SITABAI SHANTARAM TALAWNEKAR Vs. CUSTODIAN OF EVACUEE PROPERTY

JUDGEMENT

(1.) These civil appeals are filed, aggrieved by the judgment and order dated 08.05.2009 passed in W.P. No.142 of 2009 and the judgment and order dated 09.09.2009 passed in L.P.A. No.14 of 2009 by the High Court of Bombay at Goa.

(2.) The subject matter of dispute relates to property known as 'Conde-Mayem'. The said property, covered by Survey Nos.113, 116, 114 and 115/1, 2 and 3, is situated at Mayem, Bicholim in the State of Goa. The said property originally belonged to one Eurico de Soza Joquem Noroana. After the liberation of Goa the said property was declared as evacuee property and same was under the supervision of the Custodian of Evacuee Property, under provisions of the Goa, Daman and Diu Administration of Evacuee Property Act, 1964 (for short, 'Evacuee Property Act'). The appellants claim to be in possession of the aforesaid properties as tenants of the Custodian. When there was a dispute between the predecessors of the appellants and the 2nd respondent (now represented by his legal heirs), the predecessors of the appellants filed Civil Suit No.126 of 1984 on the file of Civil Judge, Senior Division, Bicholim praying for permanent injunction restraining the respondent-defendant from interfering with the suit property. On 15.07.1985 the Civil Judge, Senior Division, Bicholim granted ex-parte injunction in the civil suit and it is stated that the appeal filed before the District Judge by the 2nd respondent ended in dismissal. On 05.11.1984 respondent no.2 filed an application before the Court of Custodian of Evacuee Property, Panji, claiming that he was in possession of the portion of cashew garden and the appellants were trying to evict him as he was not paying the exorbitant rent demanded by the appellants. Vide order dated 21.01.1986 the Custodian of Evacuee Property dismissed the application of respondent no.2. Alleging that inspite of injunction orders obtained by the appellants in Civil Suit No.126 of 1984, respondents were interfering with the property in question, the appellants got police protection from the trial court vide order dated 29.08.1989. Thereafter the 2nd respondent filed Regular Civil Suit No.60 of 1990 in respect of portion of property covered by Survey Nos.114 and 116 and the said suit ended in dismissal vide order dated 18.12.1992.

(3.) As per Section 56 of Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter referred to as, 'the Tenancy Act'), the Act was not applicable in respect of evacuee properties. By virtue of Goa Administration of Evacuee Property (Amendment) Act, 1989, the provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 were made applicable to the evacuee properties. In view of such amendment, respondent no.2 filed an application under Sections 7 and 8-A of the Tenancy Act seeking declaration that he is a tenant of the portion of the suit properties covered in Civil Suit No.126 of 1984. The primary authority, i.e., Joint Mamlatdar-I, Bicholim, Goa vide order dated 30.08.2002 allowed the application declaring the 2 nd respondent as a tenant. The said order is confirmed by the appellate authority vide order dated 08.01.2003 and further confirmed by Administrative Tribunal vide order dated 30.12.2008. When the appellants have filed writ petition in W.P.No.142 of 2009 questioning the aforesaid orders, learned Single Judge of the High Court of Bombay at Goa dismissed the writ petition vide order dated 08.05.2009. When the said order is appealed before the Division Bench, by way of Letters Patent Appeal, same is dismissed as not maintainable. Though the Division Bench of the High Court did not go into merits of the matter, but in view of the long standing dispute between the parties, we have heard the matter on merits with the consent of the learned advocates appearing on both sides.