| SooperKanoon Citation | sooperkanoon.com/1184714 |
| Court | Mumbai Goa High Court |
| Decided On | Apr-18-2016 |
| Case Number | Writ Petition No. 583 of 2015 |
| Judge | S.B. Shukre |
| Appellant | Ramkrishna P. Kandolkar and Others |
| Respondent | Peter Paul D'Souza (since deceased) through Legal Representatives and Others |
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Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]goa, daman and diu mundkars (protection from eviction) act, 1975 section 2(p) indian penal code, 1860 section 295 eviction entitlement to claim administrative tribunal dismissed application of petitioner and held that order of collector holding that petitioners are not mundkars under section 2(p) of the act, is legal and proper court held section 2(p) of the act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house it is seen from tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of petitioners out of purview of section 2(p) of the act, without applying his mind to evidence tribunal ought to have recorded his finding in regarding filing of.....Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";if (trim($desc['Judgement']['casenote'])) {echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]1. rule. rule made returnable forthwith. heard finally by consent of parties. 2. by this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the additional president, administrative tribunal, goa, in mundkar revision application no. 2 of 1996. 3. the petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. the respondents had sought vacant possession of house no. 43/9, survey no.159/9 of village candolim (hereinafter referred to as the suit house) vide civil suit no. 107 of 1970 instituted before the court of civil judge, senior division, mapusa, goa. according to the petitioners,.....Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) Smt. Bhaguirati Narayan Borkar and anr. vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 and (ii) Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64, the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 10include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 11include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 12include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(i) a person paying rent to the bhatkar for the occupation of the house;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 13include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 14include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 15include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 16include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Explanation.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 17include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 18include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 19include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
14. In the case of Smt. Bhaguirati Narayan Borkar and anr., supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 20include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 21include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 22include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 23include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
18. In the circumstances, following order is passed :
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 24include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 25include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 26include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p style="text-align: justify;"><span class="juddtlimg">1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p style="text-align: justify;"> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p style="text-align: justify;"> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p style="text-align: justify;"> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p style="text-align: justify;"> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p style="text-align: justify;"> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p style="text-align: justify;"> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p style="text-align: justify;"> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p style="text-align: justify;"> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p style="text-align: justify;"> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p style="text-align: justify;"> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p style="text-align: justify;"> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p style="text-align: justify;"> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p style="text-align: justify;"> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p style="text-align: justify;"> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p style="text-align: justify;"> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p style="text-align: justify;"> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p style="text-align: justify;"> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p style="text-align: justify;"> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p style="text-align: justify;"> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p style="text-align: justify;"> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p style="text-align: justify;"> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p style="text-align: justify;"> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p style="text-align: justify;"> 18. In the circumstances, following order is passed :</p><p style="text-align: justify;"> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p style="text-align: justify;"> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p style="text-align: justify;"> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'ramkrishna-p-kandolkar-vs-deceased-representatives', 'args' => array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) ) $title_for_layout = 'Ramkrishna P Kandolkar and Others Vs Peter Paul D Souza Since Deceased Through Legal Representatives and Others - Citation 1184714 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1184714', 'acts' => null, 'appealno' => 'Writ Petition No. 583 of 2015 ', 'appellant' => 'Ramkrishna P. Kandolkar and Others ', 'authreffered' => null, 'casename' => 'Ramkrishna P. Kandolkar and Others Vs. Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'casenote' => 'Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 Section 2(p) Indian Penal Code, 1860 Section 295 Eviction Entitlement to claim Administrative Tribunal dismissed application of Petitioner and held that order of Collector holding that Petitioners are not mundkars under Section 2(p) of the Act, is legal and proper Court held Section 2(p) of the Act provides that mundkar is person who, with consent of bhatkar, lawfully resides with fixed habitation in dwelling house It is seen from Tribunal order that mere pendency of suit filed for eviction has been considered as sufficient to take case of Petitioners out of purview of Section 2(p) of the Act, without applying his mind to evidence Tribunal ought to have recorded his finding in regarding filing of eviction suit which was pending Tribunal has not done so and order held as perverse Order of Tribunal is set aside and matter is remanded back to Tribunal Petition allowed. (Paras 12, 15, 18) Cases Referred: Smt. Bhaguirati Narayan Borkar and anr.vs. Smt. Ema Lima Cota Furtado and ors. reported in 1992(2) Bom.C.R. 39 Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. reported in 1989(2) Goa Law Times 64 Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar reported in 1991(2) Goa L.T. 331. Comparative Citation: 2016 (5) MAH.L.J 154, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Mumbai Goa', 'court_type' => 'HC', 'decidedon' => '2016-04-18', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'S.B. Shukre', 'judgement' => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span></p><p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.</p><p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.</p><p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.</p><p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.</p><p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.</p><p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.</p><p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.</p><p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.</p><p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.</p><p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:</p><p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -</p><p> (i) a person paying rent to the bhatkar for the occupation of the house;</p><p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;</p><p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and</p><p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.</p><p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. </p><p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.</p><p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.</p><p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.</p><p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.</p><p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.</p><p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.</p><p> 18. In the circumstances, following order is passed :</p><p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.</p><p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.</p><p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Peter Paul D'Souza (since deceased) through Legal Representatives and Others', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'ramkrishna-p-kandolkar-vs-deceased-representatives' $args = array( (int) 0 => '1184714', (int) 1 => 'ramkrishna-p-kandolkar-vs-deceased-representatives' ) $url = 'https://sooperkanoon.com/case/amp/1184714/ramkrishna-p-kandolkar-vs-deceased-representatives' $ctype = ' High Court' $content = array( (int) 0 => '<p><span>1. Rule. Rule made returnable forthwith. Heard finally by consent of parties.</span>', (int) 1 => '<p> 2. By this petition, the petitioners are challenging the legality and correctness of the order dated 14.01.2015 passed by the Additional President, Administrative Tribunal, Goa, in Mundkar Revision Application No. 2 of 1996.', (int) 2 => '<p> 3. The petitioners are the legal heirs of original defendant nos.1 and 2 in the suit filed for eviction against the original defendants 1 and 2 and the respondents are the legal heirs of deceased original plaintiff. The respondents had sought vacant possession of House No. 43/9, Survey No.159/9 of village Candolim (hereinafter referred to as the suit house) vide Civil Suit No. 107 of 1970 instituted before the Court of Civil Judge, Senior Division, Mapusa, Goa. According to the petitioners, this suit was filed by the respondents out of grudge that respondents nurtured against the petitioners on account of the petitioners having lodged a criminal complaint under Section 295 of Indian Penal Code against the respondents, in which case the respondents came to be convicted and punished under Section 295 of Indian Penal Code.', (int) 3 => '<p> 4. During the pendency of the aforesaid first suit, the respondents filed second suit before Civil Judge, Senior Division, Mapusa, Goa, vide Civil Suit No. 37 of 1976, which was also for eviction of the petitioners. In this suit, the petitioners disputed the claim of the respondents contending that they were the mundkars residing in the suit house much prior to the year 1975 and they had a right to repair or reconstruct the suit house under The Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter referred to as the Mundkars Act). During the pendency of this suit, the respondents withdrew the first suit on 07.4.1977 and the withdrawal was unconditional. Since the plea of mundkarship was raised by the petitioners, the Civil Court referred the suit to the learned Mamlatdar under Section 13 of the Mundkars Act for a decision of mundkarial issue. Upon holding an inquiry, as contemplated under Section 13, the learned Mamlatdar by his judgment and order dated 20.3.1992 declared the petitioners as mundkars.', (int) 4 => '<p> 5. The respondents challenged the said judgment and order of learned Mamlatdar by filing an appeal under Section 24 of the Mundkars Act before the Collector, North Goa, Panaji. The learned Collector found that after vacating of the suit house in the year 1975 by the petitioners, the suit house got collapsed and no steps having been taken for restoration of the dwelling house within one year, as contemplated under Section 4 of the said Act, the petitioners could not be declared as mundkars. He also held that the evidence showed that the petitioners were inducted in the suit house as care takers and, therefore, could not be held to be mundkars as defined under Section 2 (p) of the said Act. Accordingly, by the judgment and order dated 13.10.1995 the learned Collector allowed the appeal and declared that the petitioners were not the mundkars of the suit house.', (int) 5 => '<p> 6. The said order of the learned Collector was challenged by the petitioners by filing a revision application before the Administrative Tribunal, Goa. By the judgment and order passed on 02.6.1997 the learned President allowed the revision and maintained the order of the Mamlatdar.', (int) 6 => '<p> 7. The order of the Administrative Tribunal dated 02.6.1997 was challenged by the respondents by filing a Writ Petition No. 313 of 1997. This Court by the order passed on 19.8.1998 held that the order of Mamlatdar passed under Section 13 is an appealable order in terms of Section 24 of the Mundkars Act and, therefore, by quashing and setting aside the order passed on 02.6.1997, this Court remanded the matter to the Administrative Tribunal for consideration of the revision application afresh in accordance with law. After remand of the case to the Administrative Tribunal, Goa, the revision application was considered afresh and by the order dated 14.1.2015 the Administrative Tribunal held that the judgment and order of the Collector dated 13.10.1995 holding that the petitioners are not the mundkars, is legal and proper and accordingly dismissed the revision application. The Administrative Tribunal found that since the suit filed in the year 1970 for eviction of the petitioners was pending during the period of one year prior to the appointed date, which is of 12.3.1976 under the Mundkars Act, there was no consent of the bhatkar to the petitioners to reside in the suit house by virtue of explanation to Section 2(p) of the Mundkars Act. It is this order which is under challenge in the present writ petition.', (int) 7 => '<p> 8. It is the contention of Shri Nitin Sardesai, learned senior advocate, that the reasoning adopted by the Administrative Tribunal is perverse as the consent by deeming fiction is excluded only when an eviction suit is filed within one year prior to the appointed date on the ground that the person is a trespasser. He submits that in this case the first suit of 1970, though filed for eviction, was on the ground that the petitioners had filed a complaint against the original respondent under Section 295 of Indian Penal Code. He submits that this suit was not on a plea that the petitioners were trespassers. He also submits that even the second suit was not maintainable as it was filed during the pendency of the first suit and was also for eviction of the petitioners, the same relief as was sought in the first suit. He also submits that the first suit was not withdrawn after seeking leave of the Court as required under Order 23 Rule 1 read with Order 2 Rule 2 of Code of Civil Procedure, which rendered the second suit as not maintainable. Learned senior counsel further submits that there is no evidence available on record showing that the petitioners were inducted in the suit house as care-takers thereof. He further submits that non-existence of the suit house cannot be a ground for eviction of a mundkar. He submits that the petitioners were not allowed to reconstruct the suit house by an injunction order passed by the Civil Court and, therefore, this could not be taken as a valid ground for evicting a mundkar.', (int) 8 => '<p> 9. Shri Ramani, learned counsel for the respondents, submits that the order of the learned Collector dated 13.10.1995 takes into consideration all the material aspects of the case and, therefore, it has been rightly upheld by the learned President of the Administrative Tribunal. He submits that it is an admitted position that the suit house collapsed in the year 1975 and, therefore, it was necessary for the petitioners to have filed an application for restoration of possession of the suit house under Section 4(2) of the Mundkars Act within one year from the appointed date and as it was not done by the petitioners, now the petitioners cannot claim to be mundkars lawfully residing with fixed habitation in the suit house with the consent of bhatkar. He submits that when the suit house itself is not in existence and no application having been filed by the petitioners seeking declaration of right to reconstruct under Section 7A read with Section 8A of the Mundkars Act, the issue is no longer open for debate and adjudication. He submits that the suit house being not in existence and no necessary declarations having been sought by the petitioners, now there would be no question of the petitioners being declared as mundkars lawfully residing with the consent of bhatkar in the suit house. He also submits that in the evidence of respondent/petitioner no. 5 Rajaram Pushottam Candolkar, there is a clear cut admission appearing on record that he was admitted in the suit house as a care-taker and not mundkar of the suit house. He further submits that there is also other evidence available on record showing that the petitioners were residing in the suit house as care-takers thereof. On these grounds, he urges that the impugned order needs no interference.', (int) 9 => '<p> 10. On perusal of the impugned order, it can be seen that the learned Additional President of the Administrative Tribunal has maintained the judgment and order of the Collector dated 13.10.1995 only on the ground that the petitioners, though residing in the suit house, were not entitled to lay a claim of mundkarship as their possession itself was not lawful in view of explanation to Section 2(p) of the Mundkars Act. The learned Additional President held that as the respondents had initiated proceedings for eviction of the petitioners from the suit house and these proceedings were pending during the period of one year prior to the appointed date, as per the ratio of the cases in (i) <strong>Smt. Bhaguirati Narayan Borkar and anr. </strong>vs. <strong>Smt. Ema Lima Cota Furtado and ors. </strong>reported in <strong>1992(2) Bom.C.R. 39 </strong>and (ii) <strong>Mrs. Ana Maria Augusta D'Mello and anr. v. Smt. Ladu Shetkar and ors. </strong>reported in <strong>1989(2) Goa Law Times 64, </strong>the petitioners could not be held to be lawfully residing in the suit house. The learned Additional President, therefore, considered other questions which were relating to right of the petitioners to reconstruct the suit house, claim of the respondents that the petitioners were inducted in the suit house as care-takers and the claim of the petitioners that they were never evicted from the suit house under authority of law and, therefore, were still having the de jure possession of the suit house in spite of its walls having collapsed in the interragnum, as redundant and did not adjudicate upon them.', (int) 10 => '<p> 11. The finding recorded by the Administrative Tribunal that the petitioners could not be deemed to be lawfully residing with the consent of bhatkar in a dwelling house because of pendency of the civil suit instituted for their eviction during the period of one year prior to the appointed date in view of explanation to Section 2(p) of the Mundkars Act, I must say, is completely erroneous. It has been recorded by the learned Additional President without properly understanding the meaning and purport of explanation to Section 2(p) of the Mundkars Act. It would be useful to consider this explanation in the light of the other provisions contained in the Section. Section 2(p) along with the explanation reads as under:', (int) 11 => '<p> 2 (p) - mundkar means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include -', (int) 12 => '<p> (i) a person paying rent to the bhatkar for the occupation of the house;', (int) 13 => '<p> (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house-compound or other portion of his employer's residence;', (int) 14 => '<p> (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and', (int) 15 => '<p> (iv) a person residing int eh whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition.', (int) 16 => '<p> <strong>Explanation</strong>.- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. ', (int) 17 => '<p> 12. It is clear from the language used in Section 2(p) that a mundkar is a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar, lawfully resides with a fixed habitation in a dwelling house. It is not necessary for forging of relationship of mundkar and bhatkar that a mundkar must render some service to the bhatkar. It is also clear that some categories of persons have been excluded from being termed as mundkars. These categories are of the persons paying rent to a bhatkar, a domestic servant or chowkidar who is being paid wages, a person employed in a mill, factory, mine, workshop or commercial establishment and residing in the house belonging to the owner or person in charge of such mill, factory etc. in connection with his employment and a person who is residing in a dwelling house as a caretaker thereof or for the purposes of maintaining the dwelling house in a habitable condition. The explanation brings in the concept of lawful residence with the consent of the bhatkar by deeming fiction. A person is deemed to be lawfully residing with the consent of bhatkar in a dwelling house if the person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceeding during the said period of one year to evict such person from the dwelling house on the ground that such person is a trespasser. Such deeming fiction also comes into play if the bhatkar who has initiated such eviction proceeding during the period of one year prior to the appointed date, fails in obtaining a decree for eviction of that person. Thus, the conditions necessary for presuming lawful residence and consent of bhatkar in a dwelling house by deeming fiction of law are that the eviction proceeding must be instituted during the period of one year prior to the appointed date and that it must be based on the ground that the person is a trespasser. If the decree for eviction is sought on any ground other than the ground of the person being a trespasser, the said fiction of law would not come into play and there would be no deemed lawful residence of mundkar and consent of bhatkar.', (int) 18 => '<p> 13. Having seen the nature and the scope of Section 2(p) of the Mundkars Act, now it would be necessary to consider as to whether or not the learned Administrative Tribunal was right in holding that the pendency of the civil suit filed for eviction during the period of one year prior to the appointed date itself was sufficient to push the petitioners out of the definition of Mundkar under Section 2(p) of the Mundkars Act. We have seen that such suit must be filed not only for eviction but also filed on the ground that the person is a trespasser. The filing of the suit for eviction on the ground of the person being a trespasser is sine qua non for legal fiction of lawful residence of mundkar and consent of the bhatkar under explanation to Section 2(p) of the Mundkars Act to apply.', (int) 19 => '<p> 14. In the case of <strong>Smt. Bhaguirati Narayan Borkar and anr.</strong>, supra, it has been held that institution of eviction suit within the stipulated period is necessary for taking the claim of mundkarship out of the purview of Section 2(p) of the Mundkars Act. In paragraph 18, the Division Bench also observed that such proceedings should be initiated on the ground that the person is a trespasser. These observations would have a binding effect as they have been made while considering the scope and nature of explanation to Section 2(p) of the Mundkars Act earlier and they only lend support to the view taken by me in this regard.', (int) 20 => '<p> 15. In the instant case, it is the case of the petitioners that the first suit filed in the year 1970 and which was pending during the period of one year prior to the appointed date, i.e. 12.3.1976, was filed not on the ground that the petitioners were the trespassers but on the ground that the petitioners had filed a criminal complaint against the respondents under Section 295 of Indian Penal Code. That suit, in other words, was a sort of revenge mechanics engineered to teach a lesson to the petitioners for their offending act of filing a criminal complaint. There is no evidence brought on record by the respondents showing that this contention is wrong. The learned Additional President has also not considered this aspect of the case any where. It is seen from the impugned order that mere pendency of the suit filed for eviction has been considered as sufficient by him to take the case of the petitioners out of purview of Section 2(p) of the Mundkars Act, without applying his mind to the evidence available on record. The learned Additional President of the Tribunal has not at all considered as to whether or not the essential condition of the explanation to Section 2(p) that the eviction proceeding must be initiated upon the ground that the person is a trespasser, has been fulfilled in this case. The learned Additional President ought to have recorded his finding one way or the other regarding filing of the eviction suit which was pending in the year 1975 on the ground of the petitioners being trespassers. The learned Additional President has not done so and, therefore, the impugned order would have to be held as perverse and not sustainable in law.', (int) 21 => '<p> 16. The revision application also raised several other challenges, such as the petitioners were wrongly held to be residing in the suit house as care-takers thereof, were erroneously found as not having any right in respect of the suit house as it was not in existence and were incorrectly faulted for not having filed any application under Section 4(2) for restoration of the suit house within the period stipulated therein. The petitioners also contended that they had a right to reconstruct the dwelling house in view of Section 7A. All these contentions of the petitioners were not dealt with in any manner by the learned Additional President reasoning that the recording of any finding upon them was redundant. To my mind, consideration of these contentions on their own merits was necessary as it would have enabled either of the parties to know their standing on facts and law and take appropriate measures as available in law for ameliorating their situation. In other words, recording of findings on all these contentions on merits was necessary for doing proper justice between the parties. As that has not been done by the learned Additional President, the impugned order cannot be sustained even for this reason and now the case would have to be sent back for a decision afresh.', (int) 22 => '<p> 17. Once the remand of the matter is found essential, it would not be necessary for me to consider the contentions regarding bar of second suit in view of provisions of Order 23 Rule 1 and Order 2 Rule 2 of the Code of Civil Procedure and the petitioners were not the care-takers. For the same reason, I also do not think it necessary to consider the contention that right of reconstruction given to a mundkar is available only when capacity of mundkar has been established and till the time such capacity is established, the landlord would be entitled to an injunction restraining the reconstruction as held in the case of <strong>Vicente Cabral v. Smt. Sunandabai Dayanand Bandodkar </strong>reported in <strong>1991(2) Goa L.T. 331. </strong>All these contentions would have to be kept open and are kept accordingly for being considered properly by the Court below.', (int) 23 => '<p> 18. In the circumstances, following order is passed :', (int) 24 => '<p> The impugned judgment and order are hereby quashed and set aside. The matter is remanded back to the Administrative Tribunal to decide the revision application afresh in accordance with law. Rule is made absolute in the above terms. There shall be no order as to costs.', (int) 25 => '<p> Parties to appear before the Administrative Tribunal on 02.5.2016 at 10-30 a.m.', (int) 26 => '<p> Learned President of the Tribunal is requested to dispose of the revision application within six months from the date of appearance of the parties.', (int) 27 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 28 $i = (int) 27include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109