UDAY DATTARAM PALYENKAR; VINOD DATTARAM PALYENKAR; ANAND DATTARAM PALYENKAR Vs. CUSTODIAN OF EVACUEE PROPERTY

JUDGEMENT

(1.) This second appeal is filed by the original plaintiffs in Regular Civil Suit No.126/88 which was dismissed on 13th May 1988 on a preliminary issue that the suit is not maintainable as the jurisdiction of the Civil Court is barred by the provisions of the Goa, Daman and Diu Administration of Evacuee Property Act, 1964. The appellants' Regular Civil Appeal No.34/88 was also dismissed on 19th August, 1988, by the learned District Judge, who, needless to mention, took the same view and hence the second appeal.

(2.) A word as to how this second appeal comes before this Bench. When the matter came for admission before the learned Single Judge (Pendse, J.), regard being had to the provision of Section 37 of the Goa, Daman and Diu Administration of Evacuee Property Act, 1964 involving a clear question of law and further regard being had to the decision in Municipal Borough of Ahmedabad v. Jayantilal Chhotalal Patel, 1948 AIR(Bom) 98 an order was made that this matter be conveniently heard by a Division Bench. That is how this appeal is now being disposed of by the Division Bench.

(3.) The original suit having been dismissed on the preliminary issue raised by the respondent that Civil Court has no jurisdiction to entertain the suit, it is advantageous to set out a few facts to understand the controversy. Certain property known as Firgojechem Bata or Guddem situated in Siolim, Bardes Goa, was declared to be an evacuee property under the provisions of the Goa, Daman and Diu Administration of Evacuee Property Act, 1964, for short, Evacuee Property Act. Once such declaration was made the property vested in the Custodian. The Custodian entered into a lease agreement with the appellants letting out the evacuee property for a period of 3 years reserving annual rent, the lease running from 1-4-1985 and ending on 31-3-1988. A lease deed was drawn up. Regard being had to the controversy it is not necessary to refer to the terms and conditions of the lease deed and suffice at this stage to mention that Clause 12 of the deed stipulated that the last plucking before the expiry of the lease shall be undertaken by the appellants only after due intimation to the Custodian to enable him to supervise. The lease having reached near its expiry, on 24th March, 1988, the Custodian by his letter intimated the appellants that the lease agreement expires on 31st March, 1988, and further bringing to their notice that the date of the last plucking be intimated and in any case it should not be beyond 31st March, 1988. Undoubtedly this letter was held to be a threat or a sort of demand for possession by the very appellants and therefore instituted a suit in the Court of Civil Judge, Senior Division, Mapusa, praying therein for a permanent injunction restraining the Custodian from in any manner interfering with their possession of the property, subject matter of the lease. It was indeed averred in the plaint that though the lease was for a period of 3 years ending on 31st March, 1988, there were representations made that lease should be extended for a period of 15 years. These representations according to them found favour with the Custodian with the result the appellants then put the property in order and further carried out new plantation at high cost. These facts are however seriously disputed by the Custodian. A motion was made for a temporary injunction pending the hearing and final disposal of the suit which succeeded with the result the property remains in the possession of the appellants and continues till this date.