MADHUKAR V. KHANDEPARKAR Vs. ADMINISTRATIVE TRIBUNAL

JUDGEMENT

(1.) BY this petition, the petitioners take exception to the judgment and order dated 04.01.1999 passed by the respondent No. 1 in Mundkar Revision Application No. 33/88 allowing the revision application filed by the respondent Nos. 2 to 5.

(2.) BRIEFLY , the facts leading to filing of the present petition are as follows: In December 1975, the respondent Nos. 2 to 7 and two others filed civil suit No. 267 of 1975 in the Court of Civil Judge, Junior Division, Panaji for eviction of petitioner No. 2 and her husband Madhukar Khandeparkar from the house bearing Village Panchayat No. 525 (hereinafter referred to as the suit house) situated at Taleigao. According to the plaintiffs in the said suit, the suit house was built by one Oidem alias Radhabai Khandeparkar with their permission and she was residing there alone as licencee. She expired in March 1975 without leaving any heirs and upon her death, the suit house remained closed. On or about 28.7.1975 Madhukar and his wife who were residing in a house bearing Village Panchayat No. 560 in the same village started illegally occupying the suit house and refused to vacate it when called upon to do so. Therefore, the plaintiffs filed above suit for eviction. In the written statement, the defendants claimed that Radhabai was a mundkar along with her two brothers namely Vithal and Babuso. The defendants denied that the suit house had remained closed after the death of Radhabai. It was further pleaded that Madhukar, till he attained the age of 20 years, resided in the suit house with Radhabai and his uncle Babuso and after his marriage although he went to stay in a neighbouring house,he did not loss contact with Babuso and Radhabai and was frequently visiting them. On the basis of the pleadings of the parties, the Civil Court framed issues. One of the issues framed was, whether the defendants were staying in the suit house as mundkars ? Since the issue of mundkarship was within the exclusive jurisdiction of the Mamlatdar, the civil suit was transferred to the Mamlatdar under Goa, Daman and Diu Mundkars (Protection from Eviction ) Act, 1975 (hereinafter referred to as the Mundkar Act, 1975) which had come into force on 12/03/1976.

(3.) THE respondent No. 1 set aside the orders passed by the Mamlatdar and the Additional Collector holding that the findings given by both the authorities were perverse and, therefore, could not be allowed to stand. The respondent no.1 held that the findings recorded by both the authorities below were wholly inconsistent with the pleadings of the petitioners (original defendants) in the suit. The respondent No. 1 held that in the written statement filed by the defendants, they had admitted that Radhabai was mundkar. The respondent No. 1 also placed reliance upon the statements made in the written statement that Madhukar has spent his childhood in the suit house along with his aunt Radhabai and uncle Babuso and after his marriage, although he went to stay in a neighbouring house, he never lost contact with them and he was frequently visiting her to help her in her old age. The respondent No. 1 held that the evidence led by Madhukar that suit house was constructed by his late father about 20 years back, was contrary to the pleadings before the Civil Court. The respondent No. 1 also held that the evidence of Madhukar that husband of Radhabai expired immediately after 2 years after her marriage and his father brought her to the suit house, was contrary to the pleadings. In other words the respondent No. 1 found that the evidence led on behalf of the defendants in the suit before the Mamlatdar, was contrary to the pleadings before the Civil Court and on this ground, the respondent No. 1 held that the findings recorded by both the authorities below were perverse and consequently set aside both orders.