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2001 DIGILAW 901 (BOM)

MARIA FERNANDES v. ISHAPREMA NIKETAN

2001-10-25

V.K.BARDE

body2001
JUDGMENT:- This Writ Petition is filed against the Order dated 8th March, 1996, passed by the Administrative Tribunal of Goa, Daman & Diu at Panaji, in Mundkar Revision Application No. 15/93. 2. The facts giving rise to this Writ Petition indicate a chequered history of this litigation right from 1970. The petitioner was residing in a house in the property known as "MANICHE" of "ANTO DAS CASAS" or "MAUXICHEM BHATT", situated at Goa Velha and registered in the Land Registration Office of Ilhas under No. 5317. This property belonged to Shri Andre Benicio Clemente Jose Francisco DSouza of Goa Velha. There was a mud house in the said property and the petitioner was residing in that house. The said owner gifted the property to the respondent No.1 under a Gift Deed dated 7th June, 1968. Shri Benicio died on 1st November, 1969. The respondent No.1 thereafter on 8th October, 1970, served a notice on the petitioner through a lawyer, alleging that the petitioner had constructed some additional premises around the mud house and called upon the petitioner to pull down the additional premises and to vacate the mud house and to hand over vacant possession of the same. The petitioner replied the notice on 20th October, 1970 and contended that she was residing in the property as mundkar and she also denied that she had carried out any new construction or had occupied any new area from that property. As the petitioner did not vacate the premises, the respondent No. 1 filed Civil Suit No. 6/71/C in the Court of Civil Judge, Senior Division at Panaji. 3. Thereafter, the respondent No. 1 filed an application before the Mamlatdar, Panaji, for a declaration that the petitioner was not a mundkar. After hearing that application, the Mamlatdar returned the finding that the petitioner was not a mundkar. However, meanwhile, the Goa, Daman and Diu Mundkars (Protection From Eviction) Act, 1975, (hereinafter referred to as the "Mundkar Act of 1975") came into force and, therefore, the suit was transferred from the Court of the Civil Judge, Senior Division, Panaji, to the Mamlatdar, Panaji. Later on the suit was re-transferred to the Court of the Civil Judge, Senior Division, Panaji, by the Mamlatdar. Later on the suit was re-transferred to the Court of the Civil Judge, Senior Division, Panaji, by the Mamlatdar. When this suit was pending before the Court, the present petitioner filed Application No. MND/9/1980 in the Court of the Mamlatdar of Tiswadi Taluka, Panaji, Goa, for a declaration that she was a mundkar of the said mud house, under the provisions of the Mundkar Act of 1975. One Sadashiv S. Sesovnath had also filed, a similar application, being MND/10/80, with respect to other house in the said property against the respondent No.1. 4. Both these applications were heard together and the learned Mamlatdar, Panaji, by his common Judgment dated 9th March, 1988, held that the present petitioner failed to prove that she was a mundkar. 5. The petitioner then filed Mundkar Appeal No. MND/AC/APPL/49/88. The said Sadashiv also had independently filed an appeal against the Judgment of the Mamlatdar. The learned Addl. Collector, North Goa District, Panaji heard the appeals and by common Judgment dismissed both the appeals. Thereafter the present petitioner as well as Sadashiv filed Revision Applications before the Administrative Tribunal and the Revision Applications also came to be dismissed by common Judgment on 8th March, 1996. Hence, the present Writ Petition. 6. Heard the learned counsel for the petitioner. The main contention of the petitioner is that she was residing in the mud house with the consent of the late Shri Benicio and she is a mundkar. In support of this contention the learned counsel for the petitioner has relied upon the definition of the term "mundkar" given under Section 2(p) of the Mundkar Act of 1975. She has pointed out that to claim that a person is a mundkar it has to he established (1) that the residence or occupation of the dwelling house should be lawful by virtue of consent of the bhatkar, or of the person acting or purporting to act on behalf of the bhatkar; (2) that such residence should be with fixed habitation; and (3) that the person resides in a dwelling house, with or without obligation to render any service to the bhatkar. In the present case, the petitioner had obtained the consent of Shri. Benicio for occupying the mud house. She was occupying the said premises prior to the date of the Gift Deed. In the present case, the petitioner had obtained the consent of Shri. Benicio for occupying the mud house. She was occupying the said premises prior to the date of the Gift Deed. The respondent No. 1 was very well aware that she was occupying the said premises with the consent of Shri. Benicio. Even in the plaint of Regular Civil Suit No-6/71, it is specifically mentioned by the respondent No. 1 that she was a licensee. So, it cannot be said that she was occupying the premises without the consent of the Bhatkar Shri. Benicio. It is also amply proved by the petitioner that she is residing in the said premises continuously since prior to 1968 and in such circumstances she ought to have been held as mundkar. The learned counsel for the petitioner has contended that her case falls under the definition of the term "mundkar" under Section 2(p) of the Mundkar Act of 1975. It is not necessary to refer to the explanation given under Section 2(p) of the Mundkar Act of 1975, for considering whether she can be deemed to be a mundkar. That contingency does not arise in the present matter. 7. The relevant portion of the definition of the term reads as follows :- “(p) mundkar means 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.." The Explanation reads as follows :- "Explanation. A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person." 8. When the Mamlatdar, the First Appellate Court and that of the Additional Collector, have on the basis of facts brought before them, held that the petitioner has failed to prove that she was a mundkar and then when the Administrative Tribunal in revision has confirmed these findings, I would say that there is very little scope for the High Court to go into that question again. It is only to be seen whether this finding of fact is perverse, or without taking into consideration the evidence which was there on record. The learned counsel for the petitioner has contended that the petitioner has proved that there was consent of the late Shri Benicio and that it is to be seen whether that aspect of the case is proved. 9. When the matter was before the Mamlatdar for recording the evidence, it is worth noting that the petitioner did not lead any fresh evidence in her case No. MND/9/80. On the contrary, she relied on the evidence which she had led in the previous case filed by the respondent No. 1 for declaration that she was not a mundkar. Those were the cases No. MND/12172 and MND/13172 with respect to the present petitioner and the said Sadashiv. The Marnlatdar has observed in his Judgment that the petitioner had not made it clear as to how she came to reside in the suit house. It appears that the case of the petitioner was that prior to the marriage she was residing with her father at a short distance from the suit premises. However, when her husband expired, she returned to her fathers house. Her father was working on the property of Shri Benicio and then with the consent of Shri Benicio she started to reside in the suit bouse. From the Judgment of the Mamlatdar it appears that she could not make a clear statement as to when she obtained the consent from Shri Benicio and when she started residing in the house. She examined three witnesses. However, they were only stating that she was residing in the said house, but they were not able to state anything about the consent by Shri Benicio. So, on the basis of these circumstances, the Mamlatdar held that she failed to prove that she was residing in the house with the consent of the bhatkar. 10. The learned Addl. However, they were only stating that she was residing in the said house, but they were not able to state anything about the consent by Shri Benicio. So, on the basis of these circumstances, the Mamlatdar held that she failed to prove that she was residing in the house with the consent of the bhatkar. 10. The learned Addl. Collector in his Judgment has also made reference to the evidence led by the present petitioner in the case MND/12172 and he has pointed out that she stated that she was residing in the property for more than twenty years and after the death of her father, she was looking after the said property and was doing miscellaneous work. He has also made reference to the evidence of the three witnesses examined by the present petitioner and he also makes the observation that the three witnesses state that they knew that she was staying in the said house, but they were not knowing whether she was living there with the consent of the bhatkar and whether she was doing any work on the property. 11. Hence, it appears that after taking into consideration the oral evidence led by the petitioner in the previous proceedings, which she has asked to be read in the subsequent proceedings, the Mamlatdar as well as the Addl. Collector, came to the conclusion that she failed to prove that she occupied the premises with the consent of the bhatkar. 12. The learned Members of the Administrative Tribunal have accepted these findings of the two lower authorities. The Tribunal has confirmed the finding of the two lower authorities that the present petitioner failed to prove that she had obtained consent of Shri Benicio before occupying the suit premises. In the light of these circumstances, I do not think that there is anything on record which would compel me to say that the finding recorded in this respect is without evidence or perverse. 13. With respect to the other ingredient, i.e. regarding fixed habitation, the learned Mamlatdar in his Judgment has no recorded a clear finding. However, the learned Additional Collector has referred to the evidence produced on record by the respondent No. 1 to come to the conclusion that the petitioner had failed to prove that she was having fixed habitation in the mud house. However, the learned Additional Collector has referred to the evidence produced on record by the respondent No. 1 to come to the conclusion that the petitioner had failed to prove that she was having fixed habitation in the mud house. The learned Members of the Administrative Tribunal have also reconsidered this evidence to find out whether the petitioner was having fixed habitation in the suit house and after considering that evidence on record, they have come to the conclusion that the petitioner failed to prove that she was having fixed habitation in the suit house. So here again the petitioner has failed to prove the second ingredient and in such circumstances, the finding recorded by the concerned authorities cannot be disturbed. The petitioner thus has failed to prove that her case falls under the main clause of Section 2(p) of the Mundkar Act, 1975, to hold that she is a mundkar. Neither she has been able to prove that there was consent of the late Shri Benicia, nor that she was having fixed habitation. 14. So far as the argument of the learned counsel for the petitioner that in the plaint of the Regular Civil Suit No. 6171/C, the respondent No. 1 has contended that the petitioner was a licensee in the house and, therefore, it should be presumed that there was consent from Shri Benicio, it has to be noted that statement in the plaint of the Regular Civil Suit No. 6171/C would not mean that the petitioner has discharged the burden which lies on her to show that she was residing with the consent of the bhatkar. In the written statement filed in that suit, she only took the stand that she was a mundkar. The petitioner has to prove that there was express consent of the late Shri Benicio for occupying the mud house and she also has to make it clear since what particular time she is occupying the mud house. Vague statements in this respect would not be sufficient. 15. Furthermore, the respondent No. 1 by its notice dated 8th October, 1970, called upon the petitioner to vacate the premises. So, whatever consent that might be there was withdrawn actually by the notice dated 8th October, 1970. 16. Vague statements in this respect would not be sufficient. 15. Furthermore, the respondent No. 1 by its notice dated 8th October, 1970, called upon the petitioner to vacate the premises. So, whatever consent that might be there was withdrawn actually by the notice dated 8th October, 1970. 16. Not only that, the Regular Civil Suit No. 6171/C was filed by the respondents for obtaining possession of the premises and in the said suit, copy of which is produced on record from page 31 to page 39, it is specifically mentioned in para 10 :- "The plaintiffs submit that the allegations made by the defendant in the said letter are false and constitute an attempt to continue to occupy the said property without any lawful title." So when the respondent No. 1 denied that the petitioner was having any lawful title to continue in occupation of the premises it clearly means that the respondent No. 1 was calling her a trespasser and on that count the suit for possession was filed. 17. While considering the scope of the deeming provision under Explanation to Section 2(p) of the Mundkar Act of 1975, the Division Bench of this Court in the matter of Smt Bhaguirati Narayan Borkar & anr. vs. Smt. Ema Lima Cota Furtado & Ors., reported in 1992(2) Bom. 17. While considering the scope of the deeming provision under Explanation to Section 2(p) of the Mundkar Act of 1975, the Division Bench of this Court in the matter of Smt Bhaguirati Narayan Borkar & anr. vs. Smt. Ema Lima Cota Furtado & Ors., reported in 1992(2) Bom. C.R. 39, has held in para 18 : "In the circumstances the only acceptable interpretation of this provision is to hold that it is sufficient to institute such proceedings against the alleged occupant/trespasser in the dwelling house either before or within one year prior to the appointed date and in that case such occupant can avail of the benefit of the deeming provision only if the landlord does not succeed in obtaining a decree for the eviction of that person." In this matter the respondent No.1 had already filed Regular Civil Suit No. 6/71/C as pointed out above, for possession of the premises, contending that the petitioner was a trespasser and it is brought on record that during the pendency of these proceedings the said suit was decreed in favour of the respondent No.1 and the respondent No.1 have even obtained the possession of the premises and have pulled down the premises, so neither under the main provision of Section 2(p) of the Mundkar Act 1975 can the petitioner establish that she is a mundkar, nor under the Explanation can she claim to be a deemed mundkar in the given circumstances. Hence, there is no reason to interfere in the impugned Order passed by the Administrative Tribunal. 18. The learned counsel appointed as amicus curiae has really given good help to the court and I appreciate her efforts. 19. The Writ Petition fails. The same is dismissed. Rule discharged. Petition dismissed.