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2012 Supreme(Bom) 1638
In the High Court of Bombay at Goa
U.V. BAKRE
Sadashiv D. Naik
Versus
Umesh Krishna Sawanth
SECOND APPEAL NO.114 OF 2003
Decided on : 31-08-2012
For the Appellant:S.D. Lotlikar, Senior Advocate with K.B. Surjuse, Advocate.
For the Respondent:Shivan Dessai, Advocate.
Headnote:Evidence Act, 1872 - Section 114 - Presumption under.
If tenancy is executed by more than one tenant then presumption of common tenancy can be drawn rather than a joint one. - It is observed that the presumption in this country always points out to the fact that a tenancy executed by more than one tenant is a common tenancy rather than a joint one and that common tenancy postulates that each tenant should have only a share in the tenancy. In both the above cases, the tenancy was in respect of building and under the Rent Act. In the present case, Court is concerned with agricultural tenancy of cultivable land under the Agricultural Tenancy Act. The above citations cannot be applied to the present case.
Admittedly, the defendant was doing construction with laterite stones and wanted to make a permanent construction in the suit paddy field. Additional Judicial Commissioner has held that a co- owner in possession of the joint property has no right to change the user of that property without the consent of other co-owners and if he does so by starting digging operations with a view to erect a house on joint property and aggrieved co-owner comes to the Court with due promptness for restraining him from raising a building, the Court can very legitimately decree prohibitory injunction. It has been further held that if in the mean time, any structure has been raised, a decree for mandatory injunction can also be granted. Since one co-owner cannot do any construction in the joint property without the consent of other co-owners, the suit filed by the plaintiff ought to have been decreed. Therefore, the plaintiff is bound to succeed in the present appeal.
Goa, Daman & Diu Agricultural Tenancy Act, 1964 - Section 13-A - Applicability of.
When landlord intends to sell land cultivated by tenant to a third party, Section 13-A of Act attracted.
Transfer of Property Act, 1882 - Section 52 - Sale of land pending suit.
Where a portion of suit land was purchased by defendant’s mother therefore sale deed neither binds plaintiff nor affects his rights. - The provision of Section 52 of the T.P. Act is based on the maxim "pendente lite nihil innovetur" which means that pending a litigation nothing new should be introduced. The suit was filed by the plaintiff on 21.4.1999. The defendant and his mother, Smt. Radhabai inherited tenancy from Krishna Sawant, the late husband of Smt. Radhabai and father of defendant. The mother of the defendant purchased the portion of the suit paddy field by sale deed dated 10.6.1999, presented for registration on 28.6.1999, which is during the pendency of the suit. The purchase by mother is on her behalf as also on behalf of the defendant. In paragraph 3 of the written statement, the defendant has pleaded that he has purchased the part of the land which he was in possession from the bhatkar Shri Vassudeo Deshprabhu by virtue of sale deed dated 28.6.1999. No portion of the suit paddy field could have been dealt with by the defendant, during the pendency of the suit, so as to affect the right of the plaintiff. Therefore, the sale Deed dated 28.6.1999 is not binding on the plaintiff and cannot affect his rights.
GOA, DAMAN AND DIU AGRICULTURAL TENANCY ACT, 1964 - Section 13-A - Civil Procedure Code, 1908, Section 100 - Second appeal - Against judgment and decree dated 7.10.2003 of First Appellate Court, dismissing appeal filed by plaintiff against judgment and decree dated 31.12.2001 of Trial Court dismissing suit for permanent and mandatory injunction against defendant - Appellant-plaintiff contended that finding of first Appellate Court based on sale deed 10.6.1999 to effect that since defendant’s mother had purchased portion vide sale deed, plaintiff cannot stop defendant from doing construction in his portion is erroneous and plaintiff, as a co- owner is entitled to permanent and mandatory injunction.
Held - Finding recorded by First Appellate Court erroneous and unjustified - One co-owner cannot do any construction in joint property without consent of other co-owners - Suit filed by plaintiff ought to have been decreed - Impugned judgments and orders quashed and set aside - Appeal allowed.
There is no dispute that every co-owner will be entitled to claim every inch of the land jointly held by him along with other co- owners. Therefore, holding that one co-owner could go ahead with the construction in the land without permission of the other co- owners is certainly not correct.
It is true that the defendant in the written statement has pleaded that the tenants of the suit paddy field are holding separate holding as the suit paddy field is sub - divided amongst the tenants. It is true that the defendant has pleaded that he is in possession of a separate holding through his grandfather. It is also true that in the evidence it has come that all the co- tenants are separately cultivating the suit paddy field as per their respective shares and that the plaintiff is cultivating separate portion and this is from the time of ancestors. According to D.W. 1 (defendant), there was oral partition.
There are no separate sub-divisions of the suit paddy field recorded separately in the name of each tenant. Therefore, the finding of the first Appellate Court to the effect that the plaintiff, the defendant and others are joint tenants is not erroneous.
It is observed that the presumption in this country always points out to the fact that a tenancy executed by more than one tenant is a common tenancy rather than a joint one and that common tenancy postulates that each tenant should have only a: share in the tenancy. In both the above cases, the tenancy was in respect of building and under the Rent Act. In the present case, Court is concerned with agricultural tenancy of cultivable land under the Agricultural Tenancy Act. The above citations cannot be applied to the present case.
If in the mean time, any structure has been raised, a decree for mandatory injunction can also be granted. Since one co-owner cannot do any construction in the joint property without the consent of other co-owners, the suit filed by the plaintiff ought to have been decreed. Therefore, the plaintiff is bound to succeed in the present appeal.
This is plaintiff's Second Appeal.
2. The plaintiff had filed Regular Civil Suit no. 23/1999 against the respondent (defendant) for permanent injunction to restrain the defendant, his agents, servants, etc. from interfering with and doing any illegal construction of house in the suit paddy field and for mandatory injunction directing the defendant to fill the trenches and to demolish any construction done in the suit paddy field during the pendency of the suit and to restore the land to its original condition.
3. It was alleged by the plaintiff that he is a cotenant in possession of the suit paddy field known as “Karpan Moli” bearing survey no. 307/10 situated in the village of Arambol at Varcha Wada and his name is recorded in the tenant's column of Form No. I and XIV as co-tenant. By virtue of Fifth Amendment to the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (Agricultural tenancy Act), he became the deemed purchaser of the suit paddy field along with other co-tenants. Since the defendant started construction of a house in the suit paddy field without consent of the plaintiff and without taking permissions from competent authorities, the plaintiff filed the suit.
4. The defendant, in the written statement, pleaded that the suit paddy field has been divided amongst all the tenants and that the defendant is in possession of a separate holding in the suit paddy field through his grandfather late Shri Raghoba Krishna Sawant which is to the knowledge of the plaintiff and other co-tenants who are also in possession of separate holdings and nobody has interfered with the said portion of land which is in possession of the defendant. The defendant has purchased the said portion which was in his possession from the landlord Shri Vassudev Deshprahbu by sale deed dated 28/6/1999 which is duly registered. The said portion has been purchased by mother of the defendant. There was an old structure of the defendant in the said separate holding and it was constructed after the survey operation and the defendant wanted to repair the said hut and make it a permanent construction.
5. The learned Civil Judge, Junior Division at Pernem (trial Court), upon analysis of the evidence produced by the parties, vide the judgment and decree dated 31/12/2001, held that the suit paddy field is divided amongst all the tenants. The trial Court held that the plaintiff is one of the tenants in possession of a part of the suit paddy field, but is not a co-tenant of the entire suit paddy field, since the unity of possession of the suit paddy field is missing. Since the construction started by the defendant was not in the portion in possession of the plaintiff as tenant, the trial Judge held that the plaintiff had no cause of action to file the suit. The trial Court further found that by sale deed dated 28/6/1999, (Exhibit D.W.1/A), the defendant has purchased the area which was previously in his possession as tenant and that the construction falls in the said portion. The suit, therefore, came to be dismissed.
6. The plaintiff filed Regular Civil Appeal No. 7/2002 against the judgment and decree dated 31/12/2001 passed by the trial Court. The learned Additional District Judge (II) (hereinafter referred to as the first Appellate Court), vide judgment and decree dated 7/10/2003, held that the suit paddy field is possessed by various tenants and that the plaintiff is one of them. The first Appellate Court further held that the respondent is also a co-tenant of the suit paddy field, presently the co-owner of the same, pursuant to his purchase by sale deed dated 10/6/1995 and the suit paddy field has not been partitioned by metes and bounds. The learned first Appellate Court held that the trial Judge did not consider the concept of tenancy in proper perspective and has wrongly given the status to the parties of being tenants of their respective portions by loosing site of the fact that the Civil Court has no jurisdiction to infer title of being the agr
