KAMALAKANT MULLA NAIK Vs. DHARMA DEVBA KALANGUTKAR

JUDGEMENT

(1.) This civil revision application arises out of an order dated 2nd March, 1977 passed by the learned Civil Judge Junior Division, Panaji in Execution Case No. 31/1974 on his file.

(2.) The suit property is a coconut garden. The respondent purchased the same by a deed dated 10th August, 1970. No sooner he entered possession and started plucking the coconuts, the applicant filed Civil Suit No. 133/70 for a permanent injunction and also prayed therein for a temporary injunction restraining the respondent from interfering with the possession of the applicant over the suit property. The Civil Court prima facie came to the conclusion that the applicant was a lessee in respect of the said property and accordingly granted the injunction prayed for by the applicant. When the said Civil Suit was pending, the respondent sent a telegram dated 30th June, 1971 terminating the tenancy of the applicant and further requiring him to hand over the possession to the respondent on 1-1-1972. Since the applicant did not hand over possession the respondent filed a suit being Suit No. 3/72 for possession of the suit property together with mesne profits in the Court of Civil Judge Junior Division, Panaji. The Suit was decreed on 23-3-1974 on the ground that the lease in respect of the suit property was validly terminated by the respondent. The applicant thereupon preferred an appeal against the said judgement and decree to the Court of District Judge. The Addl. District Judge, Panaji who heard it, dismissed the same some time in Nov. 1976. Execution Application No. 31/1974 filed by the respondent soon after the decree by the original Court was passed has been stayed by an Order of the Appellate Court. After the disposal of the appeal referred to above, the order staying the execution proceedings stood automatically vacated and the execution proceedings revived. In the meantime, the Goa, Daman and Diu Agricultural Tenancy (5th Amendment) Act, 1976 had come into force in this Territory. In view of the provision contained in the said Act, the applicant filed an application stating therein that the decree dated 23-3-74 passed by the Civil Judge Junior Division, Panaji in Civil Suit No. 3/72 could not be executed and that the Civil Court had no jurisdiction to proceed with the case. The judgement-debtor who had become the owner of the suit property in view of the provisions of the Act referred to above, could not therefore be evicted therefrom. This objection did not find favour with the learned Civil Judge who by the impugned order rejected the same and ordered that the execution case should proceed. Being aggrieved by the said order, the judgement-debtor has filed this revision petition.

(3.) The principal contention of Shri G.D. Kamat, learned counsel for the. judgement-debtor is that the judgement-debtor was admittedly a tenant of the suit property. He was sought to be evicted on the ground of unlawful cultivation but not on any of the grounds mentioned in Section 11 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. As the judgement-debtor is still in possession of the suit property, he, by fiction of law, is still the tenant and by virtue of the 5th Amendment he has become the owner in respect of the suit land and he cannot be dispossessed therefrom otherwise than in accordance with the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (to be hereinafter called as "the Act"). The contention of Mr. Usgaocar, learned counsel for the respondent, is the tenancy spoken of under the Act is different from the tenancy concerning the suit property. The tenancy in the concerned suit was under the T.P. Act because the land concerned was not an agricultural land within the meaning of "the Act". A garden raised by the landlord was given to the judgement-debtor on lease for plucking, fruits. Such a tenancy is not covered by "the Act". The landlord terminated the tenancy by giving a notice as required under the Transfer of Property Act. It was held by the Civil Court that the notice of termination was in order and that the tenancy was help to have come to an end on 31-12-1971. Thereafter the continuance in possession of the judgement-debtor on the suit property is that of a trespasser. That being the position S.18A of the Act is of no avail to the judgement-debtor because on the tiller s day i.e. on 20th April 1976, he was no longer a tenant. As the condition precedent for availing of the benefit of the 5th Amendment has not been made out, the judgement debtor s plea is not acceptable.