MANUEL CAETANO GONSALVES PATRICIO Vs. ANTONIO BRAGANZA

JUDGEMENT

(1.) THIS petition arises from Order dated 18th July 1998 whereby the trial Court in Regular Civil Suit No. 165/95/c has ordered the deletion of two issues, one, whether the defendant/petitioner proves that the Court lacks jurisdiction to entertain the suit, and the other, pertaining to the claim of agricultural tenancy rights of the petitioner to the suit property.

(2.) THE facts, in brief, relevant for the decision are that the respondent No. 1 has filed the said suit for declaration that the respondent No. 1 has right in the property bearing Survey No. 112/1 of Calapur village pursuant to grant of lease by the respondent No. 2 in respect of the said property for the purpose of extraction of stones since 1971 and further for direction to the Mamlatdar of Record of Rights to register the name of the respondent No. 1 in the Other Rights column in Form I and XIV in respect of the said property as well as for declaration that the petitioner has no right to the suit property and his name from Other Rights column in respect of the said property be deleted. The claim of the respondent No. 1 is not disputed by the respondent No. 2. However, the petitioner who is the defendant No. 2 in the suit, has seriously contested the claim of the respondent No. 1 and it is the contention of the petitioner that the entire property bearing Survey No. 112/1 is an agricultural property and the petitioner is lawful tenant in possession thereof since 1966 and in the course of acquisition of some portion of the said property, he had been paid 50% of compensation by the Government on the ground that the petitioner is tenant in respect of the said property. On the basis of the pleadings of the parties, various issues were framed including the following issues as issues Nos. 5 and 6:-Issue No. 5:---

(3.) UPON hearing the learned Advocates for the parties and on perusal of the records, it is seen that the respondent No. 1 who is the plaintiff in the suit, has categorically stated in the plaint that Lote No. 622 is surveyed under No. 112/1 in the village of Calapur, comprising of rocky and barren land with the exception of some cashew trees towards the southern and eastern portion and the petitioner was allowed to collect cashew apples from the said trees and that in the year 1971 the respondent No. 1 was granted lease by the respondent No. 2 to extract stones from the said property and since then the respondent No. 1 is in possession of the said property for the purpose of extraction of stones, excluding the portion, wherein there were cashew trees and which was acquired by the Government. As against this, the petitioner who is the defendant No. 2 in the said suit, has stated in the written statement that the entire property is an agricultural property and the same is in possession of the petitioner since 1966 as lessee thereof on payment of yearly rent of Rs. 51/- to the respondent No. 2 and the Government had paid 50% of compensation to the petitioner acknowledging him to be the tenant in respect of the said property on acquisition of portion thereof. In the background of these pleadings, it is evident that the claim of the petitioner is that the entire land of the said property is an agricultural land and he is the tenant in respect of the same and in that regard he pays annual rent to the respondent No. 2, who is undisputedly the owner of the property. Though the respondent No. 1 in the plaint has stated that the suit property is rocky and barren land, he has simultaneously also stated that the property comprises of cashew trees towards the south and eastern portion. The presence of the petitioner in the suit property does not appear to be in dispute in view of the pleadings though the exact nature of land of the suit property has to be established in the course of the evidence to be led by the parties. It is, however, undisputed fact that the petitioner was allowed to collect the cashew apples from the cashew trees in the said property. This fact read along with the pleadings of the petitioner to the effect that the suit property was granted on lease to him since 1966 and he has been paying annual rent of Rs. 51/- to the respondent No. 2, disclose clearly the claim of the petitioner to be the tenant of an agricultural property.