Oral Judgment:
Heard Mr. R. G. Ramani, learned counsel appearing for the petitioners and Mr. Sudesh Usgaonkar, learned counsel appearing for the respondent.
2. The above petition challenges the judgment dated 16.05.2011 passed by the learned Administrative Tribunal in Tenancy Revision Application No.66/2004 and Misc. Appln. No.257/2004 whereby the revision preferred by the respondent was allowed and the judgment passed by the learned Mamlatdar dismissing the application filed by the respondent to declare him as tenant of the disputed property came to be set aside. The dispute hanging fire between the petitioners and the respondent for last four decades. It is the claim of the petitioners that the respondent is a caretaker of the disputed property which is surveyed under nos.428/3, 428/4, 408/1 and 420/1 of Village Shiroda in Ponda Taluka. The claim of the respondent is that he is the tenant of the disputed property. It is not in dispute that the disputed property is an areca nut garden. The respondent has filed a suit against the petitioners inter-alia seeking for an injunction to restrain the petitioners from interfering with the disputed property. The suit came to be decreed by the learned Civil Judge Junior Division, Ponda and the appeal preferred by the petitioners before the learned District Judge was allowed. In the meanwhile, the respondent has filed a revision application before this Court which came to be disposed of by judgment dated 24.01.1997. While disposing of Civil Revision Application No.144/1996 in view of the judgment which came to be passed in the meanwhile by the Apex Court in the case of InacioMartins, deceased through L. Rs. V/s Narayan Hari Naik and others, reported in A.I.R. 1993 SC 1756, this Court has come to the conclusion that the Civil Court has no jurisdiction to decide the suit filed by the respondent and consequently, directed the trial Court to return the plaint to the respondent to enable him to present it before the appropriate forum. As such, the application came to be filed before the learned Mamlatdar. The learned Mamlatdar after hearing the parties and permitting the petitioners to file their reply by order dated 18.12.2001 dismissed the application filed by the respondent. Being aggrieved by the said judgment, the respondent preferred an appeal before the learned Dy. Collector which was also dismissed by judgment dated 25.06.2004. Being aggrieved by the judgment passed by the Courts below, the respondent preferred a revision application before the learned Tribunal. The learned Tribunal by judgment dated 13.01.2010 dismissed the revision preferred by the respondent. The orders passed by the said Authorities were assailed by the respondent by preferring a Writ Petition before this Court being Writ Petition No. 546 of 2010. This Court by judgment dated 22.10.2010 disposed of the said Writ Petition by setting aside the judgment passed by the learned Tribunal and remanded the matter to the learned Tribunal for fresh adjudication especially on the ground that the three documents relied upon by the respondent were not considered while passing such impugned judgment. Thereafter, the learned Tribunal by the impugned judgment dated 16.05.2011 allowed the revision petition filed by the respondent and consequently set aside the order passed by the learned Mamlatdar. Being aggrieved by the said judgment, the petitioners have preferred the above Writ Petition.
3. Mr. R. G. Ramani, learned counsel appearing for the petitioners has assailed the impugned judgment essentially on the ground that the learned Tribunal while passing the impugned judgment has substantially considered only the three documents namely the statement of the father of the respondent Ramchandra Dessai, the statement of the petitioner Raghunath Prabhu Sawkar and the alleged agreement in the judgment of the learned Judicial Commissioner dated 15.02.1979 in Writ Petition No. 55/1974. The learned Counsel has pointed out that the learned Tribunal has failed to consider that this Court while remanding the matter kept all the contentions of the parties open and directed the learned Tribunal to reconsider the matter on the basis of all the evidence produced by both the parties on record. The learned counsel further pointed out that the relevancy or the question whether the respondent was entitled to rely upon the said documents was also kept open by this Court. The learned counsel has taken me through the impugned judgment and pointed out that the learned Tribunal has disposed of the revision preferred by the petitioners only by considering the said three documents without at all scrutinizing the material adduced by the petitioners which conclusively establishes that the respondent was merely a caretaker. The learned counsel further pointed out that it was the contention of the petitioners that the said statement could not be relied upon as according to him at the relevant time the Civil Court had no jurisdiction to entertain the proceedings initiated by the respondent. The learned counsel further pointed out that the learned Tribunal has erroneously come to the conclusion that there was no bar of jurisdiction to the Civil Court to decide whether the land is an areca nut garden in terms of the Arecanut Garden Act, 1971. The learned counsel has taken me through the provisions of Section 4 of the said Act and pointed out that any such dispute or question arising in the Civil Court has to be referred to the Mamlatdar. The learned counsel further pointed out that as this exercise was not resorted to by the Civil Court, the evidence recorded before the Civil Court has no legal effect. The learned counsel further pointed out that in any event as far as the evidence of the petitioners is concerned, the question of relying upon such evidence when the petitioner himself has entered the witness box before the Mamlatdar by relying upon Section 33 of the Evidence Act is totally misplaced. The learned counsel further pointed out that even the evidence of the father of the respondent has no relevance as according to him he was available for cross examination. The learned counsel further pointed out that as far as the alleged agreement is concerned, the same cannot be considered as an agreement as observations by the learned Judicial Commissioner was in the context of disposing of an application for temporary injunction. The learned counsel further pointed out that as the learned Tribunal has not scrutinized the evidence adduced by the petitioners to substantiate their contention that the respondent was merely a caretaker of the disputed property, the learned Tribunal has failed to exercise the jurisdiction vested in it as directed by this Court while disposing of the said Writ Petition and as such the impugned judgment passed by the learned Tribunal deserves to be quashed and set aside.
4. On the other hand, Mr. Sudesh Usgaonkar, learned counsel appearing for the respondent has pointed out that there is no infirmity committed by the learned Tribunal while disposing of the revision preferred by the respondent. The learned counsel has pointed out that even assuming that the deposition which has been recorded by the Civil Court was without jurisdiction nevertheless, such statement is a statement on oath recorded by the Civil Court and hence there is no reason why such statement being a previous statement of the witness cannot be considered for the purpose of confronting the witness. The learned counsel further pointed out that the petitioner was confronted with his previous statement in the Civil Court and as such, the contention of Mr. Ramani, learned counsel appearing for the petitioners that such evidence cannot be considered has no substance. The learned Counsel further pointed out that the father of the respondent had already expired and as such he was not available for deposition before the authorities below and as such in view of the provisions of Section 33 of the Evidence Act, such evidence becomes relevant. The learned counsel further pointed out that as such the learned Tribunal was justified to rely upon the said deposition and come to the conclusion that the respondent has established his claim of tenancy. The learned counsel further pointed out that in the order passed by the Judicial Commissioner, there is a specific statement recorded therein that the petitioners were permitted to receive the rent deposited by the respondent which according to him itself suggest that the petitioners have accepted that the respondent was a tenant of the disputed property. The learned counsel has thereafter taken me through the impugned judgment and pointed out that though the learned Tribunal has not scrutinized the material adduced by the petitioners before the learned Mamlatdar, nevertheless, considering the said clinching documents/evidence produced by the respondent such evidence can by no stretch of imagination supports the contention of the petitioners that the respondent was mere a caretaker. The learned counsel as such submits that no case is made out by the petitioners for any interference in the impugned judgment under Article 227 of the Constitution of India.
5. I have considered the submissions of the learned counsel and with the assistance of the learned counsel I have also gone through the records. While disposing of Writ Petition No. 546 of 2010, this Court at para 9 has clearly observed inter-alia that the matter deserves to be remanded to the First Appellate Court for re-consideration of the entire matter in the light of the said three documents. In such circumstances, it was not open to the learned Tribunal to shut its eyes to the documents and the material produced by the petitioners while passing the impugned judgment only on the basis of the said three documents. The learned Tribunal while disposing of the said revision application has erroneously assumed that the learned Tribunal was supposed to examine the case of the respondent only on the basis of the said three documents when considering the said observations of this Court, such exercise is not at all justified. On perusal of the impugned judgment, I find no reference to any of the evidence adduced by the petitioners and as such on this ground alone the impugned judgment stands vitiated.
6. With regard to the contention of Mr. Ramani, learned counsel appearing for the petitioners to the effect that at the relevant time the provisions of Arecanut Gardens Act, 1971 were in force which inter-alia bars the jurisdiction of Civil Court to consider whether the property was an areca nut garden or not is also to be accepted in view of Section 4 of the said Act. The learned Tribunal has erroneously gone to the extent of holding that at the relevant time the Civil Court had jurisdiction to decide such dispute. Considering that the said findings in the impugned judgment are by misreading the provisions of Arecanut Gardens Act, 1971, I find that in such circumstances, whether the statement relied upon by the respondent can be considered to be evidence in the present proceedings is also a matter to be considered in accordance with law. No doubt, Mr. Usgoankar, learned counsel appearing for the respondent may be prima facie justified to contend that such statement can be treated to be a previous statement for the purpose of confronting the witness in terms of Section 145 of the Evidence Act. On perusal of the impugned judgment, I find that the learned Tribunal has not considered at all the said aspect on those lines. The learned Tribunal has considered the said statement as if they are part of the evidence before the Mamlatdar. The learned Tribunal has proceeded to assume that the evidence recorded in the earlier proceedings could be treated as evidence in the proceedings before the learned Mamlatdar. This approach of the learned Tribunal is totally erroneous as it is well settled that evidence in one proceedings cannot by itself be treated to be evidence in any other proceedings.
7. Considering that the evidence of the petitioners has not at all been scrutinized by the learned Tribunal while passing the impugned judgment, I find that it would be appropriate to remand the matter back to the learned Tribunal to decide the revision preferred by the respondent in the light of the observations made herein above in accordance with law. The learned Tribunal shall also consider that any observations by the learned Judicial Commissioner in any proceedings challenging the disposal of an application for temporary injunction are prima facie and cannot be binding at the final stage. Mere terminology of using the word 'tenant' in such proceedings cannot suggest that the tenancy is created in favour of the respondent. Keeping all contentions of both the parties open, I find it appropriate to quash and set aside the impugned judgment passed by the learned Tribunal dated 16.05.2011 and direct the learned Tribunal to decide the revision application filed by the respondent afresh in accordance with law.
8. In view of the above, I pass the following:
ORDER
(i) The impugned judgment dated 16.05.2011 is quashed and set aside.
(ii) The learned Tribunal is directed to decide the revision application preferred by the respondent afresh after hearing the parties in accordance with law as expeditiously as possible without being influenced by any observations herein.
(iii) All contentions of both the parties on merits are left open.
(iv) Rule is made absolute in above terms.
(v) The parties are directed to appear before the learned Tribunal on 17.09.2013 at 10.00 a.m.
(vi) The petition stands disposed of accordingly.