JUDGMENT - Dr. DA SILVA E.S., J.:—Can in a given proceeding instituted by the plaintiff against the original defendant for recovery of possession on the ground of illegal occupation of a dwelling house and whose claim of mundkarship raised under the Goa, Daman and Diu (Protection from Eviction of Mundkars) Act, 1971 (hereinafter called the Act of 1971) was negatived by the Mamlatdar, his widow who after his death was impleaded in the suit as a party/defendant raise on her own the plea of mundkarship again in the same proceedings by availing of the benefit of the wider definition of the concept of mundkar in the subsequent enactment, namely, the Goa, Daman and Diu (Protection from Eviction of Mundkars) Act, 1975 (hereinafter called the Act of 1975)? And is it permissible for the trial Judge to reframe the issue in the same proceedings or add a new issue containing the widow's plea of mundkarship when a similar one had been already answered against her late husband by the concerned authority and refer its adjudication to the competent Mamlatdar? These are the points which arise for determination in this revision.

2. The relevant facts of the case are that the petitioner had instituted a suit against the original deceased Narayan Ratwal for termination of licence given to him to occupy part of his house and peaceful possession of the suit house under his and his family's occupation.

3. The original defendant resisted the suit and claimed to be a mundkar of the premises under the provisions of the Act of 1971. Accordingly one issue was framed and a reference made to the Mamlatdar who by his order dated 11th November, 1972 decided that the deceased defendant was not a mundkar of the suit premises. The Civil suit which had been stayed after this issue was referred to the Mamlatdar was then fixed for trial but in the meantime Narayan expired on 5-12-1982. Thereupon the petitioner made an application dated 22-2-1983 to bring on record the heirs and legal representatives of the deceased Narayan namely his children and widow, Rukmini who is the respondent No. 4 in the petition.

4. By order dated 15-2-1984 the Civil Judge holding that the widow of Narayan was a necessary party in the suit as she was the holder of the moiety right rejected the petitioner's prayer to bring her as the legal representative of Narayan and allowed the application as far as the children were concerned. In the aforesaid order the learned Judge observed that if the widow was to be brought on record as legal representative of her deceased husband this would amount to his bringing a necessary party on record through the back door. It may be mentioned at this stage that at no time Narayan had raised before the Court the question of non-joinder of necessary party by the plaintiff in respect of the suit filed by the petitioner against him only. The petitioner then filed a revision to the High Court against this order of the Civil Judge. However, at the time of hearing on the submission made by the learned Counsel for the respondents that the dismissal of the petitioner's application to bring on record the widow of the deceased had been based on the fact that she was not the legal representative of her late husband which position was entirely correct and since the widow of the original defendant was a necessary party nothing could prevent the petitioner from joining her as a party, giving at the same time an undertaking that, if such an application was made in the trial Court, the respondents would not oppose it, the learned Counsel for the petitioner submitted that in view of that statement, he would not press the revision application and accordingly withdrew the same so as to join the widow of the original defendant as defendant in the suit. Accordingly the application of the petitioner was granted and the revision petition allowed to be withdrawn. Thereupon the petitioner moved an application before the trial Court stating that in view of the undertaking given on behal

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