SAGUN DIPU HARMALKAR Vs. RAMAKANT RAMNATH HARMALKAR

JUDGEMENT

(1.) THE respondents (hereinafter referred as plaintiffs) had filed a suit against the appellants (hereinafter referred as defendants) for their eviction from the suit house and vacant possession thereof and also for perpetual injunction from causing any obstruction to the plaintiffs in the enjoyment of the said property. The plaintiffs case, in brief, is that they had purchased the suit property by Sale Deed dated 28-10-67 along with the store room; prior to 26-9-67 the defendants were residing in their parental house at a distance of 50 metres from the suit property but on 26-9-67 they forcibly broke open the lock of the said store room and occupied the same and soon thereafter constructed a kitchen.

(2.) THE defendants, on the other hand, claimed that they were using the said premises as dwelling house as mundkars. This suit was filed on 15-7-68 and on 7-6-1972 the plaintiffs had filed an application under section 10 of the Goa, Daman and Diu (Protection from Eviction of Mundkars, Agricultural Labourers and Village Artisans) Act, 1971 (hereinafter referred as 1971 Act) for declaration that the defendants were not mundkars. When the question of mundkarship was raised by the defendants in the suit, on a joint application filed by both the parties the issue of mundkarship was referred to the Mamlatdar by the Civil Court vide Order dated 21st September, 1977 under section 13 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called the 1975 Act ). It appears that the evidence of both the parties on application under section 10 of the 1971 Act had already been completed prior to 1975 Act came into force and the parties did not lead any evidence after the reference under section 13 was made. The Mamlatdar vide judgment dated 12-9-80 held that the defendants were not mundkars. These findings were confirmed by the Addl. Collector in appeal and by the Administrative Tribunal in Mundkar Revision Application No. 15/81 vide judgment dated 31st August, 1988. The plea of mundkarship was thus finally decided by the Administrative Tribunal. Based upon those findings, the Civil Judge decreed the suit and this decree was upheld by the learned Addl. District Judge, Panaji in appeal vide judgment dated 17th October, 1994. The defendants have come in second appeal challenging the findings of the two courts below and the appeal was admitted on the following substantial questions :---

(3.) LEARNED Advocate Mrs. Agni, appearing on behalf of the appellants/original defendants, urged before me that the substantial question of law which is required to be decided by this Court is: "whether jurisdiction was exercised by the Mamlatdar under 1971 Act or 1975 Act?". According to her, the Mamlatdar had not decided the matter under the 1975 Act and the Addl. Collector in appeal as well as the Administrative Tribunal had overlooked the fact that the Mamlatdar had not decided the controversy of mundkarship in terms of 1975 Act. In fact, if we go through the orders passed by the Mamlatdar, Addl. Collector, Administrative Tribunal Civil Judge as well as the learned Addl. District Judge, it is crystal clear that the appellants had at no stage raised this contention which is being put forward for the first time in the course of arguments. This contention was not even taken in the memo of second appeal as is clear from ground No. 4 wherein it was stated that the lower courts ought to have considered that the evidence recorded under Act of 1971 is not sufficient to decide the issue of mundkarship within the meaning of term Mundkar under the Act of 1975. Thus the ground therein is that the evidence was not sufficient to decide the question of mundkarship within the meaning of 1975 Act. But nowhere it is stated in the appeal memo that the decision of the Mamlatdar was not under 1975 Act. In fact, substantial question (E) also does not raise the issue which is now argued before me in which it is admitted that even though there is a decision of the Mamlatdar that such person is not a Mundkar within the meaning of the term Mundkar under 1975 Act on the basis of evidence recorded under 1971 Act. It is crystal clear from the arguments which were advanced by the Advocate for the defendants before the Mamlatdar, Addl. Collector as well as the Administrative Tribunal that the mundkarship claim was under 1975 Act and that is how the question of section 2 (p) of the 1975 Act had been argued before the said authorities. Insofar as the issue of mundkarship is concerned, the said issue had attained finality with the judgment of the Administrative Tribunal against which no further remedy was sought and this question can certainly not be agitated once again before the Civil Court.