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IN THE HIGH COURT OF BOMBAY AT GOA BENCH
U.V. Bakre, J.
Conservator of Forest - Appellant
Vs.
Vinayak M. Fotto - Respondent
Second Appeal No. 34 of 2004
Decided On : 19.09.2014
Agricultural Tenancy Act - Possession - Section 80 of the Code of Civil Procedure - Land Revenue Code - [Section 80 of CPC, Agriculture Tenancy Act] - The court discussed the possession of the suit property, the lease agreement, and the evidence of possession presented by the parties. The court considered the provisions of Section 80 of the CPC and the Land Revenue Code in determining the possession and tenancy rights of the parties. The court found that the plaintiff established possession and tenancy rights, leading to the decree of possession in favor of the plaintiffs.
Fact of the Case:
The suit involved a dispute over possession and permanent injunction of a property. The plaintiffs claimed to be in possession of the property as a tenant/deemed purchaser, while the defendants contested the claim and alleged possession under a Social Forestry Scheme.
Finding of the Court:
The trial court dismissed the suit, finding that the plaintiff failed to prove possession and tenancy rights. The first appellate court, however, reversed the decision, holding that the plaintiff established possession and tenancy rights, leading to the decree of possession in favor of the plaintiffs.
Issues: The issues included the plaintiff's possession and tenancy rights, the non-joinder of necessary parties, and the defendants' possession under the Social Forestry Scheme.
Ratio Decidendi: The court found that the plaintiff established possession and tenancy rights, supported by evidence such as lease agreements, rent receipts, and survey records. The court also considered the provisions of Section 80 of the CPC and the Land Revenue Code in determining the possession and tenancy rights.
Final Decision: The second appeal was dismissed, and the decree of possession was granted in favor of the plaintiffs, with the defendants allowed to harvest and take away the trees planted under the Social Forestry Programme within a specified period.
U.V. Bakre, J.
1. Heard learned Counsel for the respective parties.
2. This Second Appeal is directed against the judgment and decree dated 26/06/2003 passed by the learned Additional District Judge, Mapusa ("First Appellate Court", for short) in Regular Civil Appeal No. 40/2001. The said appeal was filed against the Judgment and decree dated 16/02/2001 passed by the learned Civil Judge Senior Division, Bicholim ("trial Court", for short) in Regular Civil Suit No. 9/1989.
3. The appellants and respondent no.7 were the defendants in the said suit whereas respondents no. 1 to 6 were the plaintiffs. The parties shall hereinafter be referred to as per their status in the said suit.
4. The original plaintiff had filed the said suit for recovery of possession and permanent injunction. The case of the plaintiffs, in short, was as follows:
The original plaintiff was in possession of the suit property known as "Dongrat" or "Khairat" situated at Revora, Bardez, Goa and bearing survey no.176/0, as tenant/deemed purchaser. The said property was belonging to defendant no. 3 and leased to him prior to independence and he was regularly paying rent to the defendant no. 3 and extracting cashew juice from the apples collected from the suit property. The defendant no. 1 started plantation of trees near the area of the said property bearing survey no. 176/0 and intended to extend the planting operation in the suit property. The defendants no. 1 and 2, without any right, forcibly took possession of the suit property from the plaintiff. Notice under Section 80 of the Code of Civil procedure (C.P.C.) was issued to the defendants no. 1 and 2 but they failed to hand over the possession. Hence, the suit.
5. The defendants no. 1 and 2, by their written statement, alleged as follows:
The suit property had been given to the defendant no.1, by the defendant no. 3 for planting purposes under Social Forestry Scheme from June, 1986. The defendant no. 3 in its meeting dated 11/05/1986 gave consent for afforestation in the suit property and, therefore, the defendants no. 1 and 2 are in exclusive possession of the suit property from June, 1986 and have carried out plantation work. The suit property is not a cashew garden but a barren land with a few cashew trees. The plaintiff was in possession of the suit property for a temporary period from 1965 to 1967 and thereafter the possession was taken back by the defendant no. 3 as no works were done by the plaintiff. The plaintiff had paid an amount of Rs. 9/- only for the limited period from 1965 to 1967 and, therefore, the plaintiff has not been in possession.
6. The defendant no. 3 Communidade did not file any written statement and also did not contest the claim of the plaintiffs.
7. Following issues were framed by the trial Court:
(i) Whether the plaintiff proves that he was in possession of the suit property till 1987 which was leased to him prior to independence?
(ii) Whether the defendants no. 1 and 2 proves that suit suffers from the non-joinder of necessary parties, namely Shri Tukaram Krishna Sawant, Shri Jairam Shankar Sawant and Chandrakant Mukund Sawant?
(iii) Whether the defendants no. 1 and 2 prove that under the programme of Social Forestry, the suit property was given to defendant no.1 for planting purpose under Social Forestry scheme from June, 1986 and since that time they alongwith State of Goa are exclusively in possession and occupation of the suit property?
8. The plaintiffs examined Vinayak M. Fotto, the plaintiff no. 1(a) as PW1, Shri Everesto Sa Pinto as PW2 and one Anant L. Mayekar as PW3. The defendants no. 1 and 2 examined the Range Forest Officer namely Shrinivas Gawas Dessai as DW1 and one Jana L. Naik, Deputy Range Forest Officer as DW2.
9. Upon consideration of the entire evidence on record, the trial Court found that the plaintiff did not produce any declaration from the Competent Authority i.e. the Court of Mamlatdar establishing that he is the tenant of the suit property. The trial Cour
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