By this appeal, the appellants take exception to the order dated 13th November, 2001, passed in Civil Misc. Application 115/97/B in Special Civil Suit No.65/97/B by the Addl. Civil Judge, Senior Division, at Vasco da Goa, dismissing the application for interim relief filed by the original plaintiff.
2. The appellants are legal representatives of the original plaintiff who expired during the pendency of the appeal before this Court and the respondents are the original defendants in the above suit. The parties shall, hereinafter, be referred to as per their status before the Trial Court.
3. The plaintiff filed the above suit for declaration that the sale deeds dated 21.5.1996 and 19.9.1996 executed by defendant No.1 in favour of defendant No.3 be treated as null and void and not binding on the plaintiff since they have no right in the property known as âAdolem e Balcondicho Volloâ, situated within the Village Panchayat of Cuelim-Cansualim, Mormugao Taluka, bearing matriz No. 102, and survey Nos. 61/1 to 121, 62/1, 62/2, 63/2, 65/3 and 65/1A of Village Cuelim. It appears that defendant No.1 sold part of the said property bearing Survey No. 63/2(part), 65/3 (part) and 65/1A and survey No.67/0 by two separate sale deeds, duly registered in the office of Sub-Registrar of Mormugao. The sale deeds were entered into after seeking permission of the Mamlatdar under Section 18K of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. The suit was for declaration and injunction and in the alternative for recovery of possession of the suit property. Temporary injunction was sought by the plaintiff, restraining the defendants from interfering with or encumbering, alienating or changing the nature of the suit property. However, during the course of arguments, the plaintiff did not press the relief of injunction in so far as interference with the suit property is concerned.
4. Briefly, the case of the plaintiff is that defendant No.3 in collusion with defendants No.1 and 2 obtained fraudulent orders, which are not binding on the plaintiff and for the first time in July, 1996, defendant No.3 excavated mud from the properties sold and thereby disturbed the possession of the plaintiff. According to the plaintiff, the Mamlatdar had no jurisdiction to pass orders under the Tenancy Act and hence, the order dated 30.11.1988 is null and void. It is further the case of the plaintiff that the Tenancy Act had come into force when the defendant No.1 was minor and hence, he could not have claimed tenancy. It is further the case of the plaintiff that during the life time of his mother, he filed two suits as attorney of his mother bearing Regular Civil Suit No.20/78 and Regular Civil Suit No.16/79, and temporary injunction was granted against defendant No.2, which was in operation till disposal of the suit on 8.12.1987. Plaintiff's mother was appointed as cabeca da casal in Inventory Proceedings No.2948/2950, instituted on the death of Joaquim Xavier Maria de Cunha.
5. The suit, as well as the application for interim relief, were contested by the defendants by filing written statements and replies to the application for temporary injunction. On behalf of the defendants following contentions were raised. The orders passed in favour of defendant No.1 were not fraudulent, nor were obtained by collusion between the defendants No.1 and 2, nor that they were not binding on the plaintiff. The application for temporary injunction was hit by laches. Part of the property permitted to be sold by the Mamlatdar continues to be in possession and enjoyment of defendant No.3 since the date of the purchase and prior to that it was in lawful possession of defendant No.1 who was tenant thereof. It was specifically the case of defendant No.1 that the suit properties were leased by the ancestors of defendant No.2 to the ancestors of defendant No.1 and the entire plantation was done by defendant No.1 and his predecessors and hence, the suit properties are in their possession for last many years. Rent was paid by the mother and uncle of defendant No.1 to defendant No.2 and his predecessor. His name appears in the survey records as tenant of the suit properties.
6. The plaintiff and the defendants filed affidavits in support of the application for temporary injunction and replies filed by respective defendants and both the parties produced several documents in support of their respective claims.
7. The Trial Court, upon appreciation of the materials placed on record, and after considering the arguments of the parties, dismissed the application, primarily on the following grounds:
(I) In respect of the suit properties, name of defendant No.1 appears as tenant. Defendant No.2 is the owner and at no point of time, the mother of the plaintiff nor the plaintiff himself tried to get their names registered in the survey records.
(II) In the two suits filed in the years 1978 and 1979 by the mother of the plaintiff, through the plaintiff as attorney, it was not disclosed that the gift deed was executed in the year 1975 by mother of the plaintiff in his favour and, therefore, serious doubt was created about the genuineness of the gift deed.
(III) The contention of the plaintiff that the Mamlatdar had no jurisdiction to pass any order under the Agricultural Tenancy Act, and that it was only the Joint Mamlatdar who could pass such orders, is unsustainable in law inasmuch as the Mamlatdar has jurisdiction under the provisions of the Act to pass such orders.
(IV) The contention of the plaintiff that the orders passed by the Mamlatdar on account of fraud and collusion between the defendants and, as such, it was not necessary to seek specific declaration, was untenable in law and in the absence of any relief of declaration regarding the said order in the suit, the plaintiff was not entitled to discretionary relief of injunction;
(V) Moreover, initially, the plaintiff claimed to be in possession and only after filing of the written statements by the defendants, the plaintiff amended the plaint by alleging the acts of fraud and collusion by the defendants.
(VI) The contention of the plaintiff that the order passed by the Mamlatdar is not binding on him and hence he was not made party is untenable in law, inasmuch as his name did not figure in survey records in respect of the suit properties and that there was no any attempt on the part of the plaintiff to get his name inserted in the survey records.
(VII) The plaintiff was very much aware regarding the orders of the Mamlatdar dated 30.11.1988 and 10.9.1992 in respect of which he had applied for certified copies in the year 1992, but had not challenged the same and, as such, prima facie the suit filed was barred by limitation even for the prayer for alternate relief.
(VIII) In the absence of any challenge to the orders of the Mamlatdar dated 30.11.1988 and 10.9.1992 in the suit, the plaintiff was not entitled to challenge the sale deeds dated 21.5.1996 and 19.9.1996, executed by defendant No.1 in favour of defendant No.3.
(IX) The plaintiff had approached the Court with unclean hands inasmuch as initially in the suit, the plaintiff did not mention about the suits filed by him as attorney of his mother in the years 1978 and 1979, which ultimately abated;
(X) Moreover, the case set up in the plaint is contrary to the pleadings in the said suits inasmuch as in the said suits the mother of the plaintiff claimed to be the owner of the suit properties; whereas in the present suit, the plaintiff claimed title to the suit properties by virtue of the Gift Deed in respect of the suit properties executed in the year 1975 by his mother.
(XI) The contention of the plaintiff that he came to know about the orders passed in the years 1988 and 1992 was, prima facie, not probable.
(XII) Even if it is held that the plaintiff is co-sharer of the properties, at the most, he is entitled to his share in the price from defendant No.2 who had received it from defendant No.1 while selling the tenanted properties.
(XIII) The factors of balance of convenience and irreparable loss were in favour of the defendants and irreparable injury would be caused to the defendants if the interim relief as sought by the plaintiff was granted.
The application for temporary injunction came to be dismissed primarily on the above grounds.
8. Mr. Diniz, learned Counsel appearing for the appellants submitted that the suit properties belonged to the plaintiff's parents and uncle and the District Court, in its order dated 27.6.2003 in the case between the plaintiff and defendant No.1 has accepted the title of the plaintiff-appellants to the suit property and the said judgment would operate as res judicata. Mr. Diniz further submitted that the declaration of tenancy obtained by defendant No.1 is void because of the fraud and collusion between defendants No.1 and 2. In the suit filed by the plaintiff against defendant No.2 and others, bearing Civil Suit No.20/78, a temporary injunction was granted by Order dated 13/10/1978 restraining them from entering into the suit properties. The said suit was declared abated in view of demise of the plaintiff's mother on 9.12.1987. The very defendant No.2 who had himself applied for deletion of name of the purported tenants, suddenly turned around and admitted that defendant No.1 was tenant in respect of a part of the suit properties. The plaintiff was fraudulently not made a party in the proceedings before the Mamlatdar, though defendant No.1 knew that the plaintiff was a co-owner of the suit properties. Learned Counsel further submitted that the orders having been passed without notice to the plaintiff, are null and void and as such, need not be separately challenged. The claim made by defendant No.1 is patently unsustainable in law inasmuch as his own claim was that his mother and uncle were tenants and as such, he could not claim independent tenancy. In addition, the Mamlatdar had no jurisdiction to declare defendant No.1 as tenant when mother and uncle were expressly stated to be the tenants by the applicant before him and at the relevant time both of them were living. The defendant No.1 was aged 32 years as on 29.9.1992 as per his own statement and as such, defendant No.1 was a minor when the Vth Amendment came into force in the year 1976 and as such, could not claim tenancy in respect of part of the suit properties.
9. Mr. Diniz further submitted that since the Mamlatdar who had passed orders in favour of defendant No.1 lacked inherent jurisdiction and as such the orders passed were without jurisdiction and non-est and although an attempt was made by the Government by issuing an ordinance on 17.3.2000 to validate such orders, the ordinance lapsed after six months since no legislation was enacted thereafter.
10. Mr. Diniz further submitted that since the orders were obtained by fraud and collusion, it was not necessary for the plaintiff to challenge the same in view of Section 44 of the Evidence Act. Mr. Diniz further submitted that the tenanted lands could not have been permitted to be sold, except in the contingencies mentioned in clauses (a) to (h) of Rule 6 of the Rules framed under the Agricultural Tenancy Act. Mr. Diniz further submitted that the plaintiff has made out a prima facie case in his favour and the balance of convenience is also in his favour. Learned Counsel further submitted that once prima facie case is made out, status quo has to be maintained, more particularly in so far as alienation of the suit property is concerned and Section 52 of the Transfer of Property Act is not an adequate relief. Mr. Diniz further submitted that defendant No.3 cannot be allowed to change the status quo by alienating the suit properties, thereby leading to multiplicity of proceedings and no prejudice would be caused if defendant No.3 is restrained from transferring the properties purchased by him.
11. Mr. Diniz further submitted that defendant No.1 having sold the tenanted agricultural properties, after seeking permission from the Mamlatdar (which is not valid in law), even subsequent transfer by defendant No.3 would require permission from the Mamlatdar inasmuch as the tenanted land would continue to be the land that was purchased by the tenant under the Act. Mr. Diniz further submitted that the defendants cannot be permitted to change the nature of the suit properties pending the suit, more particularly having regard to Section 2 of the Goa Land Use (Regulation) Act, 1991. In view of the provisions of the Agricultural Tenancy Act and the Goa Land Use (Regulation) Act, 1991, defendant No.3 cannot change the nature of the suit properties and irreparable loss and injury would cause to the plaintiff, in case defendant No.3 is allowed to develop the properties by changing its nature. Mr. Diniz further submitted that the findings given by the Trial Court are patently perverse and contrary to law and, as such, limited interim relief sought by the plaintiff deserves to be granted. In support of his submissions Mr. Diniz relied upon the follows decision:
(a) KiranSingh and others vs. Chaman Paswan and others, AIR 1954 SC 340;
(b) AmritBhikaji Kale vs. Kashinath Janardhan Trade, 1983 AIR (SC) 643;
(c) State of Maharashtra vs. Pravin Jethalal Kamdar, 2000 AIR (SC) 1099;
(d) Gram Panchayat of Village Naulakha vs. Ujagar Singh, 2000 AIR (SC) 3272;
(e) State of Andhra Pradesh vs. T. Suryachandra Rao, 2005 AIR (SC) 3110;
(f) PralhadJaganath Jawale and ors., vs. Sau. Sitabai Chander Nikam and ors., 2011 (6) Bom C.R. 619.
12. Ms. A. Agni, learned Counsel appearing on behalf of defendant no.1-respondent No.1, at the outset, submitted that the plaintiff has not challenged the order passed in favour of defendant No.1, declaring him to be the tenant in respect of survey Nos. 61/1 to 121, 62/1, 62/2, 63/2, 65/3 and 65/1A of Village Cuelim. Moreover, the plaintiff has also not challenged the orders dated 10.9.1992 and 28/9/92, passed by the Mamlatdar permitting defendant No.1 to purchase the suit properties. Further, the certificate of purchase dated 23.2.1993, issued under Section 18-H of the Act in respect of the properties bearing some of survey numbers have not been challenged, nor the order of the Mamlatdar dated 7.9.1993 passed under Section 18-K has been challenged, although the original plaintiff had knowledge about the said orders much prior to 1996.
13. Learned Counsel further submitted that the plaintiff has also not mentioned as to when he came to know about the orders passed in favour of defendant No.1. Ms. Agni further submitted that defendant No.1 has disputed that the original plaintiff was co-owner of the suit properties and, on the contrary, there is a statement that the entire property belonged in equal shares to Joaquim Antonio and Joaquim Xavier. Moreover, the plaintiff has admitted in Civil Suit No.28/78 that the mother and uncle of defendant No.1 by names Antonette Monteiro and Joaquim D'Souza were in possession and enjoyment of the suit properties and the entire plantation was done by Joaquim, Antonette and defendant No.1.
14. She submitted that at no point of time defendant No.1 has accepted the title of the original plaintiff to the suit properties and had even challenged the Award passed by the District Court in Land Acquisition Case No.4/89 by filing Appeal No.248/03. Mrs. Agni further submitted that even if an order is void, a party who is affected, is required to get it so declared by competent forum and it is not permissible to ignore the same on the ground that it is void. Mrs. Agni further submitted that the orders declaring defendant No.1 as tenant, passed in the years 1988-89 were well within the knowledge of the original plaintiff as is evident from the proceedings in Land Acquisition Case No.4/89.
15. Ms. Agni further submitted that the finding recorded by the Trial Court that the plaintiff has suppressed material facts by not disclosing about the suits filed in 1978 and 1979 is well founded and having regard to the fact that in the same suit, the mother claimed to be the owner and in the present suit the original plaintiff claimed to be the owner of the suit properties by virtue of the Gift Deed executed in the year 1975, it is evident that the original plaintiff did not approach the Court with clean hands and on that ground alone, the application for interim relief which is discretionary, has been rightly dismissed by the Trial Court.
16. Ms. Agni further submitted that the allegation that the orders passed were obtained by fraud and collusion has not been substantiated by the plaintiff by placing before the Trial Court relevant material and the reliance placed by the appellants on the Award passed in Land Acquisition Case No.4/89 is unsustainable in law inasmuch as defendant No.1 has challenged the said Award by filing First Appeal No.248/03 which is pending in this Court. Mrs. Agni further submitted that in view of Section 58 of the Act, the Civil Court cannot deal with the issue of tenancy in respect of an agricultural property and any order passed by any authority under the Act can be challenged only before a forum available under the Act and not before the Civil Court. Mrs. Agni further submitted that once certificate of purchase is issued under Section 18-H of the Act and if the same is not challenged, the same is binding not only on the landlord, but on all persons claiming interest in the land.
17. Ms. Agni further submitted that the fact that the appellants have challenged the orders passed under Section 18 by filing revision application is of no avail to the appellants inasmuch as the order dated 30.11.1988 has not been challenged by the appellants. Ms. Agni further submitted that the impugned order in favour of the defendants is in operation for almost a period of 15 years and, as such, no case is made out by the appellants for reversing the said order which has been passed in exercise of discretion by the Trial Court.
18. In support of her submissions, Ms. Agni relied upon the order dated 28th October, 1996 passed by the Additional Sessions Judge, in Land Acquisition Case No.4/89 and the Judgments of Apex Court in the cases of BajranglalShivchandrai Ruia vs. Shashikant N. Ruia and others, (2004) 5 SCC 272, and EdukantiKistamma (dead) through LRs. and others, vs. S. Venkatareddy (dead) through LRs. and others, 2010 (1) SCC 756.
19. Mr. Agha, learned Counsel for respondent No.2 supported the impugned order and submitted that the findings recorded by the learned Trial Judge are based on materials on record and, as such, no interference is warranted with the impugned order.
20. Ms. Razaq, learned Counsel for defendant No.3, at the outset, adopted the submissions made by Ms. Agni on behalf of defendant No.1. Ms. Razaq further submitted that the scope for interference, with an order passed by the Trial Court, in an appeal from order to either grant or refuse an injunction, is very limited, as has been held by the Apex Court in the case of Wander Limited and another vs. Antox India P. Ltd., 1990 (Supplement) SCC 727.
21. Learned Counsel further submitted that there is no perversity in the findings recorded by learned Trial Judge and, as such, no case has been made out by the appellants to set aside the order passed in the year 2001. Learned Counsel further submitted that the original plaintiff had suppressed material facts and on this count alone the appellants are not entitled to any relief. Learned Counsel further submitted that the original plaintiff was fully aware about the claim of tenancy raised by defendant No.1 over the suit properties, but no steps to prosecute the suits were initiated in the years 1978 and 1979 or to institute afresh proceedings in respect of said claims. Learned Counsel further submitted that the original plaintiff had played a fraud on the Court and on this count alone the appellants are not entitled to the relief of temporary injunction. Learned Counsel further submitted that the claim of the original plaintiff was on the basis of the Gift Deed dated 24.11.1975, and not as a co-owner of the suit properties.
22. Learned Counsel further submitted that the Judgment dated 27.6.2003, passed by the District Judge in Land Acquisition Case No.4/89 is clearly unsustainable in law, and an appeal against the said Judgment is also pending before this Court. Learned Counsel further submitted that the original plaintiff has not challenged order dated 30.11.1988 declaring defendant No.1 as tenant of the suit property and, as such, the appellants are not entitled to challenge the sale deeds executed by defendant No.1 in favour of defendant No.3.
23. Learned Counsel further submitted that in the absence of any challenge to the order dated 30.11.1988, the appellants are not entitled to any relief in the suit and in any case, in view of Section 58 of the Agricultural Tenancy Act, the appellants are not entitled to challenge in the Civil Court, orders passed under the Agricultural Tenancy Act. Learned Counsel further submitted that the Mamlatdar has rightly passed order dated 30.11.1988 since defendant No.2 was landlord of defendant No.1 and, as such, question of joining original plaintiff in the said proceedings did not arise. Learned Counsel further submitted that it is only the Mamlatdar under the Act who has exclusive jurisdiction to declare a person to be a tenant or deemed to be a tenant under the Act.
24. Learned Counsel further submitted that although initially Mamlatdar could decide whether the person is a tenant or deemed tenant by virtue of Section 7 of Act No.4 of 1991, with effect from 21.11.1990, the Mamatdar was conferred jurisdiction to entertain whether the person was a tenant also. Learned Counsel further submitted that the application filed by defendant No.1, seeking declaration of tenancy, was maintainable in law and the Mamlatdar was fully entitled to decide the issue of tenancy.
25. Learned Counsel further submitted that in any event, the objection taken by the plaintiff that Mamlatdar had no jurisdiction to declare defendant No.1 as tenant is a technical objection and, it cannot be said that the Mamlatdar was lacking inherent jurisdiction to declare defendant No.1 as a tenant. Learned Counsel further submitted that the original plaintiff had challenged orders dated 16.5.1996 and 20.5.1996, passed by the Mamlatdar under Sections 18C and 18K respectively, which pertained to Survey No.65/1A. Learned Counsel further submitted that in the absence of any challenge to the primary orders passed in favour of defendant No.1-respondent No.1, the appellants are not entitled to challenge the consequential orders.
26. Learned Counsel further submitted that the original plaintiff no where alleged that the defendants were intending to alienate the suit properties, nor there is any material on record, even on the date that the defendants-respondents have done any acts during last 15 years, which would show that the respondents are intending to change the nature of the suit properties. Learned Counsel further submitted that serious prejudice would be caused to defendant No.3-respondent No.3 if interim relief as sought by the appellants is granted at this stage when the trial of the suit has already started. In support of her submissions, Ms. Razaq relied upon the following Judgments:
(1) S.P. Chengal Varaya Naidu (dead) by LRs. vs. Jagannath (Dead) by LRs., and others, (1994) 1 SCC 1;
(2) M/s. Seemax Construction (P) Ltd., vs. State Bank of India and another, AIR 1992 Delhi 197;
(3) LakshimibaiNarayan Patil of Volvoi Ponda and ors., vs. Union of India and ors., AIR 1979 Goa, Daman and Diu 21
(4) Union Territory of Goa, Daman and Diu and another vs. Lakshimibai Narayan Patil, (1990) 4 SCC 102;
(5) Thimmaiahvs. Shabira and ors., AIR 2008 SC 1275;
(6) EdukantiKistamma (Dead) through LRs. and ors. vs. S. Venkatareddy (Dead) through LRs. and ors., (2010) 1 SCC 756;
(7) KalyanMadgaocar vs. Dattaram Shiva Harmalkar (since deceased) by LRs., 2010 (4) Mh. L.J. 111; and
(8) PralhadJaganath Jawale and ors. vs. Sitabai Chander Nikam and ors., 2011 (6) Bom. C.R. 619;
27. I have carefully considered the rival submissions, and perused the record and the judgments relied upon.
28. The main question which arises for consideration in the present appeal is whether the impugned order passed by the Trial Court is perverse and as such, the appellants are entitled to the interim relief as sought by them.
29. The appeal was preferred by the appellants in the year 2002. For some reason or the other, the matter was not disposed of for a decade. Admittedly, there is no dispute that evidence on behalf of the plaintiff has begun. It would, therefore, be just and proper to expedite the hearing of the suit itself, which was filed by the original plaintiff in the year 1997.
30. Since, disposal of the suit has been expedited, I do not deem it appropriate to go into several disputed questions of law and facts raised on behalf of the rival parties. However, there is one aspect which is required to be taken note of. It is the case of the defendants themselves that defendant No.1 is a tenant in respect of the property bearing Survey Nos. 61/1, 62/1, 63/2, and 65/3, and pursuant to the declaration given by the Mamlatdar that he is a tenant of defendant No.2/respondent No.2 in respect of the suit properties, defendant No.1/respondent No.1, by Deed of Conveyance of Land dated 21st May, 1996 sold the properties bearing Survey Nos. 63/2(part), 65/3(part), 65/1-A and 67/0 of Village Cuelim, admeasuring 1,83,000 sq. metres and by Deed of Conveyance of Land dated 19th September, 1996 sold the property bearing Survey No. 65/3 (part), of Village Cuelim, admeasuring 30,887 sq. metres to defendant No.3/respondent No.3, after seeking permission from the Mamlatdar under the provisions of the Agricultural Tenancy Act, 1964. In view of this admitted position, what emerges is that according to the defendants themselves the above referred properties are tenanted agricultural properties. This being the position, the provisions of the Agricultural Tenancy Act and the Goa Land Use (Regulation) Act, 1991 are clearly applicable to the said properties.
31. In terms of Chapter IIA of the Act, a tenant is entitled to purchase land as tenant, by depositing the purchase price either in lump-sum or in installments. It is the case of defendant No.1 that he being tenant of the property bearing Survey nos. 61/1, 62/1, 63/2 and 65/3 of Village Cuelim, had purchased the said property from defendant No.2 who was his landlord. It is an admitted position that defendant No.3 had purchased from defendant No.1 properties bearing Survey Nos. 63/2(part), 65/3(part), 65/1-A and 67/0 of Village Cuelim, admeasuring 1,83,000 sq. metres by Deed of Conveyance of Land dated 21st May, 1996 and by Deed of Conveyance of Land dated 19th September, 1996 the property bearing Survey No. 65/3 (part), of Village Cuelim, admeasuring 30,887 sq. metres, pursuant to the sanction granted by the Mamlatdar in terms of Section 18K of the Act and Rule 6 of the Goa, Daman and Diu Agricultural Tenancy (Special Rights and Privileges of Tenants) Rules, 1977. I do not deem it necessary at this stage to go into the question as to whether the sale by defendant No.1 to defendant No.3 is legal or whether in the absence of any challenge to the original orders passed by the Mamlatdar in favour of defendant No.1 the plaintiff is not entitled to challenge the sale deeds in favour of defendant No.3. However, the fact remains that in terms of Section 2 of the Goa Land Use (Regulation) Act, 1991, the land which is vested in a tenant under the provisions of the Agricultural Tenancy Act, 1964 shall be used, or allowed to be used for the purpose of agriculture only. In terms of Section 3, the provisions of the Act do not apply to acquisition of any land vested in a tenant under the Act, by the State for a public purpose under the provisions of the Land Acquisition Act, 1894. From a conjoint reading of the provisions of the Agricultural Tenancy Act, and the Goa Land Use (Regulation) Act what emerges is that tenanted agricultural land can be used only for the purpose of agriculture by any person, but the Government can use it for any other purpose after acquisition under the Land Acquisition Act, 1894.
32. Therefore, it is evident that the above referred two Acts impose restrictions on the use of tenanted agricultural land for any purpose, other than agriculture. If a tenant of agricultural land is not entitled to use the said land for any purpose other than agriculture, it is difficult to hold that the transferee of such property is entitled to use the said property for any other purpose other than agriculture. Therefore, though the Trial Court has held that the conduct of the plaintiff does not entitle to any discretionary relief by way of an injunction, yet, in view of the admitted factual and legal position, defendant No.3 which has purchased the tenanted agricultural land is not entitled to change the nature of the property purchased by him. Moreover, the plaintiff cannot be said to be total stranger qua the land sold to the defendant No.3.
33. The Judicial Commissioner's Court struck down Fifth Amendment to the Agricultural Tenancy Act, by Judgment rendered in the case of LakshimibaiNarayan Patil of Volvoi Ponda and ors., (Supra). The Apex Court by Judgment dated 23rd July, 1990, rendered in the case of Union Territory of Goa, Daman and Diu and another vs. Lakshimibai Narayan Patil, (supra), upheld the validity of the Fifth Amendment to the Agricultural Tenancy Act, inter alia, on the ground that the Act is intended to serve the purpose of agrarian reform. Therefore, it is evident that the Fifth Amendment to the Agricultural Tenancy Act and the Goa Land Use (Regulation) Act are enacted with a view to ensure that the tenanted agricultural land is not diverted for any use, other than agriculture. This being the position, permitting defendant No.3 to change the nature of the property from agriculture to non-agriculture, would amount to permitting defendant No.3 to act contrary to the provisions of the Agricultural Tenancy Act, as well as the Goa Land Use (Regulation) Act. Therefore, in my considered opinion, it would be just and proper to restrain the defendant No.3 from changing the nature of the properties purchased by it.
34. From perusal of the application for interim relief filed by the plaintiff and the materials placed in support of the application, the original grievance of the plaintiff appears to be that defendant No.3 was trying to change the nature of the suit property by excavating stones from the suit property. Except for the averment against defendant No.3, there is absolutely no averment against the defendants in support of the prayer for interim relief. Therefore, in the absence of any averment in the application, I am of the considered opinion that the plaintiff is entitled to an injunction only as against defendant No.3 to the extent of changing the nature of the properties purchased by it.
35. In so far as the relief sought by the plaintiff against the defendants-respondents from transferring the suit properties is concerned, in the absence of any foundation in the application, I am not inclined to grant such a relief at this stage, more particularly when the suit is expedited. No doubt in the event of any transfer of the suit property or any portion thereof by the defendants, doctrine of lispendens under Section 52 of the Transfer of Property Act would be attracted.
36. Needless to mention that the findings given and the observations made herein above are limited for the purpose of deciding this appeal and the learned Trial Judge is expected to decide the suit on the basis of the evidence led by the parties, in accordance with law.
37. In the result, therefore, the appeal is partly allowed. Defendant No.3 shall not change the nature of the land in respect of suit properties bearing Survey nos 63/2(part), 65/3(part), 65/1-A and 67/0 of Village Cuelim, till disposal of the suit. The trial Court to dispose of the suit expeditiously and in any case, on or before 31st July, 2013.
38. The appeal stands disposed of in the aforesaid terms, with no order as to costs.