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1978 Supreme(Goa) 14
Goa High Court
K. M. MISHRA ADDL. J.C.
Kamalakant Mulla Naik - Appellant
Versus
Dharma Devba Kalangutkar - Respondents
Civil Revn. Appln. No. 39 of 1977
Decided On : 6 December 1978
G.D. Kamat, for Applicant; M.S. Usgaocar, for Respondent.
A person who is not a tenant within the meaning of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 is not entitled to the protection against eviction provided by the Act.
Headnote:
GOA, DAMAN AND DIU AGRICULTURAL TENANCY ACT, 1964 - SECTION 11, 18A, 18(2), 18(4) - TENANCY - TERMINATION - EVICTION - TILLERS DAY - PROTECTION AGAINST EVICTION - APPLICABILITY - TRESPASSER - JURISDICTION OF CIVIL COURT.
Fact of the Case:
The respondent purchased a coconut garden in 1970 and entered into possession. The applicant filed a suit for a permanent injunction and a temporary injunction restraining the respondent from interfering with his possession. The Civil Court granted the injunction, finding that the applicant was a lessee. The respondent sent a telegram in 1971 terminating the tenancy and requiring the applicant to hand over possession. The applicant did not hand over possession, so the respondent filed a suit for possession and mesne profits, which was decreed in 1974. The applicant appealed the decree, but it was dismissed in 1976. The respondent filed an execution application, which was stayed by the Appellate Court. After the appeal was dismissed, the execution proceedings revived. In the meantime, the Goa, Daman and Diu Agricultural Tenancy (5th Amendment) Act, 1976 came into force, which defined "agriculture" to include garden produce and defined "garden" as land used for cultivating coconut trees. The applicant filed an application stating that the decree could not be executed and that the Civil Court had no jurisdiction to proceed with the case, as he had become the owner of the suit property under the Act. The Civil Judge rejected the application and ordered that the execution case should proceed.
Finding of the Court:
The court held that the applicant was not a tenant within the meaning of the Goa, Daman and Diu Agricultural Tenancy Act, 1964, as his tenancy had been terminated before the Act came into force. Therefore, he was not entitled to the protection against eviction provided by the Act. The court also held that the Civil Court had jurisdiction to proceed with the execution case, as the applicant was a trespasser and not a tenant.
Issues: 1. Whether the applicant was a tenant within the meaning of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. 2. Whether the applicant was entitled to the protection against eviction provided by the Act. 3. Whether the Civil Court had jurisdiction to proceed with the execution case.
Ratio Decidendi: 1. The court held that the applicant was not a tenant within the meaning of the Act, as his tenancy had been terminated before the Act came into force. 2. The court held that the applicant was not entitled to the protection against eviction provided by the Act, as he was not a tenant within the meaning of the Act. 3. The court held that the Civil Court had jurisdiction to proceed with the execution case, as the applicant was a trespasser and not a tenant.
Final Decision: The revision application was dismissed on contest with costs.
ORDER :- This civil revision application arises out of an order dated 2nd March, 1977 passed by the learned Civil Judge Junior Division, Panaji in Execution Case No. 31/1974 on his file.
2. The suit property is a coconut garden. The respondent purchased the same by a deed dated 10th August, 1970. No sooner he entered possession and started plucking the coconuts, the applicant filed Civil Suit No. 133/70 for a permanent injunction and also prayed therein for a temporary injunction restraining the respondent from interfering with the possession of the applicant over the suit property. The Civil Court prima facie came to the conclusion that the applicant was a lessee in respect of the said property and accordingly granted the injunction prayed for by the applicant. When the said Civil Suit was pending, the respondent sent a telegram dated 30th June, 1971 terminating the tenancy of the applicant and further requiring him to hand over the possession to the respondent on 1-1-1972. Since the applicant did not hand over possession the respondent filed a suit being Suit No. 3/72 for possession of the suit property together with mesne profits in the Court of Civil Judge Junior Division, Panaji. The Suit was decreed on 23-3-1974 on the ground that the lease in respect of the suit property was validly terminated by the respondent. The applicant thereupon preferred an appeal against the said judgement and decree to the Court of District Judge. The Addl. District Judge, Panaji who heard it, dismissed the same some time in Nov. 1976. Execution Application No. 31/1974 filed by the respondent soon after the decree by the original Court was passed has been stayed by an Order of the Appellate Court. After the disposal of the appeal referred to above, the order staying the execution proceedings stood automatically vacated and the execution proceedings revived. In the meantime, the Goa, Daman and Diu Agricultural Tenancy (5th Amendment) Act, 1976 had come into force in this Territory. In view of the provision contained in the said Act, the applicant filed an application stating therein that the decree dated 23-3-74 passed by the Civil Judge Junior Division, Panaji in Civil Suit No. 3/72 could not be executed and that the Civil Court had no jurisdiction to proceed with the case. The judgement-debtor who had become the owner of the suit property in view of the provisions of the Act referred to above, could not therefore be evicted therefrom. This objection did not find favour with the learned Civil Judge who by the impugned order rejected the same and ordered that the execution case should proceed. Being aggrieved by the said order, the judgement-debtor has filed this revision petition.
3. The principal contention of Shri G.D. Kamat, learned counsel for the. judgement-debtor is that the judgement-debtor was admittedly a tenant of the suit property. He was sought to be evicted on the ground of unlawful cultivation but not on any of the grounds mentioned in Section 11 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. As the judgement-debtor is still in possession of the suit property, he, by fiction of law, is still the tenant and by virtue of the 5th Amendment he has become the owner in respect of the suit land and he cannot be dispossessed therefrom otherwise than in accordance with the provisions of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (to be hereinafter called as "the Act"). The contention of Mr. Usgaocar, learned counsel for the respondent, is the tenancy spoken of under the Act is different from the tenancy concerning the suit property. The tenancy in the concerned suit was under the T.P. Act because the land concerned was not an agricultural land within the meaning of "the Act". A garden raised by the landlord was given to the judgement-debtor on lease for plucking, fruits. Such a tenancy is not covered by "the Act". The landlord terminated the tenancy by giving a notice as required under the Transfer of Property
