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2012 DIGILAW 1612 (BOM)

C. Mohiddin v. Hayad Sab Bepari

2012-08-24

F.M.REIS

body2012
Judgment : Heard Shri Sudin Usgaonkar, learned Counsel appearing for the petitioners and Shri J. Godinho, learned counsel appearing for the respondents. 2. This is a petition challenging the judgment passed by the Tribunal whereby an appeal preferred by the respondents was allowed and the petitioners were directed to be evicted form the suit premises. 3. It is the case of the petitioners that there exists a property surveyed under Chalta nos. 231 and 248 of P.T. Sheet no. 253 situated at Margao, which originally belonged to Eusebio Furtado and the same was subsequently sold to the respondents herein. It is further their case that there exists several structures in the said property, out of which house bearing no. 661 is occupied by the petitioners and the house bearing no. 660 is occupied by one Shri K. M. Alli. The eviction proceedings were initiated in the year 1980 against the petitioners as well as Shri Alli under Section 22(2)(a) and Section 30 of the Goa Daman and Diu Building (Lease, Rent and Eviction) Control Act, 1968, (herein after referred to as the 'Rent Control Act'). The petitioners filed their written statement denying the title of the respondents and claiming that only the land belonged to the respondents and not the structure therein. It is the contention of the petitioners that the structures existing on the land were built by the petitioners and they only used to pay land rent to the respondents and claimed to be Mundkars of the structure. 4. The parties led evidence under Section 21 of the Rent Control Act and by Judgment and Order dated 17.01.2003, the Rent Controller held that the respondents had failed to prima facie establish the existence of the landlord and tenant relationship and that the denial of title was bonafide and, consequently, the eviction application came to be dismissed. The Tribunal by an Order dated 02.02.2010, allowed the Appeal preferred by the respondents challenging the Order of the Rent Controller dated 17.01.2003. Being aggrieved by the Judgment passed by the Administrative Tribunal, the petitioners have preferred the present Writ Petition. 5. The learned Tribunal whilst assessing the material on record has come to the conclusion that the respondents were paying the house tax and pointed out that there is no evidence on record produced by the petitioners that they claimed the ownership and paid tax. 5. The learned Tribunal whilst assessing the material on record has come to the conclusion that the respondents were paying the house tax and pointed out that there is no evidence on record produced by the petitioners that they claimed the ownership and paid tax. The Tribunal further found that in case the claim of the petitioners is accepted that they are Mundkars, such house tax ought to have been paid by the petitioners. The learned Tribunal has also rejected the claim of the petitioners that they have put up the construction on the ground that if such contention is to be accepted, the house tax would have been paid by the petitioners which was not the case in the present proceedings. On such count only, the learned Tribunal disbelieved the case put forward by the petitioners. 6. During the course of the hearing of the above petition, Shri Sudin Usgaonkar, learned counsel appearing for the petitioners has pointed out that the defence of the petitioners to the proceedings was that the petitioners themselves have constructed the suit premises at their own cost and that the amount which was paid to the respondents was on account of the ground rent. The learned counsel further pointed out that even the adjoining premises were being occupied in the similar circumstances. The learned counsel has further pointed out that to substantiate such contention, the petitioners have brought oral as well as documentary evidence which was considered by the Rent Controller but however, the learned Tribunal by setting aside the said judgment has not at all discussed or scrutinized the said material produced by the petitioners. The learned counsel further pointed out that by not scrutinizing the said evidence, the impugned judgment passed by the learned Tribunal stands vitiated and as such, grave injustice would occasion to the petitioners on that count. The learned counsel has taken me through the impugned judgment of the learned Tribunal and pointed out that there is no reference to the evidence adduced by the petitioners in support of their contention and as such, the impugned judgment passed by the learned Tribunal deserves to be quashed and set aside. 7. On the other hand, Shri J. Godinho, learned counsel appearing for the respondents has supported the impugned judgment. 7. On the other hand, Shri J. Godinho, learned counsel appearing for the respondents has supported the impugned judgment. The learned counsel has pointed out that the petitioners are the tenants of the suit premises and as such, the petitioners were entitled to file eviction proceedings on the ground of non-payment of ground rent and for reconstruction of the suit premises. The learned counsel further pointed out that the material which is sought to be relied upon by the petitioners is not at all relevant for the purpose of deciding the matter in controversy. The learned Counsel has disputed the contention of Shri Usgaonkar, learned counsel appearing for the petitioners to the effect that the suit premises were constructed by the petitioners and that the amount which was being paid is only on account of ground rent. The learned counsel has pointed out that the petitioners were paying the rent on account of occupation of the suit premises and as such, the learned Tribunal has rightly directed the eviction of the petitioners. The learned Counsel has taken me through the impugned judgment as well as the material on record and pointed out that no case is made out by the petitioners for any interference by this Court in the impugned judgment. 8. I have considered the submissions of the learned counsels and I have also gone through the records with the assistance of the learned counsel appearing for the respective parties. On perusal of the impugned judgment, the material sought to be relied upon by the petitioners including the oral evidence to the effect that the premises were constructed by the petitioners and that the amount paid was ground rent has not been dealt with by the learned Tribunal. It is well settled that the First Appeal is a valuable right to the party and it is incumbent upon the First Appellate Court to scrutinize each and every piece of evidence adduced by the parties to come to the correct findings. The learned Tribunal has not considered the effect of the receipts produced by the respondents and whether on the basis of such receipts any rent was received by the respondents. The learned Tribunal has not considered the effect of the receipts produced by the respondents and whether on the basis of such receipts any rent was received by the respondents. In the present case, considering that the learned Tribunal was upsetting the judgment passed by the Rent Controller, it was expected of the learned Tribunal to scrutinize each and every piece of oral and documentary evidence adduced by the parties and after appreciation such evidence arrive at the findings on the basis of the points for determination and/or issues raised in the proceedings. Non-consideration of the matter in the above manner vitiates the judgment passed by the learned Tribunal. In such circumstances, keeping all issues raised by both the parties open, I find it appropriate in the interest of justice to quash and set aside the judgment passed by the learned Tribunal dated 02.02.2010 and remand the matter to the learned Tribunal to dispose of the appeal preferred by the respondents a fresh after hearing the parties in accordance with law. 9. In view of the above, I pass the following: ORDER (i) The impugned judgment passed by the learned Tribunal dated 02.02.2010 is quashed and set aside. Eviction Appeal No. 45/2003 is restored to the file of the learned Tribunal. (ii) The learned Tribunal is directed to dispose of the said appeal a fresh after hearing the parties as expeditiously as possible and preferably within six months from the date of the receipt of the order in accordance with law. All contentions of the parties on merits are left open. (iii) Rule is made absolute in above terms. (iv) The parties are directed to appear before the learned Tribunal on 24.09.2012 at 10.00 a.m.