BHAGUIRATI NARAYAN BORKAR Vs. EMA LIMA COTA FURTADO

JUDGEMENT

(1.) THIS Letters Patent Appeal arises out of the Order of the learned Single Judge of this Court dated 29 -8 -1989 which rejected in limine the Writ Petition No. 295 of 1989 filed by the appellants against the respondents under Articles 226 and 227 of the Constitution seeking for a writ of certiorari of any other writ, direction or order in the nature of certiorari to quash and set aside the Orders dated 30 -9 -80, 21 -8 -91 and 27 -2 -89 of the respondents No. 4, 5 and 6 respectively.

(2.) THE appellant No. 1 is the mother of the appellant No. 2 and of the respondent No. 7 and the respondent No. 8 is the wife of respondent No. 7. The case of the appellants is that there exists a property known as 'Tolcai Zor' situated at Aquem, Margao bearing Land Registration No. 35625 and enrolled in the Land Revenue Office under No. 1146 and No. 859. The said property was belonging originally to one Ana Joaquina Elizinha De Sa and her husband Anastasio Justiano De Saude Furtado. By Sale Deed dated 8 -9 -1955 the late husband of the respondent No. 1 purchased the said property from the said Ana who was his step -mother. Therefore, even after the purchase Ana continued looking after the property since the respondent No. 1 and her late husband were staying in Africa for several years on account of the respondent No. 1's husband's work before they came down to Goa sometime in the year 1968. In the said property there exists a mundkarial house which was constructed by the appellants somewhere in the year 1959/60 with the permission of Ana. After the return of the respondent No. 1 and her husband from Africa they wanted them to leave the house but, however the appellant No. 1 has been residing therein along with her children namely, the appellant No. 2 and the respondent No. 7. The respondent No. 8 came to occupy the mundkarial house only after her marriage with respondent No. 7. The property was a barren land excepting an old residential house and since the time the appellant No. 1 started living in the property she planted various trees around the mundkarial house and is in occupation and enjoyment of not only the house but of an area around the same to the extent of about 440 sq. meters including the house. The said Ana was looking after the property until 1968. After their return Africa in 1968 the respondent No. 1 and her late husband were harassing the appellants in order to make them vacate the mundkarial house. They then filed a suit against one Jairam Bikaji Rao, bearing Civil Suit No. 193 of 71, before the Civil Judge, Margao to evict him from the main house wherein he was living and a decree was passed against Jairam on 19 -8 -75 after which he vacated the said house. Therefore, since the respondent No. 1 and her late husband were pressurising the appellants to vacate the mundkarial house the appellant No. 1 filed a mundkar application on or about 1972 before the Mamlatdar of Margao seeking a declaration, under section 10 of the Mundkar Act, 1971, that she was a mundkar of the house constructed by her in 1959/60. During the pendency of this proceedings the husband of respondent No. 1 died on 9 -12 -1972 but the appellant moved an application before the Mamlatdar only on the fortieth day i.e. on 19 -1 -1973 to bring the heirs of the deceased on record. The respondent No. 1 objected to this application saying that it was time barred and the proceedings were abated. It appears that under section 11 of the Goa, Daman and Diu (Protection from Eviction of Mundkars, Agricultural Labourers and Village Artisans) Act, 1971 (hereinafter called the Act of 1971) the application was to be made in terms of section 17 of the Mamlatdar's Court Act, 1976. Hence the application was ultimately dismissed as abated by Order dated 17 -7 -73 where the Mamlatdar upheld the objection of the respondents without going into the merits of the application. Sometime thereafter, in the year 1975 the respondents No. 1, 2 and 3 filed a Civil Suit No. 97 of 75 seeking for the eviction of the appellants from the suit house as trespassers. In this suit the appellants raised the issue of mundkarship and contended that they could not be evicted as such. The said suit went up to the stage of issues and on 22 -12 -75 i.e., prior to the enforcement of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called the Act of 1975) one issue bearing Issue No. 9 was framed as under : - - - 'Whether the defendants prove that this Court has no jurisdiction because they are agricultural labourers, artisans and mundkars of the suit property'. By order dated 24 -11 -76 i.e., after the new Act came into force the said issue was decided in favour of the respondents No. 1, 2 and 3 (hereinafter called the respondents) in the sense that the Civil Court held that it was having jurisdiction to entertain the suit. Against the said decision the appellant filed a Revision Application before the Court of the Judicial Commissioner, Panaji, which was registered under No. 12 of 1977 and disposed by Order dated 22 -11 -1978. In the said Order the Judicial Commissioner while allowing the revision set aside the order of the trial Court but held that since the application filed by the appellant No. 1 had been decided and already rejected she was not entitled to raise the question of her mundkarship again before the Mamlatdar. However as far as the appellant No. 2 and respondent No. 7 and 8 there was no bar of res judicata and their claim of mundkarship had not been decided. Therefore they could raise the claim of mundkarship under the new Act of 1975 and section 13 of the Act would be attracted. The Judicial Commissioner accordingly directed that the Civil Judge should transfer the case to the Court of the competent Mamlatdar for determination of the issue of mundkarship. Consequent upon this transfer the Mamlatdar took up fresh proceedings and allowed both the parties to lead evidence after which by order dated 30 -9 -80 held that the appellants were not mundkars of the suit house. The appellants filed an appeal against this order before the Collector which was, however, dismissed by judgment dated 21 -8 -81. A revision to the Administrative Tribunal met with the same fate and the same was ultimately rejected by judgment dated 27 -2 -89. The appellants then approached this court with the Writ petition wherein the impugned order of the Single Judge was passed rejecting the relief sought for on the grounds recorded in the aforesaid order.

(3.) THERE is considerable merit in this submission of Shri Dessai with this regard. Inasmuch as the Judicial Commissioner totally overlooked that the fact of the abatement of the appellant's application for protection under section 10 of the Act of 1971 did not mean that the same was adjudicated on its merits, there was no question of any obstacle or the principles of res judicata coming in the way of a fresh application for adjudication of the appellant No. 1's claim of mundkarship under the new Act of 1975.