RAMRAI GANPAT GOLTEKAR Vs. PETER MICHAEL FERNANDES

JUDGEMENT

(1.) THIS writ petition under Articles 226 and 227 of the Constitution challenges the judgment and order of the Administrative Tribunal dated 22nd April, 1988 in Tenancy Revision No. 1/81 filed by the petitioners against the respondents whereby the learned Tribunal has upset the judgment and order of the Deputy Collector, North Goa, Panaji, dated 4-5-1979 in Tenancy Case No. TNC/ap/5/78 and restored the judgment and order of the Mamlatdar of Bardez dated 24th September, 1977 passed in Tenancy Case No. 1/74.

(2.) THE late original petitioner (hereinafter called the petitioner) who is now represented by his legal heirs had filed before the Mamlatdar an application under sections 4, 7 and 18 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter called the Tenancy Act) seeking for a declaration of his tenancy and restoration of possession. The subject-matter of the dispute is a paddy field known as "maina" surrounded by a loose stone wall along with other trees, situated at Maina of Siolim and belonging to the late respondent No. 2 which even prior to the said application the petitioner alleged that inspite of his tenancy was sold by the respondent No. 2 to the respondent No. 1. It appears that in the year 1973 when the petitioners went to pluck the fruits of the trees he was obstructed by respondent No. 1 and therefore the application was filed before the Mamlatdar in the year 1974. The learned Mamlatdar after enquiry found that the petitioner was not a tenant of the property and by judgment and order dated 24-9-1977 dismissed the application. In appeal before the Deputy Collector the order of the Mamlatdar was reversed by judgment dated 4-5-1979 whereby the petitioner was declared as a tenant and the Mamlatdar directed to restore to him the possesion of the suit property. However, this order of the Collector came to be unsettled by the Administrative Tribunal in revision by judgment dated 22-4-1988 which is being impugned in the present petition.

(3.) THE first grievance of Shri Sardessai, learned Counsel appearing on behalf of the now petitioners, is that the order of the Tribunal is a non-speaking order which has neither considered nor discussed the material placed before it by the Deputy Collector. Before the Mamlatdar the respondents have admitted the possession and enjoyment by the petitioners of the fruits of the trees situated in the property. It was further submitted by the learned Counsel that the petitioner have examined several witnesses to prove that he was paying rent to the respondent No. 2 who is the predecessor-in-title of the respondent No. 1, which evidence was not destroyed by the respondents in cross-examination. Thus there is a finding by the Deputy Collector on the point of the payment of rents alleged to have been made by the petitioner to the landlord in respect whereof no challenge was raised by the respondents. This clear finding is to the effect that in the absence of any denial on the part of the respondents with regard to the payment of the rents the said payment should be held as proved. It was also urged that in view of this finding and also bearing in mind the admission made by the respondents witnesses that the petitioner was plucking the fruits of the trees of the property the question of the petitioner producing any receipts with regard to the payment of rent would become totally irrelevant. Indeed it was contended by the learned Counsel that the landlord is to be deemed as having admitted the petitioner as tenant of the property once there is an admission on the part of the respondents witnesses that the petitioner was enjoying and plucking the fruits of the trees in the suit property. The learned Counsel has drawn my attention to the testimony of witness Jose Fernandes wherein he has acknowledged the existence of coconut trees on the boundry of the suit land and also in the middle of the field. According to the learned Counsel this position negativtes the theory of existence of two separate properties being one the paddy field and the other a landed property wherein coconut trees and other fruit bearing trees exist. It was further argued by the learned Counsel that once the landlord failed to discharge the duty of issuing receipts of rents to the petitioner he was certainly helpless to prove the payment of rents through any receipts or documentary evidence. Therefore, in such circumstances he would be able to prove the payment of rents through testimonial evidence. The learned Counsel has also urged that the respondents have deviated from their original stand in respect of the name of the suit property and the fact of the paddy field having been cultivated by one Bhiku as its tenant till 1974.