Pundalik Gangadhar Sinai Sanvordekar (since deceased) through his legal representatives and Others Vs. Shankar Gopal Bhandari (since deceased) through his legal representatives and Others - Court Judgment

Oral Judgment:

1. Rule. Rule, made returnable forthwith. The learned Counsel for the contesting respondent nos.1(a) to 1(i) waives service. Heard finally, by consent of the parties.

2. By this petition, the petitioners are challenging the judgment and order dated 13/04/2016 passed by the learned Ad hoc District Judge, Margao, by which, the judgment and order dated 30/12/2010 passed by the learned Mamlatdar of Sanguem in Case No. MAM/TNC/DECL/8/99, has been confirmed. By the impugned judgment, the respondents have been declared as tenants of the suit property known as Titapemol Bearing Survey no.18/1, situated at Corranguinim village of Sanguem Taluka.

3. The brief facts are that now deceased Shankar Gopal Bhandari filed an application under the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (the Act, for short) against now deceased Pundalik Sanvordekar and Dr. Upendra Sanvordekar, claiming a declaration about he being a tenant of the property bearing Survey No.18/1 at Corranguinim Village, Taluka Sanguem. The case made out in the application was that the father of the original applicant was inducted as a tenant by the original respondent no.1 Pundalik Sanvordekar about 50 years back. The rent was paid in kind depending upon the yield. It was contended that prior to 20 years of filing of the application, the rent was being paid in cash at the rate of Rs.200/- per year. It was contended that the original opponent no.1 Pundalik Sanvordekar never issued any receipts towards the payment of rent. Indisputably, an area admeasuring 2.81 hectares from western side of the suit property was sold in favour of the original applicant vide Sale Deed dated 04/11/1977 for a sum of Rs.4,000/-. It was contended that after excluding the area sold, the remaining area of about 45 Hectares, continued in possession of the original applicant as a tenant. It was contended that the land is exclusively a Cashew Grove and the original applicant was extracting Cashew Juice and had obtained Excise Licence in his own name. Some time prior to filing of the application, a separate licence was obtained in the name of of Satchit Bhandari, who is the son of the original applicant Shankar Bhandari.

4. The original respondents filed reply and opposed the application, denying the claim of tenancy. All the adverse allegations were denied. It was denied that the area admeasuring 45 hectares (after excluding the area sold) was in possession and enjoyment of the original applicant as a tenant.

5. The parties produced oral and documentary evidence. The learned Mamlatdar, after considering the same, by order dated 30/12/2010, has allowed the application. This was challenged by the present respondents (being the successors of the original opponents) before the District Court in Tenancy Appeal No.7/2015. The learned District Judge has concurred with the order passed by the learned Mamlatdar, which brings the petitioners to this Court.

6. I have heard Shri Lotlikar, the learned Counsel for the petitioners and Shri Pangam, the learned Counsel for the respondent nos.1(a) to 1(i). With the assistance of the learned Counsel for the parties, I have gone through the impugned judgment and the record produced.

7. It is submitted on behalf of the petitioners that the learned District Judge in the capacity as a First Appellate Court and the final fact finding Court, has not dealt with the issues and the evidence independently. The learned Counsel points out that under Order XLI, Rule 31 of the Code of Civil Procedure (CPC), the Appellate Court ought to appreciate the entire material independently and come to its own findings and the First Appellate Court cannot simply affirm the findings recorded by the learned Trial Court. The learned Counsel has placed reliance on the decision of this Court in the case of Smt. Thereza Cordo Vs. Vyankatesh Lotlikar and others; 2007(1) Goa L. R. 146, in support of the submission. The learned Counsel points out that the judgment of the First Appellate Court does not show that the issues and the oral and documentary evidence on record, have been independently considered, which renders the impugned judgment infirm. The learned Counsel has next submitted that the fact that the part of the property (on the western side) was sold to the original applicant under the Sale Deed dated 04/11/1977, would itself negate any claim of tenancy. The contention is that had the original applicant been a tenant, there was no occasion for him to enter into private purchase in respect of the portion of the land from the western side.

8. On the contrary, the learned Counsel for the respondents nos.1(a) to 1(i) has supported the impugned order. It is submitted that the name of the original applicant is recorded in the Form No.I and XIV as a tenant, which has a presumptive value under Section 105 of the Goa Land Revenue Code. The learned Counsel submits that the DC case filed by the original respondents for correction of the said entry was withdrawn. He submits that there is enough oral and documentary evidence on record to clearly establish that the original applicant Shankar was in possession and enjoyment of the property as a tenant. He, therefore, submits that the concurrent findings recorded by the Courts below, do not call for any interference.

9. I have carefully considered the rival circumstances and the submissions made and I do not find that any case for interference is made out.

10. Indisputably, the name of the original applicant is recorded as a tenant in Form No.I and XIV of the suit property Survey No.18/1. It further appears that there was a DC case being DC No.2/Corranguinim initiated. It has come in the evidence of the tenant that the witnesses Anant Gopal Bhandari and Rama Raghoba Naik, who were examined in that case, had admitted that the Cashew trees in the suit property are cultivated by Shankar Bhandari and thereafter, the said case was withdrawn. It is further undisputed that the matter was not carried any further. There are also Excise Licences on record for various years i.e. from 1987 to 1992 and copies of the applications made to the Excise Inspector from the year 1995, 1996, 1997, 1999 and 2001. It would show that it was the applicant Shankar Bhandari, who was extracting the Cashew Juice from out of the cashew yield from the said field. There is also evidence of the applicant's witness Kanta Naik about the original opponent no.1 Pundalik @ Jivaji Sanvordekar being paid the rent of Rs.200 per year. The said witness has stated that the amount of rent was paid to the Landlord in his presence on two occasions. The Courts below have found that this part of the evidence has not been dislodged in the course of the cross-examination. Merely because the original tenant has gone for a private purchase of portion of the land, would not be sufficient to negate the claim of the tenancy in respect of the remaining land. No prohibition under the Tenancy Act for a tenant going for a private purchase of the land or part of it, was brought to my notice.

11. I have carefully gone through the judgment and order passed by the Appellate Court and I find that the Appellate Court, after considering the documentary and oral evidence, has confirmed the findings of the learned Mamlatdar. It is not possible to accept that there is non-compliance of the provisions of Order XLI, Rule 31 of CPC. In that view of the matter, the judgment in the case of Smt. Thereza Cordo (supra), cannot come to the aid of the petitioners.

12. The petition is without any merit and is, accordingly, dismissed, with no order as to costs.

13. At this stage, the learned Counsel for the petitioners prays for extension of interim relief for a period of six weeks. The learned Counsel for the respondent nos.1(a) to 1(i) opposes the same.

The interim relief, already operating, shall continue for a period of six weeks from today.