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IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 396 OF 2009

1.

Shri Balkrishna Puno Naik,

(since deceased)

Through legal representatives :

1a)

Shri Vaikunth Balkrishna Naik

1b)

Shri Gurunath Balkrishna Naik

Both residents of House No.97,

Wadiwada, Kundaim, Ponda-

Goa.

..

Petitioners

Versus

1.

The Communidade of Kundaim

Having office at Kundaim,

Ponda-Goa and represented by

its Procurador.

2.

The Administrator of Communidade

Office of the Administrator of

Communidade, Church Square,

Panaji.

3.

Shri Gopi Puno Naik,

Son of late Shri Puno Naik

Major of age, married,

business, residing at

Wadiwada, Kundaim,

Ponda- Goa.

..

Respondents.

Mr. G. Teles, Advocate for the petitioners.

Mr. Rohit Bras De Sa, Advocate for the respondents.

CORAM :- U. D. SALVI, J.

DATE OF RESERVING

THE

ORDER

: 16

^th October, 2009.

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DATE OF PRONOUNCING

THE

ORDER

: - 6/11/2009

ORDER :

1.

The petitioners, the legal representatives of the

deceased Balkrishna Puno Naik, are challenging the orders

dated 28.11.1996, 4.11.1997 and 2.12.2005 rejecting their

plea for declaration regarding agricultural tenancy in respect

of the land popularly known as Hodye-Mol village Kundaim,

Tal. Ponda, Goa belonging to the respondent No.1

Communidade of Kundaim throughout by Joint Mamlatdar II,

Deputy Collector and Administrative Tribunal, Goa

respectively in succession.

2.

The petitioners' predecessor, the deceased

Balkrishna Puno Naik, moved an application before the

Mamlatdar at Ponda, Goa seeking a declaration that he was /

is the tenant of the respondent No.1 Communidade of

Kundaim in respect of the aforesaid landed property at

village Kundaim and for deletion of name of the respondent

No.3 Gopi Naik, his brother as an agricultural tenant from

Survey records. Several facts and circumstances for

establishing the claim as an agricultural tenant of the

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respondent No.1 Communidade as against the recognition of

the respondent No.3 Gopi Naik as an Agricultural tenant in

his place are pleaded by the deceased Balkrishna in the said

application moved before the Mamlatdar. The respondents

joined the issues with their replies denying the relevant fact

and circumstances pleaded by Balkrishna to advance his case

as an agricultural tenant in possession, enjoyment and

occupation of the said landed property. The respondent No.3

Gopi, besides pleading his status as an agricultural tenant of

the said landed property, raised preliminary objection

regarding the maintainability of the said application without

any further elaboration in that regard. The respondent No.1

Communidade not only disputed the claim made by

Balkrishna to the tenancy in respect of the said landed

property but also disputed the status of the respondent No.3

Gopi as its agricultural tenant and revealed that the

application under Section 7 of the Agricultural Tenancy Act

to decide the question of tenancy claimed by opponent/

respondent No.3 Gopi in respect of the said landed property

was pending before the Mamlatdar. The plea thus raised by

the petitioners' predecessor Balkrishna in respect of the

Agricultural Tenancy came to be rejected by the Joint

Mamlatdar-II of Ponda in response to the preliminary

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objection regarding the maintainability of such plea on the

premise that it was a dispute between two tenants over one

and the same landed property and the Mamlatdar had no

jurisdiction to look into said controversy and the Civil Court

was competent to resolve such controversy. The Joint

Mamlatdar-II of Ponda based her decision on the judgment of

the Single Judge of this Court reported in 1995(1) Goa Law

Times 97 and

1996(5) Bombay Cases Reporter 416 Inacio

Mariano Dias and Others versus Palmira Valadares.

3.

The decision of the Joint Mamlatdar-II of Ponda

vide order dated 28.11.1996 wa