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2013 DIGILAW 2525 (BOM)

Domingos A. Fernandes v. Baptista Sao Francisco Fernandes

2013-12-09

U.V.BAKRE

body2013
JUDGMENT Heard Mr. Lobo, learned Counsel appearing on behalf the petitioner and Mr. Da Costa Frias, learned Counsel appearing on behalf of respondent no.1. Respondents no. 2 to 12 are absent, though duly served. 2. Rule. Rule is made returnable forthwith. By consent, heard forthwith. 3. By this petition, the petitioner has challenged the judgment and order dated 17/10/2012 passed by the Deputy Collector and S.D.O., Pernem in Case No. DCP/TNC/REV/1-14/10. 4. The petitioner has filed Regular Civil Suit No. 45/2005 against the respondents, for declaration and injunction. In the said suit, the issue no. 4 was as under : “Whether the plaintiff proves that he is a tenant of the entire suit property bearing Survey No. 272/10 of village Mandrem, Taluka Pernem ?” The issues were initially framed on 30/06/2007 and stood modified after the order dated 22/02/2011 and again on 18/10/2011. The issue no. 4 was referred to the Mamlatdar in terms of the provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964. On 23/12/2010, the petitioner filed an application before the Civil Court for joinder of parties to the said suit. The said application was heard and by order dated 22/02/2011, the same was allowed and accordingly, plaintiffs no. 2 to 15 came to be added as parties to the said Regular Civil suit No. 45/2005. In view of the said addition of the plaintiffs, issue no. 4 stood further modified as follows : “Whether the plaintiff proves that they the tenants of the entire suit property bearing Survey No. 272/10 of village Mandrem, Taluka Pernem?” This modification to the issue no.4 in said Regular Civil Suit No. 45/2005 was done on 18/10/2011. 5. On the same lines, the petitioner filed an application dated 08/10/2010 for amendment and joinder of necessary parties before the Joint Mamlatdar-II of Pernem where the issue of tenancy was referred to and pending. The Joint Mamlatdar was pleased to allow the said application by order dated 29/10/2010. However, respondent no.1 filed Revision Petition against the said order of Joint Mamlatdar before the Deputy Collector and by impugned judgment dated 17/10/2012, the Deputy Collector set aside the order dated 29/10/2010 passed by the Joint Mamlatdar. 6. The Joint Mamlatdar was pleased to allow the said application by order dated 29/10/2010. However, respondent no.1 filed Revision Petition against the said order of Joint Mamlatdar before the Deputy Collector and by impugned judgment dated 17/10/2012, the Deputy Collector set aside the order dated 29/10/2010 passed by the Joint Mamlatdar. 6. Upon perusal of the entire material on record including the orders passed in the Civil Suit No. 45/2005, Tenancy Case No. JM-II/TNC/14/2007 and the impugned order passed by the Deputy Collector, and upon consideration of the submissions made by the learned counsel for the parties, I am of the view that the Deputy Collector committed an error in reversing the order of the Joint Mamlatdar. 7. The Deputy Collector ought to have considered that the issue referred to Joint Mamlatdar was framed by the Civil Court in Regular Civil Suit No. 45/2005. The Civil Court had allowed the amendment to the cause title and accordingly, plaintiffs no. 2 to 15 came to be added and the said issue no. 4 was accordingly modified to make it in the plural as to whether all the plaintiffs prove that they are the tenants of the entire suit property bearing survey no. 272/10 of village Mandrem, Taluka Pernem. Issue No. 4, therefore, also stood amended for the purpose of deciding the reference before the Joint Mamlatdar. The Joint Mamlatdar held that in order to avoid multiplicity of the proceedings, the applications to amend the pleadings and for joinder of parties had to be allowed and that no prejudice would be caused to the opponents and accordingly, he allowed them. No doubt, the jurisdiction of the Mamlatdar was limited to decide the issue referred to it by the Civil court either in the affirmative or in the negative, as has been observed by the Deputy collector. However, for doing that the Mamlatdar is entitled to do all that is necessary in law for just and proper decision. The impugned order depicts total non-application of mind and is, therefore, bound to be quashed and set aside so that the order of the Joint Mamlatdar gets restored back. 8. In the result, the petition is allowed. (a) The impugned order dated 17/10/2012 passed by the Deputy Collector and S.D.O., Pernem in Revision Proceedings bearing Case NO. DCP/TNC/REV/1-14/2010 is quashed and set aside. (b) The order of the Joint Mamlatdar dated 29/10/2010 stands restored back. 8. In the result, the petition is allowed. (a) The impugned order dated 17/10/2012 passed by the Deputy Collector and S.D.O., Pernem in Revision Proceedings bearing Case NO. DCP/TNC/REV/1-14/2010 is quashed and set aside. (b) The order of the Joint Mamlatdar dated 29/10/2010 stands restored back. (c) The Joint Mamlatdar to expedite the proceedings and conclude the same expeditiously and in any case, within one year from the date of the receipt of the present order. (d) Rule is made absolute in the aforesaid terms. 9. The petition is disposed of accordingly, with no order as to costs.