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N.A.BRITTO
Porbuko Uma Mandrekar – Appellant
Versus
Wencesslay Alex Dsilva – Respondent
Key Points: - The appeal can reverse the decree in its entirety under Order 41, Rule 4 even if original defendant No. 1 was not served and later deleted, as per cited authorities like Mahabir Prasad v. Jage Ram and Chandramohan Ramchandra Patil (p_1, p_15, p_16, p_17). - Jurisdiction over tenancy issues is exclusively with Mamlatdar under the Goa, Daman and Diu Agricultural Tenancy Act, 1964; Civil Court lacks jurisdiction to decide tenancy issues (p_8, p_10, p_11, p_18). - Second appeal can proceed against non-appealing respondents where the decree is common to all, and the entire decree may be set aside for all parties if proper under Order 41, Rule 4; concerns about inconsistent decrees and finality of decrees against respondents No. 2 and 3 are discussed (p_14, p_16, p_17, p_18). - The appellants argued that the decree could be set aside against non-appealing respondents; the judge addresses procedural aspects of serving respondents and effect on the appeal (p_14, p_15, p_16). - The Mundkars Act and tenancy pleas require Mamlatdar declaration; civil court cannot decide tenancy as per Act (p_8, p_10, p_11). - Proceedings discuss whether defendants’ tenancy pleas, if accepted, would alter remedies to be limited to purchase period etc. (p_8, p_10, p_11). - The trial and first appellate courts’ handling of tenancy issue and their outcomes are scrutinized, with emphasis on jurisdictional limits (p_10, p_11). - The case references several precedents reinforcing that a party may appeal a whole decree notwithstanding non-service on a party whose rights are common to all (p_17, p_18).
N. A. BRITTO, J.
( 1 ) THIS is a defendants second Appeal, arising from Regular Civil suit No. 203/88.
( 2 ) THE parties hereto shall be referred to in the names as they appear in the cause title of the said Civil Suit.
( 3 ) BY order of this Court dated 19- 01-01. this second Appeal was admitted on two substantial questions of law which read as follows : where in view of the specific plea raised by the appellants (defendants), to the effect that they were tenants/deemed purchasers of the suit property, by virtue of the provisions of the Agricultural tenancy Act, 1964, the Courts below could have proceeded with the suit and recorded a finding on the issue of tenancy? whether in view of the specific plea raised by the appellants (defendants), that they were tenants/deemed purchasers under the Agricultural tenancy Act, 1964, in respect of the suit property, it was obligatory on the Courts below, to have stayed the suit and directed the appellants to obtain a declaration of tenancy rights in respect of the suit property?
( 4 ) TO get a hang of the controversy, it may be stated, that the plaintiff had filed the said Civil Suit, inter alia, to declare that the construction of thre
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