FRANCISCO DE ROSARIO FERRAO Vs. PANDURANG SIVRAM NAIK

JUDGEMENT

(1.) THE original respondent Pandurang Shivram Naik, had filed an application for registration as mundkar with the Mamlatdar of Mapusa, Bardez, Goa, on 27th June, 1978 and after recording his statement the same was registered as MND/reg/md/7m - WY8/195/82. In the said application and declaration dated 19th February, 1982, of the original respondent, the case of the original respondent was that he was mundkar of landlady Smt. Isabela Ferrao. THE original petitioner, Francisco de Rosario Ferrao, had objected to the registration on the ground that the late Isabela Ferrao was only usufructary of the house in question during her life-time and she had rented part of the house to the original respondent on payment of rent.

(2.) THE Joint Mamlatdar, Mapusa, Bardez, after considering the evidence on record, came to the conclusion that the original respondent had occupied the house in question much prior to the appointed date with the knowledge of the original petitioner and since no proceedings had been filed as contemplated under Explanation to Section 2 (p) of the Goa, Daman and Diu Mundkars (Protection From Eviction) Act, 1975, hereinafter called "the Act", the original respondent was entitled for registration as mundkar. This order of the Joint Mamlatdar was challenged before the Additional Collector, North Goa district, Panaji, who set aside the said order on the ground that the original respondent was not staying in the suit house with the consent of the bhatkar and the permission which was granted by Isabela Ferrao came to an end on her death.

(3.) LEARNED Senior Counsel Shri Coelho Pereira, who was appointed as Amicus Curiae for the legal heirs of respondent no. 1, urged before me that the mundkarial legislation in question is a piece of beneficial legislation; that under Section 30 of the Act the registration has only presumptive value which can be challenged under Section 8-A of the Act and the order of registration under Section 29 of the said Act is not final. In this connection reliance was placed on 'smt. Gulabi Sangtu Devidas & Ors. Vs. Smt. Prema Govinda Gaonkar & Ors. ' reported in 1995 (1) Goa L. T. 154. According to the learned senior counsel, there is no need to go into the question of rights of usufructor since in this case there is evidence on record that Isabela Ferrao purported to act on behalf of the original petitioner. According to him, in the normal course, rights created by a person enjoying usufruct would come to an end with the death of the said person in terms of Article 2207 of the Portuguese Civil Code, but in the case under consideration, the permission granted by Isabel Ferrao was in the nature of contract of mundkarship to start with and in accordance with Section 4 of the said Act the original respondent cannot be ordered to be evicted, even if there is a contract to the contrary. It was also pointed out that the appointed date cannot be extended and in this connection reliance was placed on a Division Bench ruling of this Court in Letter Patent Appeal No.17/94 (Smt. Esmeralda Rosario & Ors. Vs. Shri Cornelio Pereira & Anr.) decided on 31st October, 1996. It was further pointed out that in the deposition before the Joint Mamlatdar, dated 15th January, 1987, the original petitioner had admitted that he had not filed any suit for eviction against the respondent no. 1. On the strength of the above mentioned submissions, it is contended that the Order of the Joint Mamlatdar and the Administrative Tribunal cannot be interfered with.