are standing, i.e. Survey No. 4/7 and 4/8 in the village Azossim. Hence they related to those survey numbers. 4. It is not possible to accept that merely because he has stated that he is distiling the liquor and has not produced the licences required under the Excise Act, it can be concluded that he is not in possession of Survey No. 11/1, 3/7 and 4/4. The law will take its own course in that respect and he can be even punished, if found guilty. Further, continuously licences are granted to him to extract the juice from cashew apples since 1969 to 1994. This exactly corresponds with the case of respondent No. 1 that he became the tenant in 1969 and since then he is extracting the juice under the licences granted to him, which are also under the• Excise Act. Thus till the filing of the application those are licences. This exactly corresponds with the case of respondent No. 1 that he became the tenant in 1969 and since then he is extracting the juice under the licences granted to him, which are also under the• Excise Act. Thus till the filing of the application those are licences. The non-mentioning of the Survey No. 11/1, 3/7 and 4/4 in the said licences is not relevant. No such column is pointed out. As far as the claim made that the respondent No. 1 is also having two other survey numbers 4/7 and 4/8 in which cashew trees are standing is concerned, the record shows that both these survey numbers are small, totally admeasure 4510 square metres. The cashew grove is not shown. Further, the record shows that there are hardly any cashew tree standing on those lands. Therefore, prima facie, it can be said that these licences to extract the juice from the cashew apples is taken by the respondent No.1 as he was in possession of 11/1, 3/7 and 4/4 in which there is cashew grove. 5. The respondent No.1 has produced entry made in his favour in Form No. III. It has been pointed out that the said entry was made in 1972. The said revenue entry also showed the names of three brothers of respondent No. 1. The petitioner challenged the said entry in 1978, but the challenge was limited and only against the entry made in favour of those three brothers, It was not challenged as far as this respondent No. 1 is concerned. His name came to be included in the said challenge for the first time in 1985. It is averred that the petitioners tried to amend the said application challenging the entry immediately when they came to know about it. This cannot be accepted since the entry itself indicated the four names. There must be some other reason why this was not done by the petitioners earlier. The respondent No.1 has pointed out that this was not done since he was in possession and the relations of the respondent No. 1 were cordial with them. Therefore, the fact remains that there is an entry in favour of the respondent No.1 made in the land record and it stands since 1972. There was delay in challenging as far as respondent No.1 was concerned. Those proceedings are still pending. Therefore, the fact remains that there is an entry in favour of the respondent No.1 made in the land record and it stands since 1972. There was delay in challenging as far as respondent No.1 was concerned. Those proceedings are still pending. It might have been challenged by the petitioners, but merely because of the said challenge, it cannot be said that the respondent No.1 was not in possession. On behalf of the respondent No.1, two Affidavits were produced of those persons who were working in the said fields, and collecting the cashew apples and looking after those cashew trees. The petitioners have also produced two Affidavits, one is that of a worker and the other is of the worker engaged for repairing the compound wall. Both the Courts below have relied upon the Affidavits produced on behalf of the respondent No. 1 and I find no reason in this Writ petition to take a different view in the matter, in that respect. The petitioners also tried to point out that they have sold certain cashew nuts to a party by name Subhash Atmaram Vatangui. The receipts in that respect are produced. They do not show that these cashew nuts are for the fruits which are collected from the Surveys Nos. 11/1, 3/7 and 4/4. They cannot help the petitioners in any manner. What is now contended is that the respondent No.1 has produced no lease deed, or any rent receipts and, therefore, his case cannot be accepted and it cannot fall under Section 8A. In fact, this has to be considered while considering the merits of the matter. However, considering the definition of a lease contained in Section 2(13) of the Tenancy Act, 1964, it is not necessary to have written lease. Further, there is clear averment made in the application itself that the respondent No.1 was paying rent of Rs. 1200/- per year in cash. It cannot be accepted that respondent No. 1 has failed to show his possession and the case prima facie cannot fall under Section 8A. Therefore, in my opinion, there is no ground to upset the concurrent findings recorded by the two authorities below and granting the temporary injunction in favour of respondent No.1. 6. Writ Petition rejected. Rule discharged. Petition dismissed.