Naresh H. Patil, J.

This Second Appeal is filed against the Judgment and Decree dated 7th August, 2004 passed by the 1st Ad-hoc Additional District Judge at Panaji in Regular Civil Appeal No. 83 of 2002.

2. The appellant is the original plaintiff. It is the contention of the plaintiff that he resides along with his family in a property known as 'Akhudyachem Bhatlem' situated at Askawada, Mandrem, of Pernem Taluka, survey no. 152/10 and 152/12. The said land belonged to Mr. Gurunath Janardhan Shetye. It is contended that the plaintiff resides in the house situated in the said property in the capacity of Mundkar. The said house is partly situated in survey no. 152/10 and partly in survey no. 152/12. Under a certificate granted by Mamalatdar, the plaintiff was permitted to purchase 300 square metres' area comprising of his dwelling house. The Mamlatdar had issued a certificate to that effect. By virtue of that certificate of purchase, the plaintiff contends that he became the owner in possession of the said 300 square metres' plot which is hereinafter referred to as a 'suit plot'.

3. It is contended that the name of defendant no.1 was recorded as a tenant in respect of survey no.152/12 in the survey record. The original plaintiffs no.2 and 3 are the sons of defendant no.1 and original defendant no.4 is daughter-in-law of defendant no.1. According to the plaintiff, in the month of May, 1991, the defendants illegally put up a temporary hut in the suit plot and on 10/06/1993, they had dug a pit in the suit plot. They had also put up rubber stone layer in the backside of house of the plaintiff which is part of the suit property. The defendant no.1 had also filed a suit against the plaintiff and original owner of the suit property. An application claiming interim relief filed in the said suit, came to be dismissed. The plaintiff prayed for an order of injunction restraining the defendants to interfere in the suit plot and for directing the defendants to remove the hut and restore the land to its original condition.

4. The defendants filed written statement. It is their case that the plaintiff and his family is not residing in Survey no. 152/12. The plaintiff is an agricultural tenant in relation to the property surveyed under No. 152/10 owned by Shri Gurunath Shetye. It is contended by the defendants that the order of purchase of the suit plot was obtained by the plaintiff by playing fraud on the Mamlatdar of Pernem and on the defendants. The Defendant no.1 had filed a suit to restrain the plaintiff from interfering in the portion which falls in Survey No.152/12. The said suit is still pending. The defendant no.1 has also filed an application for declaration. According to the defendant no.1, he has become deemed owner of survey no. 152/12 by virtue of provisions of Agricultural Tenancy Act, 1964. It is contended by the defendant no.1 that the property no.152/12 is in his exclusive possession as a agricultural tenant. The defendants denied the contention that they had dug a pit and had constructed a hut in the property of the plaintiff. According to the defendants, the alleged hut is existing since last 25 years and the same is used by the defendants to store fire wood and other material.

5. The learned Senior Counsel for the appellant submitted that the Lower Appellate Court committed an error in recording finding that the plaintiff had played fraud on the Mamlatdar and the defendants while the suit plot was purchased under an order issued by the Mamlatdar. The learned Senior Counsel submitted that the Lower Appellate Court failed to consider necessary provisions of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (for short 'the 1975 Act') and the Rules framed thereunder. A reference was made to the provision of Section 16(8) of the 1975 Act and on the definition of 'land' as prescribed under the provisions of section 2(11) of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. The learned Counsel su