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2013 DIGILAW 2131 (BOM)

Bala Pundalik Hadfadkar v. Prakash Lily Hadfadkar

2013-10-11

NARESH H.PATIL

body2013
JUDGMENT : Naresh H. Patil, J. This Second Appeal is filed against the Judgment and Decree dated 7th August, 2004 passed by the 1st Ad-hoc Additional District Judge at Panaji in Regular Civil Appeal No. 83 of 2002. 2. The appellant is the original plaintiff. It is the contention of the plaintiff that he resides along with his family in a property known as 'Akhudyachem Bhatlem' situated at Askawada, Mandrem, of Pernem Taluka, survey no. 152/10 and 152/12. The said land belonged to Mr. Gurunath Janardhan Shetye. It is contended that the plaintiff resides in the house situated in the said property in the capacity of Mundkar. The said house is partly situated in survey no. 152/10 and partly in survey no. 152/12. Under a certificate granted by Mamalatdar, the plaintiff was permitted to purchase 300 square metres' area comprising of his dwelling house. The Mamlatdar had issued a certificate to that effect. By virtue of that certificate of purchase, the plaintiff contends that he became the owner in possession of the said 300 square metres' plot which is hereinafter referred to as a 'suit plot'. 3. It is contended that the name of defendant no.1 was recorded as a tenant in respect of survey no.152/12 in the survey record. The original plaintiffs no.2 and 3 are the sons of defendant no.1 and original defendant no.4 is daughter-in-law of defendant no.1. According to the plaintiff, in the month of May, 1991, the defendants illegally put up a temporary hut in the suit plot and on 10/06/1993, they had dug a pit in the suit plot. They had also put up rubber stone layer in the backside of house of the plaintiff which is part of the suit property. The defendant no.1 had also filed a suit against the plaintiff and original owner of the suit property. An application claiming interim relief filed in the said suit, came to be dismissed. The plaintiff prayed for an order of injunction restraining the defendants to interfere in the suit plot and for directing the defendants to remove the hut and restore the land to its original condition. 4. The defendants filed written statement. It is their case that the plaintiff and his family is not residing in Survey no. 152/12. The plaintiff is an agricultural tenant in relation to the property surveyed under No. 152/10 owned by Shri Gurunath Shetye. 4. The defendants filed written statement. It is their case that the plaintiff and his family is not residing in Survey no. 152/12. The plaintiff is an agricultural tenant in relation to the property surveyed under No. 152/10 owned by Shri Gurunath Shetye. It is contended by the defendants that the order of purchase of the suit plot was obtained by the plaintiff by playing fraud on the Mamlatdar of Pernem and on the defendants. The Defendant no.1 had filed a suit to restrain the plaintiff from interfering in the portion which falls in Survey No.152/12. The said suit is still pending. The defendant no.1 has also filed an application for declaration. According to the defendant no.1, he has become deemed owner of survey no. 152/12 by virtue of provisions of Agricultural Tenancy Act, 1964. It is contended by the defendant no.1 that the property no.152/12 is in his exclusive possession as a agricultural tenant. The defendants denied the contention that they had dug a pit and had constructed a hut in the property of the plaintiff. According to the defendants, the alleged hut is existing since last 25 years and the same is used by the defendants to store fire wood and other material. 5. The learned Senior Counsel for the appellant submitted that the Lower Appellate Court committed an error in recording finding that the plaintiff had played fraud on the Mamlatdar and the defendants while the suit plot was purchased under an order issued by the Mamlatdar. The learned Senior Counsel submitted that the Lower Appellate Court failed to consider necessary provisions of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (for short 'the 1975 Act') and the Rules framed thereunder. A reference was made to the provision of Section 16(8) of the 1975 Act and on the definition of 'land' as prescribed under the provisions of section 2(11) of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. The learned Counsel submitted that in view of the provisions of Sections 31 and 32 of the Act, Civil Court's jurisdiction is barred to entertain the issues, which needs to be decided by the Mamlatdar. The Lower Appellate Court had given relief to the defendants in the suit of the plaintiff without there being any counter claim. 6. The learned Counsel for the respondents/defendants placed reliance on the inspection note of the Mamlatdar. The Lower Appellate Court had given relief to the defendants in the suit of the plaintiff without there being any counter claim. 6. The learned Counsel for the respondents/defendants placed reliance on the inspection note of the Mamlatdar. The learned Counsel submitted that the plaintiff had played fraud on the Mamlatdar and the defendants. The application filed by the plaintiff was defective as he did not mention the existence of his house in survey No. 152/12. The counsel submitted that by a corrigendum, entry of survey no. 152/12 was inserted in the records. It was submitted that before the plaintiff purchased the house in question, the hut was in existence. The defendants as tenants had purchased the entire survey no.152/12. A civil suit filed by the defendants is still pending in the Civil Court, according to the counsel. The defendants are agricultural tenants. A certificate was issued to that effect on 10/10/2001. The defendants were not knowing of any declaration made in favour of the plaintiff as Mundkar. They were not given notice by the Mamlatdar. Therefore, the order of purchase obtained by the plaintiff was based on fraud played by the plaintiff. The learned Counsel refers to the provisions of Section 29 of the 1975 Act which refers to registration of Mundkar. The learned Counsel further refers to Section 8(A) which refers to declaration of rights of any person, who claims to get any benefit under this Act. It was submitted by the learned counsel that the Mamlatdar violated the conditions prescribed under Section 16(3) of the 1975 Act. There is no substantial question of law, therefore, the appeal deserves to be dismissed. The learned Counsel placed reliance on the judgment in “Gundaji Satwaji Shinde Vs. Ramchandra Bhikaji Joshi”, AIR 1979 SC 653 . 7. The Lower Appellate Court observed in the judgment that defendant no.1 was a deemed purchaser and, therefore, was the owner of survey no. 152/12. He was a necessary party, who should have been heard by the Mamlatdar while deciding the application filed by the plaintiff for purchasing the suit plot. It was further observed that the original name of the plaintiff is not figuring in Form No. I and XIV of survey no. 152/12. It was incorporated after mutation, upon an application filed by the plaintiff, after obtaining certificate of purchase. It was further observed that the original name of the plaintiff is not figuring in Form No. I and XIV of survey no. 152/12. It was incorporated after mutation, upon an application filed by the plaintiff, after obtaining certificate of purchase. The Appellate Court further observed that the provision of Section 16 of the 1975 Act was violated. The defendant no.1 was neither given notice by the Mamlatdar nor the plaintiff informed the Mamlatdar about the possession of respondent no.1. Therefore, the order of purchase passed by the Mamlatdar was vitiated by fraud. The Lower Appellate Court further observed that there is no evidence on record to show that the plaintiff was put in possession by the Collector. 8. The Trial Court had observed in the judgment that there was no evidence on record to show that the hut was existing prior to purchase of the suit plot by the plaintiff. In form no. I and XIV which pertains to the property bearing survey nos. 152/10 and 152/12, the existence of hut is not mentioned. The suit plot was transferred in favour of the plaintiff free from all encumbrances imposed on it. According to the plaintiff, he was absolute and exclusive owner of the suit property. The Trial Court has observed that the suit plot was purchased in the year 1990 by the plaintiff. The said purchase was not set aside by any competent authority. The defendant purchased the property bearing survey no. 152/12 in the year 2001 i.e. during the pendency of the instant suit. The Trial Court further observed that the rights of Mundkar are superior to the rights of all others and the right of purchase of the dwelling house has been given to the Mundkar by special legislation. The Trial Court refers to the provisions of the 1975 Act which was passed to protect the rights of the Mundkar. In the case of Gundaji Satwaji Shinde (supra), the Apex Court observed that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. The learned Counsel for the defendant placed reliance on following judgments: 1. Sri Ram Ram Narain Medhi Vs. The State of Bombay, A.I.R.1959 SC 459 in respect of the provisions contended n Bombay Tenancy and Agricultural Lands (Amendment) Act. 2. Shri Arjun Pandurang Kandolkar Vs. The learned Counsel for the defendant placed reliance on following judgments: 1. Sri Ram Ram Narain Medhi Vs. The State of Bombay, A.I.R.1959 SC 459 in respect of the provisions contended n Bombay Tenancy and Agricultural Lands (Amendment) Act. 2. Shri Arjun Pandurang Kandolkar Vs. Smt. Lourdes Eufregenia, 1998(2) Goa L.T. 361 in respect of presumption arising under section 105 of the Goa, Daman and Diu Land Revenue Code, 1968. 3. A.V. Papayya Sastry and others Vs. Government of A.P. And others, 2007(4) S.C.C., the Apex Court observed as under: “21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed; "Fraud avoids all judicial acts, ecclesiastical or temporal".” 4. Badami (Deceased) by her LR Vs. Bhali, (2012) 11 SCC 574 , the Apex Court observed as under : “20. In S. P. Chengalvaraya Naidu v. Jagannath this court commenced the verdict with the following words: (SCC p.2-para1) “1. 'Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” In the said case it was clearly stated that the courts of law are meant for imparting justice between the parties and one who comes to the court, must come with clean hands.” 9. I have perused the original record, the judgment delivered by the Trial Court and the District Court and considered the submissions advanced by the learned counsel appearing for the parties. It would be necessary to refer to the provisions of Section 8(A) of the 1975 Act which reads as under : “8A. Declaration of right.— (1) If any person is entitled to any right under this Act he may move the Mamlatdar by an application for a declaration for such a right. It would be necessary to refer to the provisions of Section 8(A) of the 1975 Act which reads as under : “8A. Declaration of right.— (1) If any person is entitled to any right under this Act he may move the Mamlatdar by an application for a declaration for such a right. (2) On receipt of such an application, the Mamlatdar may after holding such enquiry as may be prescribed, pass such order as he considers fit.” 10. The relevant provisions of Sections 16(3) and (8) of the 1975 Act reads as under : “(3) The Mamlatdar shall, after giving notice to the bhatkar of the land in which the dwelling house is situated and any other person interested in the land and after such inquiry as may be prescribed, pass such orders on the application as he deems fit. (8) After the order of the Mamlatdar under sub-section (3) has become final and on the deposit of the last installment of the purchase price or on the deposit of the purchase price in a lumpsum, the Collector shall issue a certificate of purchase in such form and containing such particulars as may be prescribed, and thereupon the right, title and interest of the bhatkar shall, in respect of the dwelling house allowed to be purchased, vest in the mundkar free from all encumbrances or charges.” 11. Provision of Section 24 of the 1975 Act reads as under: “24. Appeal.— From every original order, other than an interim order, passed by the Mamlatdar or the Collector under this Act, an appeal shall lie to the Collector or the Administrative Tribunal respectively and the order of the Collector or the Administrative Tribunal, as the case may be shall subject to revision if any, under section 25 of this Act, be final.” 12. Provisions of Sections 31 and 32 of the 1975 Act read as under : “31. Protection of action taken under the Act and bar of jurisdiction of Courts.— (1) No suit, prosecution or other legal proceeding shall lie against any officer for anything in good faith, done or intended to be done under this Act. Provisions of Sections 31 and 32 of the 1975 Act read as under : “31. Protection of action taken under the Act and bar of jurisdiction of Courts.— (1) No suit, prosecution or other legal proceeding shall lie against any officer for anything in good faith, done or intended to be done under this Act. (2) No Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined, by the Mamlatdar or the Collector or the Government or the Administrative Tribunal and no order passed by such authority under this Act shall be questioned in any Civil or Criminal Court. 32. Suits involving issues required to be decided under this Act.— (1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by the Mamlatdar or the Collect or under this Act the Civil Court shall stay the suit and refer such issues to the Mamlatdar or the Collector, as the case may be, for determination. (2) On receipt of such reference from the Civil Court, the Mamlatdar or the Collector shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate his decisions to the Civil Court and such Court shall thereupon decide the suit in accordance with the procedure applicable thereof.” 13. From the scheme of 1975 Act, which could be well ascertained that appropriate procedures is prescribed for claiming rights as a Mundkar. The Act is passed for giving better protection to Mundkar and to grant them the right to purchase such houses and sites where such houses are built at a reasonable prices. No Civil Court would have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under the 1975 Act required to be settled, decided or dealt with or to be determined, by the Mamlatdar or the Collector or the Government or the Administrative Tribunal. If the issues arise in the suit, which are required to be settled by the authorities under the 1975 Act, it was mandatory for the Civil Court to refer such issue to the said authority. 14. If the issues arise in the suit, which are required to be settled by the authorities under the 1975 Act, it was mandatory for the Civil Court to refer such issue to the said authority. 14. The definitions of 'Land' and 'tenant' under the Goa, Daman and Diu Agricultural Tenancy Act, 1964, reads as under : (11)['(i) "land" means land which is used for agriculture or which is capable of being so used, but is left fallow, and includes farm buildings appurtenant to such land: Provided that nothing in this clause shall apply to land which is in the possession of a Mundkar, otherwise than as a tenant. Explanation.— For the purposes of this clause, the expression "Mundkar" shall have the meaning assigned to it in clause (p) of section 2 of the Goa, Daman and Di u Mundkars (Protection from Eviction) Act, 1975 (1 of 1976);';] (23) "tenant" means a person who on or after the date of commencement of this Act holds land on lease and cultivates it personally and includes a person who is [or was] deemed to be a tenant under this Act; 15. In the present case, the appellant/plaintiff filed a suit for permanent and mandatory injunction by making substantive prayer clauses: “(a) That the defendants, their agents, servants, family members or any person acting on their behalf be restrained by a Permanent Injunction from interfering in any manner in respect of the suit plot which is purchased by the plaintiff under the Mundkar Act. (b) The defendants may be ordered to remove the illegal hut put up in the suit plot by an order of Mandatory Injunction and restore the land to its original condition.” 16. Under the scheme of 1975 Act, an aggrieved person is entitled to challenge the order passed by the Mamlatdar. In the facts of the case, nothing is placed on record to show that the original defendants/respondents herein had raised appropriate challenge to the order of the Mamlatdar, Pernem, Goa allowing the plaintiff to purchase the suit land. 17. The defendants raised a plea during the proceedings of the suit that as notice was not issued under the provisions of Section 16 of the 1975 Act to the defendants tenants of survey no. 17. The defendants raised a plea during the proceedings of the suit that as notice was not issued under the provisions of Section 16 of the 1975 Act to the defendants tenants of survey no. 152/12, the order of purchase granted in favour of the appellant herein as Mundkar is void as the same was obtained by playing fraud on the Mamlatdar and Defendants. 18. The Lower Appellate Court framed two points while deciding the appeal which read as under : “(a) Whether the respondent had obtained the order from Mamlatdar by fraud? (b) Whether the learned trial Judge has erred in granting relief in favour of respondent?” 19. From the points framed, it is explicitly clear that the Lower Appellate Court dealt with the appeal considering the issue as to whether the appellants herein had obtained the order from the Mamlatdar by playing fraud. 20. The learned Counsel for the appellant submitted that as alleged if the prescribed procedure enunciated under the provisions of 1975 Act was not followed the order allowing purchase of suit plot, cannot be said to have been obtained by playing fraud on the Mamlatdar. In view of provisions of Sections 31 and 32 of 1975 Act, Civil Court's jurisdiction to deal with such issue is barred. 21. I find substantial force in the submission of the learned Senior Counsel in respect of the finding reached by the Lower Appellate Court that the appellant had obtained the order of purchase by playing fraud. 22. The question is as to whether the order of purchase granted by the Mamlatdar in favour of the appellant without giving notice to the respondents would amount to playing fraud? In the facts of the case and considering the scheme of 1975 Act, I do not find it reasonable to jump to the conclusion that the appellant had played fraud on Mamlatdar and obtained order of purchase. Such an issue under 1975 Act needs to be decided and determined by the appropriate authorities. The claim of the respondents being tenants of the relevant portion of survey no. 152/12 regarding right of way to the residential house and to the existing structure used as a store house is to be adjudicated by the authorities, who are supposed to exercise their jurisdiction under 1975 Act. The claim of the respondents being tenants of the relevant portion of survey no. 152/12 regarding right of way to the residential house and to the existing structure used as a store house is to be adjudicated by the authorities, who are supposed to exercise their jurisdiction under 1975 Act. The Civil Court's jurisdiction is excluded in such matters and in case such issues arise, the Civil Court has to refer these issues to appropriate authorities. 23. According to the appellant, his claim was based on the order of purchase and according to the respondents, they have not been given notice by the Mamlatdar. The respondents could have resorted to appropriate proceedings aggrieved by the order of purchase granted by the Mamlatdar in favour of the appellant herein, but they have failed to do so. 24. The Lower appellate Court has based the impugned Judgment on substantial issue of violation of the provisions of Section 16 of 1975 Act and reached a finding that the appellant had obtained the order of purchase by playing fraud. I am not convinced by the finding and the conclusion reached by the Appellate Court. The issue of jurisdiction of Civil Court, goes to the root of the matter. 25. While admitting the appeal, this Court had framed the following substantial question of law: “Whether the 1st Appellate Court could have adjudged the purchase made by the Appellant under the provisions of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 as fraudulent and consequently null and void and therefore liable to be ignored, when there was no counter-claim filed by the Respondents to declare it as such?” 26. As I am dealing with the issues considering the provisions of the 1975 Act and 1964 Act and considering the points framed by the Lower Appellate Court, I need not traverse through the factual background relating to the claim of possession of the suit plot as Mundkar and tenants, by the respective parties. I am not, therefore, dealing with the revenue records maintained by the concerned Department in respect of the survey nos. 152/10 and 152/12. In view of the substantial question of law raised, I am convinced that the Lower Appellate Court has erred in law in allowing the appeal. 27. I am not, therefore, dealing with the revenue records maintained by the concerned Department in respect of the survey nos. 152/10 and 152/12. In view of the substantial question of law raised, I am convinced that the Lower Appellate Court has erred in law in allowing the appeal. 27. It is made clear that in case the respondents desire to resort to appropriate remedies as prescribed under the 1975 Act in respect of the order of purchase granted by appropriate authority in favour of the appellant herein, they are free to resort to such remedy. The outcome of this appeal shall not affect the substantive rights of the parties in that regard. For the reasons stated above, the appeal deserves to the allowed. 28. The appeal is allowed. The impugned judgment and decree dated 7th August, 2004 passed by the 1st Ad-hoc Additional District Judge at Panaji in Regular Civil Appeal No. 83 of 2002 is quashed and set aside. 29. No order as to costs.