This is plaintiff's Second Appeal.
2. The plaintiff had filed Regular Civil Suit no. 23/1999 against the respondent (defendant) for permanent injunction to restrain the defendant, his agents, servants, etc. from interfering with and doing any illegal construction of house in the suit paddy field and for mandatory injunction directing the defendant to fill the trenches and to demolish any construction done in the suit paddy field during the pendency of the suit and to restore the land to its original condition.
3. It was alleged by the plaintiff that he is a cotenant in possession of the suit paddy field known as âKarpan Moliâ bearing survey no. 307/10 situated in the village of Arambol at Varcha Wada and his name is recorded in the tenant's column of Form No. I and XIV as co-tenant. By virtue of Fifth Amendment to the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (Agricultural tenancy Act), he became the deemed purchaser of the suit paddy field along with other co-tenants. Since the defendant started construction of a house in the suit paddy field without consent of the plaintiff and without taking permissions from competent authorities, the plaintiff filed the suit.
4. The defendant, in the written statement, pleaded that the suit paddy field has been divided amongst all the tenants and that the defendant is in possession of a separate holding in the suit paddy field through his grandfather late Shri Raghoba Krishna Sawant which is to the knowledge of the plaintiff and other co-tenants who are also in possession of separate holdings and nobody has interfered with the said portion of land which is in possession of the defendant. The defendant has purchased the said portion which was in his possession from the landlord Shri Vassudev Deshprahbu by sale deed dated 28/6/1999 which is duly registered. The said portion has been purchased by mother of the defendant. There was an old structure of the defendant in the said separate holding and it was constructed after the survey operation and the defendant wanted to repair the said hut and make it a permanent construction.
5. The learned Civil Judge, Junior Division at Pernem (trial Court), upon analysis of the evidence produced by the parties, vide the judgment and decree dated 31/12/2001, held that the suit paddy field is divided amongst all the tenants. The trial Court held that the plaintiff is one of the tenants in possession of a part of the suit paddy field, but is not a co-tenant of the entire suit paddy field, since the unity of possession of the suit paddy field is missing. Since the construction started by the defendant was not in the portion in possession of the plaintiff as tenant, the trial Judge held that the plaintiff had no cause of action to file the suit. The trial Court further found that by sale deed dated 28/6/1999, (Exhibit D.W.1/A), the defendant has purchased the area which was previously in his possession as tenant and that the construction falls in the said portion. The suit, therefore, came to be dismissed.
6. The plaintiff filed Regular Civil Appeal No. 7/2002 against the judgment and decree dated 31/12/2001 passed by the trial Court. The learned Additional District Judge (II) (hereinafter referred to as the first Appellate Court), vide judgment and decree dated 7/10/2003, held that the suit paddy field is possessed by various tenants and that the plaintiff is one of them. The first Appellate Court further held that the respondent is also a co-tenant of the suit paddy field, presently the co-owner of the same, pursuant to his purchase by sale deed dated 10/6/1995 and the suit paddy field has not been partitioned by metes and bounds. The learned first Appellate Court held that the trial Judge did not consider the concept of tenancy in proper perspective and has wrongly given the status to the parties of being tenants of their respective portions by loosing site of the fact that the Civil Court has no jurisdiction to infer title of being the agricultural tenant on a person. The first Appellate Court, however, held that by virtue of the sale deed dated 10/6/1999, the defendant became the co-owner of his portion purchased by his mother and since there is no challenge to the sale deed , it cannot be accepted that the same is void, in view of section 13-A of the Agricultural Tenancy Act. The first Appellate Court, therefore, held that the plaintiff cannot stop the defendant from doing construction in his portion. The appeal, therefore, came to be dismissed.
7. The present Second Appeal has been filed by the plaintiff challenging the impugned judgment and decree of the trial Court as well as of the first Appellate Court and the same has been admitted on the following substantial questions of law:
(i) Whether, in view of the findings recorded by the first Appellate Court that the appellant was the joint tenant in possession of the suit paddy field, the respondent could be permitted to go ahead with the construction in the suit paddy field, without the permission/consent of the appellant?
(ii) Whether the sale deed dated 28/6/1999 entered into by the respondent with the so called landlord during the pendency of the suit, contrary to the provisions of section 13 of the Agricultural Tenancy Act, would invest any title in the respondent, in view of the provisions of section 13-A of the Agricultural Tenancy Act, which made the tenant deemed purchaser of the lands held by them w.e.f 20/4/1976?
8. Mr. S. D. Lotlikar, learned Senior Counsel appearing on behalf of the plaintiff argued that the first Appellate Court has rightly held that the plaintiff is the co-tenant in possession of the suit paddy field. He invited my attention to paragraph 3 of the plaint wherein it is pleaded that the plaintiff is the co-tenant in possession of the suit paddy field and, accordingly, his name has been recorded in the tenant's column as a co-tenant. He further pointed out that said co-tenancy has not been denied by the defendant in the written statement though it is the case of the defendant that the plaintiff and other co-tenants are in possession of separate portions of the suit paddy field. He also invited my attention to Form I and XIV of survey no. 307/10 which is at Exhibit P.W.1/B and which shows the name of the plaintiff; that of grand-father of the defendant; and of other cotenants, jointly in the tenant's column. He further pointed out that the survey plan of survey no. 307/10 at exhibit P.W.1/C shows the suit paddy field as one single unit. He, therefore, contended that no fault can be found with the finding of first Appellate Court that the plaintiff, defendant and others are co-tenants. Insofar as the sale deed dated 10/6/1999 is concerned, the learned Senior Counsel pointed out that the plaintiff had filed the suit on 21/4/1999, which means that the sale deed was executed after the institution of the suit. Relying upon section 52 of the Transfer of Property Act, 1882, he argued that this transaction is pendente lite and therefore, is not binding on the plaintiff. He argued that the finding of the first Appellate Court based on the said sale deed dated 10/6/1999 to the effect that since the defendants mother had purchased the portion vide sale deed Exhibit D.W.1/A, the plaintiff cannot stop the defendant from doing construction in his portion, is erroneous. He submitted that being a co-tenant and by virtue of fifth amendment, having become a co-owner of the suit paddy field, the plaintiff is the owner of every inch of the suit paddy field and other co-owners cannot construct anything in the said land without permission/consent of the plaintiff. He, therefore, urged that substantial question no.1 be answered in the affirmative.
9. Learned Senior Counsel, appearing on behalf of the plaintiff, further argued that the point whether the sale deed dated 10/6/1999 is contrary to the provisions of Section 13-A of the Agricultural Tenancy Act would not be of much relevance since even if the title had passed from one landlord to another, the tenancy of the plaintiff will not extinguish. He argued that as a co-owner, the plaintiff is entitled to permanent and mandatory injunction as prayed for in the suit.
10. Per contra, Mr. Shivan Dessai, learned counsel appearing for the defendant, argued that the defendant had specifically mentioned in the written statement that his mother purchased part of the suit paddy field which was in possession of the defendant by virtue of the sale deed dated 28/6/1999, which means that the plaintiff had knowledge about the same, but has not challenged the said sale deed. He further argued that section 13-A of the Agricultural Tenancy Act would not be applicable to the present case, since that provision comes into play when the landlord intends to sell the land cultivated by the tenant to a third party. He argued that in the present case, the land has been sold to a tenant and there is no bar for direct purchase of land by a tenant from the landlord. He, therefore, supported the finding of the learned first Appellate Court, which is to the effect that the since the defendant's mother had purchased the said land, the plaintiff cannot stop the defendant from doing construction in his land.
11. Insofar as the finding of the first Appellate Court to the effect that the plaintiff, defendant and others are cotenants, he argued that the same is an erroneous finding. Relying upon the judgment of this Court in âRamchandra Nathu Ghadage and Ors. Vs. Rajaram Nathu Ghadage (since deceased by his Lrs.) and othersâ [ 2007 (5) ALL MR 175], the learned counsel contended that in terms of section 100 (5) read with Order 42, Rule 1 and Order 43, Rule 33, this Court is empowered to frame and decide the questions of law not formulated earlier. He contended that it is an admitted position that separate portions of the suit paddy field have been enjoyed by each tenant and, therefore, this cannot be joint tenancy and at the most it can be tenancy-in-common. In this regard, he has relied upon âManuel Mendes, since deceased, through his legal representatives Vs. Smt. Shantidevi Ramchandra Halwai and othersâ [1995 (3) Bom.C.R. 723]. The learned counsel for the defendant, therefore, submitted that the defendants mother had purchased the portion which was always in possession of the defendant and not the portion in possession of the other tenants. He argued that there is no clarity in the judgment of the first Appellate Court as to on what basis it reversed the finding of the trial Court on tenancy-in-common. He contended that since the defendant is the independent owner of the said portion of the suit paddy field, the plaintiff has no right to stop him from doing any construction therein. He, therefore, urged that the present appeal is liable to be dismissed. He argued that there are concurrent findings of the Courts below and that the suit of the plaintiff has been dismissed by both the lower Courts and there is no scope for interference.
12. Perused the records and proceedings with the assistance of the learned counsel for the parties.
13. Insofar as the substantial question of law at serial no. (i) is concerned, since the first Appellate Court has held that the plaintiff was the joint tenant in possession of the suit paddy field, the finding that still the defendant could be permitted to go ahead with the construction in the suit paddy field, without the permission/consent of the plaintiff is erroneous. By virtue of the fifth amendment to the Agricultural Tenancy Act, all the tenants became deemed purchasers of the land cultivated by them, with effect from 20/4/76. There is no dispute that every co-owner will be entitled to claim every inch of the land jointly held by him along with other co-owners. Therefore, holding that one co-owner could go ahead with the construction in the land without permission of the other co-owners is certainly not correct.
14. In the present case, since the mother of the defendant has purchased the portion of the land which was in possession of the defendant by sale deed dated 10/6/1999, presented for registration on 28/6/2009, the first Appellate Court appears to have held that the defendant is no longer the co-tenant and, therefore, the plaintiff cannot stop him from doing construction in his portion.
15. Section 13-A of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 provides as under:
(1) When a landlord intends to sell any land cultivated by a tenant he shall give notice of his intention to the tenant in the prescribed manner and shall specify the price at which the sale is to take place and call upon him to state within 90 days of receipt of the notice whether he is willing to buy the land at the price specified.
(2) The tenant may within 90 days of receipt of the notice signify in the prescribed manner his readiness to purchase the land at the price specified in the notice and there upon a contract to purchase the land at the said price shall be deemed to have been concluded between the landlord and the tenant.
(3) If the tenant is willing to purchase the land but contends that the price specified in the notice is excessive he may apply to the Collector in the prescribed manner with in 30 days of receipt of notice under subsection (1) for determining the price whereupon the Collector shall determine the same in the prescribed manner in accordance with the principles laid down in the Land Acquisition Act, 1894 and the price so determined by the Collector shall be deemed to be the price specified in the notice under sub-section (1). But the tenant shall in such an event exercise the option conferred by sub-section (2) within 60 days the receipt of notice of the price fixed by the Collector.
(4) If the tenant fails within the period specified in sub-section (1) to signify his acceptance as provided in sub-section (2), the landlord shall be free to sell the land in question to any person at a price not lower than that set out in the notice or the price determined by the Collector under sub-section (3 ) as the case may be.
(5) Any sale by a landlord to a person other than a tenant without giving the notice required by sub-section (1), or before the expiry of the period of the said notice or at price lower than that set out in the notice or the price determined by the Collector under sub-section (3) as the case may be, shall be void.
(6) Notwithstanding anything in this section, a tenant who fails to avail himself of the offer of first purchase made under sub-section (1) shall not, by reason thereof, cease to be a tenant, but shall continue as a tenant under the new owner on the same terms and conditions as before.
(7) Government may, subject to due appropriation being made in this behalf, grant on such terms as may be prescribed, a loan to a tenant for the purchase of any land in respect of which a notice has been served upon him under sub-section (1)".]
16. As has been rightly contended by the learned counsel for the defendant, the provisions of section 13-A of the Agricultural Tenancy Act apply when the landlord intends to sell any land cultivated by a tenant to a third party. It does not apply when the landlord intends to sell the land to the tenant himself. It is not compulsory that a tenant should purchase the tenanted land only under the provisions of the Agricultural Tenancy Act. He can also purchase the land directly from the landlord. Therefore, section 13-A would not help the plaintiff, to claim that the sale is contrary to the provisions thereof. However, since it is proved that the plaintiff, defendant and others were co-tenants, and by virtue of Fifth Amendment, have become joint deemed purchasers, the question of one of the co-tenants purchasing specific portion of the suit paddy field, does not arise. Be that as it may, in terms of sub-section (6) of section 13-A of the Agricultural Tenancy Act, the plaintiff would not cease to be a tenant but shall continue as a tenant under the new owner on the same terms and conditions as before. Therefore, the provisions of Section 13-A will not affect the right of the plaintiff.
17. Section 52 of the Transfer of Property Act, 1882 (T. P. Act) provides as under:
â52. Transfer of property pending suit relating therein.- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.-- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]
18. The provision of Section 52 of the T. P. Act is based on the maxim âpendentelite nihil innoveturâ which means that pending a litigation nothing new should be introduced. The suit was filed by the plaintiff on 21/4/1999. The defendant and his mother, Smt. Radhabai inherited tenancy from Krishna Sawant, the late husband of Smt. Radhabai and father of defendant. The mother of the defendant purchased the portion of the suit paddy field by Sale deed dated 10/6/99, presented for registration on 28/6/99, which is during the pendency of the suit. The purchase by mother is on her behalf as also on behalf of the defendant. In paragraph 3 of the Written Statement, the defendant has pleaded that he has purchased the part of the land which he was in possession from the bhatkar Shri Vassudeo Deshprabhu by virtue of Sale Deed dated 28/6/99. No portion of the suit paddy field could have been dealt with by the defendant, during the pendency of the suit, so as to affect the right of the plaintiff. Therefore, the sale Deed dated 28/6/99 is not binding on the plaintiff and cannot affect his rights.
19. Be that as it may, since the first Appellate Court has held that the plaintiff was the joint tenant (co-tenant) of the suit paddy field, he had become joint owner (co-owner), with effect from 20/4/1976, by virtue of the fifth amendment to the Agricultural Tenancy Act. Therefore, the question of defendant or his mother purchasing some specific portion of the land from the landlord without the consent of the plaintiff does not arise.
20. In view of the discussion supra, the substantial question no. (i) gets answered in favour of the plaintiff. The substantial question no. (ii) has two parts: (i)-Execution of the sale deed during the pendency of the suit and (ii) Execution of the same contrary to the provisions of Section 13-A of the agricultural Tenancy Act. Since the sale deed dated 28/6/99 has been entered into by the respondent with the landlord during the pendency of the suit, it cannot affect the right of the plaintiff. Even if it is held that the said sale deed is not contrary to the provisions of Section 13-A of the Agricultural Tenancy Act, since no person other than a tenant is involved in the said sale transaction, then also the sale cannot become valid since it is proved that the said portion belonged to all the co-tenants who have become joint deemed purchasers of the same. The said sale deed cannot affect the tenancy rights of the plaintiff and the consequent rights acquired by virtue of Fifth amendment to the Agricultural tenancy Act. The substantial question no. (ii) is answered accordingly.
21. It is true that the defendant in the written statement has pleaded that the tenants of the suit paddy field are holding separate holding as the suit paddy field is subdivided amongst the tenants. It is true that the defendant has pleaded that he is in possession of a separate holding through his grandfather. It is also true that in the evidence it has come that all the co-tenants are separately cultivating the suit paddy field as per their respective shares and that the plaintiff is cultivating separate portion and this is from the time of ancestors. According to D.W.1 (defendant), there was oral partition. But in his cross-examination, D.W.1 has stated that he does not know about the oral partition and that the same took place at the time of his grand father. The grandfather of D.W.1 had expired when the defendant(D.W.1) was not even one year old, as stated by D.W.1. D.W.1 has admitted that the plaintiff is one of the co-tenants. Hence, the separate cultivation, by each cotenant would not make the tenants to be tenants-in-common. In the survey records in Form No. I and XIV (Exhibit P.W.1/B), the tenants are shown as joint tenants. The survey plan at Exhibit P.W.1/C reveals that the suit paddy field is one unit. There are no separate sub-divisions of the suit paddy field recorded separately in the name of each tenant. Therefore, the finding of the first Appellate Court to the effect that the plaintiff, the defendant and others are joint tenants is not erroneous.
22. In the case of âDr. Nariman Aspandiar Iraniâ(supra), relied upon by the learned counsel appearing for the defendant, it has been held that if the partners of the Firm hold leasehold interest as tenants-in-common, there is unity of title and each is the owner of every inch of the premises. In the case of âManuel Mendes, since deceased, through Lrs.â (supra), relied upon by the learned counsel appearing for the defendant, there was a joint lease of a shop in the name of two respondents. It is observed that the presumption in this country always points out to the fact that a tenancy executed by more than one tenant is a common tenancy rather than a joint one and that common tenancy postulates that each tenant should have only a share in the tenancy. In both the above cases, the tenancy was in respect of building and under the Rent Act. In the present case, we are concerned with agricultural tenancy of cultivable land under the Agricultural tenancy Act. The above citations cannot be applied to the present case.
23. The question of formulating any additional substantial question of law, does not arise.
24. Admittedly, the defendant was doing construction with laterite stones and wanted to make a permanent construction in the suit paddy field. The plaintiff had relied upon the case of âJose Caetano Vaz Vs Julia Leocadia Lucretia Fernandesâ (A.I.R. 1969 Goa, Daman and Diu, 90), before the trial Court as well as first Appellate Court. In this case, the learned Additional Judicial commissioner has held that a co-owner in possession of the joint property has no right to change the user of that property without the consent of other co-owners and if he does so by starting digging operations with a view to erect a house on joint property and aggrieved co-owner comes to the Court with due promptness for restraining him from raising a building, the Court can very legitimately decree prohibitory injunction. It has been further held that if in the mean time, any structure has been raised, a decree for mandatory injunction can also be granted. Since one co-owner cannot do any construction in the joint property without the consent of other co-owners, the suit filed by the plaintiff ought to have been decreed. Therefore, the plaintiff is bound to succeed in the present appeal.
25. In the result, the appeal is allowed.
(a) The impugned judgment and order dated 31/12/2001 passed by the trial Court in Regular Civil Suit No. 23/1999 and the impugned judgment and decree dated 7/10/2003 passed by the first Appellate Court in Regular Civil Appeal No. 7/2002 are both quashed and set aside.
(b) The Regular Civil Suit no. 23/1999 is decreed, in terms of prayer clauses (a) and (b) of paragraph 24 of the plaint, with costs.
26. The appeal is disposed of accordingly.