INACIO MARTINS Vs. NARAYAN HARI NAIK

JUDGEMENT

(1.) Special leave granted.

(2.) The appellants are the legal representatives of the deceased plaintiff Inacio Martins who died pendente lite. He had on October 26, 1968 instituted a Suit No. 157 of 1968 for a declaration and an injunction to restrain the defendants from dispossessing him from the property known as 'Palmar Oiteral do Predio Aivao' comprising seven lots of coconut grove situated at Caranzalem belonging to defendant No. 2. The said suit was dismissed on March 28, 1974 on the ground that the plaintiff was no more in possession of the suit property and, therefore, a suit for a mere declaration simpliciter could not lie. On the dismissal of the said suit the original plaintiff filed another Suit No. 114/74 on May 6, 1974 for restoration of possession on the ground that he was the lawful tenant of the said property and since he had not been dispossessed in accordance with law the defendants who were mere trespassers were liable to be evicted. The plaintiff's case (supra) in the plaint was that he was the lessee in respect of seven lots on an annual rent of Rs. 3600/- payable in advance in three instalments; that he had paid the rent up to the end of December, 1967 and the first instalment of 1968 but the owner, defendant No. 2, in collusion with defendant No. 1 executed a deed of lease in favour of the latter effective from January 1, 1968 on the strength whereof defendant No. 1 claimed to have assumed possession of the property sometime in the second week of June, 1968 without his tenancy having been lawfully terminated. The plaintiff, therefore, contended that defendant No. 1 was a trespasser in the property and was liable to be evicted therefrom. He, therefore, sought possession of the property in respect of which he claimed to be a lessee. The defendants, besides contending that the suit was barred on the principle of res Judicata and/or constructive res judicata as found in O. 2, R. 2(3) of the Code of Civil Procedure, averred that on the expiry of the lease at the end of December, 1967 the lease stood terminated by efflux of time and defendant No. 2 was, therefore, entitled to let out the property to defendant No. 1 and hence the latter was in lawful possession of the said property. The plaintiffs allegation that he was forcibly dispossessed was denied. The defendants, therefore, contended that the suit was not maintainable and deserved to be dismissed.

(3.) The trial Court upheld the plaintiff's contention that the property was dismissed to him and he was the lawful tenant thereof till his possession came to be disturbed sometime in June, 1968. The trial Court also found that the plaintiff had paid a sum of Rs. 1200/- to defendant No. 2 through his employee Dattu Kenkro by way of advance rent for the year commencing from Jan. 1, 1968. The trial Court, therefore, held that the plaintiff was wrongly dispossessed by defendant No. 1 in collusion with defendant No. 2 and decreed the suit for eviction on September 25, 1985. Against the said decree both the defendants preferred an Appeal No. 82/85. The First Appellate Court concurred with the findings recorded by the trial Court and dismissed the appeal or. March 25, 1986. Feeling aggrieved by the order of dismissal of the appeal, the defendants preferred separate Second Appeals Nos. 27/88 and 31/88 which came to be allowed on April 5, 1991. Interfering with the concurrent findings recorded by the two courts below the High Court came to the conclusion that the courts below had applied the wrong test and had based their findings on the question of tenancy and dispossession on mere conjectures. It, therefore, held that the findings were perverse and it was open to the High Court in Second Appeal to interfere with the said findings. It also held that the suit was barred by res judicata as well as Order 2, Rule 2(3) of the Code of Civil Procedure. Lastly it noticed that during the pendency of the suit the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter called 'the Act') was amended by Act 17 of 1976 dated October 14, 1976 known as the Fifth Amendment which was brought into effect from April 20, 1976 by which the definition of 'agriculture' was changed and the expressions 'garden' and 'garden produce' were defined by the insertion of sub-sections (7A) and (7B) to Section 2 which rendered the Civil Court without jurisdiction. The High Court, therefore, held that the decree passed by the Civil Court was unsustainable. On these findings the High Court allowed the appeals and reversed the decree of the trial Court with no order as to costs. It is against this order of the High Court that the present appeal by special leave is preferred.