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2004 Supreme(Bom) 1489
Bombay High Court
(November 4, 2004)
Porbuko Uma Mandrekar
Versus
Wencesslay Alex Dsilva
Headnote:Civil Procedure Code, 1908 - Order 41, Rules 4 and 33 - Appeal by defendants - Reversal of decree - Defendant No. 1 joined as respondent to appeal - Not served - Not necessary party for deciding appeal - Entire decree itself can be set-aside. - In this case the son and daughter-in-law of the deceased defendant No. 1 were joined in this appeal as proforma respondents. They might have been at the most proper parties and certainly were not necessary parties for deciding the appeal. This appeal was filed by the remaining defendant Nos. 2 to 4. The case at hand is on all fours with the facts of the case of Mahabir Prasad v. Jage Ram & Ors, AIR 1971 SC 742 : 1971 (3) SCR 301 : 1971 (1) SCC 265 and which has been relied upon in the case of Chandramohan Ramchandra Patil and others v. Bapu Koyappa Patil (Dead) Through L.Rs and others In the case at hand with the aid of provisions of Order 41, Rule 4 read with Order 41, Rule 33, it is possible to reverse the decree in its entirety notwithstanding the fact that original defendant Nos 1(a) and (b) were not served in the present appeal and their names were subsequently deleted. The appeal need not be rejected because there would be inconsistent decrees. In case these appellants/defendants succeed, then the entire decree itself can be set aside. The objection of the plaintiff, therefore fails.
Civil Procedure Code, 1908 - Order 41, Rules 4 and 33 - Appeal against decree by defendant. - Where defendant-1, joined in appeal as proforma respondents therefore decree can be reversed in its entirety notwithstanding fact that defendant 1 was not served in appeal. - (2003) 2 SCC 552, AIR 1970 SC 108 - Relied.
Goa, Daman and Diu Agricultural Tenancy Act, 1964 - Section 58(2) - Jurisdiction to decide issue of tenancy. - Jurisdiction to decide issue of tenancy exclusively given to Mamlatdar and Civil Court has no jurisdiction to decide same. AIR 1966 SC 1427; 1995 (1) SCC 187; 1998 (1) Mh LJ 928 : 1999 Bank J. 274; 1996 (8) SCC 323; AIR 1962 SC 89; AIR 1971 SC 742; AIR 1970 SC 108; 1992 (3) Bom CR 560; (2000) 1 SCC 35; (1998) 3 SCC 751; 1998 (2) Mh LJ 144 : 1998 (4) BCR 441; 1981 Mh LJ 321; 2001 (2) Mh LJ 758 : 2000 (2) Goa LT 15; (1998) 1 Goa LT 429; Second Appeal No. 34 of 1995, dated 25.3.1998 - Referred.
Goa, Daman and Diu Agricultural Tenancy Act, 1964 - Section 58(2) - Jurisdiction of Civil Court - Issue of tenancy - Defendants pleaded themselves as tenants of land - Civil Court lacks jurisdiction to decide the issue - Mamlatdar has exclusive jurisdiction to decide the issue of tenancy. - The defendants having taken a plea that they were tenants which plea was prima facie substantiated and the civil Court having framed an issue of jurisdiction in the light of the said plea and the plaintiff having not taken any steps to get the said issue deleted in course of the trial of the suit or at anytime thereafter in my view, there was not other option to the learned trial Court than to direct the defendants to obtain a declaration from the Mamlatdar in respect of plead of tenancy taken by the defendants, for in case the defendants succeeded in the said plea all that the plaintiff would be entitled to was only to received the purchase period of the land of which the defendants would be the tenants. The learned trial Court could not have decided the issue of tenancy as has been done by the learned trial Court in this case as the jurisdiction to decided the same has been exclusively given to the Mamlatdar by virtue of provisions of the Act referred to hereinabove.
Goa Mundkar (Protection from Eviction) Act, 1975 - Section 25 - Civil Procedure Code, 1908, Section 100 - Second appeal - Against judgment/decree passed by first appellate Court - Suit for declaration - Construction of three huts done by defendants alleged to be illegal - Suit contested by defendants - Claimed to be in possession and enjoyment of suit property - Because deemed owners - Suit decreed - No steps taken by appellants/defendants to effect service on respondent Nos. 2 and 3 despite order of High Court - Appeal against them dismissed - Respondent Nos. 2 and 3 performa respondents - Not necessary parties in deciding appeal - Appeal need not to be rejected because of inconsistent decrees - Plea at tenancy t aken by defendants not vague - Necessarily to be decided by Mamlatdar - Cannot be decided by Civil Court - Judgment/decrees of Courts below li able to be set aside - Defendants directed to obtain declaration of tenancy from Mamlatdar - Second appeal allowed.
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).
What is the effect of joining defendant No. 1 as a respondent and not serving him on the ability to reverse the entire decree under Order 41, Rule 4 read with Rule 33?
What is the jurisdictional issue regarding tenancy under Goa, Daman and Diu Agricultural Tenancy Act, 1964 and Mundkars Protection from Eviction Act in relation to Civil Court authority?
What are the appellate consequences when some respondents are not properly served, yet the decree potentially can be set aside as to all defendants under Order 41, Rule 4?
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 three huts, namely, "h-1", "h-2" and "h-3" and the extension to existing structures namely extension "e-1" and "e-2" done by the defendants were illegal and the defendants be directed to demolish the same and restore the suit property to its original condition. The plaintiff had also prayed for a declaration that the re-construction of "tulas" on the boundary line of the suit property was illegal and a decree be passed directing the defendants to remove the Tulas from the boundary line and re-construct the same if the defendants so required so as to keep a gap of 1. 80 meters between the Tulas and boundary line and also for a declaration that the defendants had no right to construct the barbed wire fencing and the defendants be directed to demolish the barbed wire fencing forthwith and restore the property to its original condition.
( 5 ) THE property known as "santerichem Bhat" and surveyed under No. 2/ 1, admeasuring 6350 sq. mts. belonged to blanche Bertha Amariles Francisco e mendonca and her husband Shri. Jovito Joao mendonca. The same was divided into threeplots and one plot admeasuring 2718 sq. mts. , was purchased by the plaintiff by Deed of Sale dated 6-9-1972. In this portion there was a house of one Uma Bablo Mandrekar, the deceased father of the defendants, who was declared as Mundkar. It was the case of the plaintiff that as mundkar, the said Uma Bablo mandrekar was entitled to purchase 5 meters all around his house or 300 sq. mts. which ever is more to be fixed by the Mamlatdar and besides there were two structures at the back and at the side of the said house of the defendant and in front of the house there was the said Tulas exactly at a distance of 1. 80 mts. from the eastern boundary line of the suit property of the plaintiff.
( 6 ) THE plaintiff claimed that in the year 1984, the said Uma Bablo Mandrekar demolished the existing Tulas and reconstructed the same towards the boundary line thereby occupying a space of 1. 80 mts. as a result of which no space was left between the boundary line and the said Tulas as it existed originally and the said Tulas was constructed without obtaining proper licence and it also blocked the plaintiffs access to the remaining portion of his property from the main public road and that in the same year, the said Uma Bablo Mandrekar put a fence of bamboos and barbed wires which closed the plaintiffs access to the other portion of his property and then the said Uma Bablo mandrekar started stacking hay or dry grass in the property of the plaintiff thereby encroaching nearly 200 sq. mts. of his property. The plaintiff stated that on the death of Uma Bablo Mandrekar, the defendants became entitled to all the rights and claims of the said Uma Bablo Mandrekar but without any rhyme or reason again adopted hostile a
