Sadanand Vithal Naik And Others v. Rashmi Dinesh Naik And Others

1. Heard. Rule. By consent heard forthwith.

2. This is a defendants' writ petition and is directed against order dated 21-7-2009 of the learned Civil Judge, Junior Division at Panaji in R.C.S No. 50/2006.C by which the defendants' application dated 10-6-2008 has been dismissed. By the said application the defendants had prayed for framing of two issues namely of mundkarship and tenancy and referring them to the Mamlatdar, for his decision.

3. Some facts in brief are required to be stated to dispose of this writ petition.

4. The suit property admeasuring about 5725 sq.mts initially belonged to Ganesh and Vimlabai Naik, which is surveyed under survey No. 146/3. The said Vimlabai had constructed a farm house admeasuring about 110 sq.mts having two compartments in the year 1977 and also installed a water pump for the purpose of watering the plantation. According to the Plaintiffs, the Defendant No. 1 in the year 1978 was an employee of Bhagwan Navelkar of Sta. Cruz and the said Bhagwan Navelkar was a close friend and relation of said Ganesh Naik and while in the employment of the said Navelkar, defendant No. 1 was evicted from his house at Aradi, Sta. Cruz, and the said Navelkar approached the said Ganesh Naik to allow the defendant No. 1 to occupy part of the house temporarily, till he got alternate accommodation, and, accordingly, the defendant No. 1 was allowed to occupy a portion of the house on payment of monthly compensation of Rs. 50/-, for allowing to use the said portion of the farm house and at that time the defendant along with his mother entered the said portion in the month of May, 1978 and started paying monthly compensation of Rs. 50/- to the said Ganesh Naik, which he paid up to December, 1984 till the death of said Ganesh Naik and thereafter stopped paying the same.

5. The Plaintiffs further stated that it was the western portion of the farm house which was given to defendant No. 1 and the eastern portion was being used by the said Ganesh and Vimlabai as their summer resort and also to stay therein whenever they did plantation in the said property. The Plaintiffs further stated that they used the farm house up to the year 1979 and thereafter some plastic goods and materials were stored in the eastern portion of the said farm house of M/s Kaushik Traders, a business firm of Shri Dinesh Naik and Shri Umesh Naik, sons of Smt. Vimlabai and Ganesh Naik, as all of a sudden they had to vacate the godown used by M/s Kaushik Traders. It was further the case of the plaintiffs that one Mohan Bhat, an employee of the firm M/s Casa Naik who was residing with Shri Ganesh Naik and Smt. Vimlabai got married in May 1980 and thereafter the said Mohan Bhat, the employee of M/s Casa Naik in which his two sons Shri Dinesh and Shri Umesh were also the partners was accommodated in the said eastern portion and the plastic material of M/s Kaushik Traders were stored in the rented premises of Bhagwan Navelkar. The Plaintiffs further stated that the said Mohan Bhat got married in the year 1980 and the said Ganesh Naik accommodated him in the portion of the suit house which was earlier being used by Ganesh Naik as summer resort and for doing plantation and the said Ganesh Naik converted the verandas of the suit house into rooms on both eastern and western sides, as accommodation given to Mohan Bhat was insufficient and that defendant No. 1 also requested Ganesh Naik to convert the verandah of the portion he is occupying into rooms. It was also the case of the plaintiffs that the defendant No. 1 in or about May 2003 extended the suit house, the western portion, covering an area of 78.07 sq. mtrs. illegally and unauthorizedly without knowledge and the consent of the said Dinesh Naik and plaintiff No. 1. The Plaintiffs therefore filed the suit for eviction of the defendants, for licence fees, restricting their claim, of licence fees only for a period of 3 years and for demolition of the encroachment made by the defendants.

6. The defendants contested the suit and pleaded that the property surveyed under survey No. 146/3 has been in possession and occupancy of late Rukmini being the mother of defendant No. 1 and Sadanand prior to 1970. The defendants stated that the suit property was agricultural land mainly comprising of orchard variety of fruits trees and was in their possession and is cultivated by them viz. The children of the said Rukmini and Vithal as agricultural tenants thereof. According to the defendants the suit property was leased to the said Rukmini by the said Ganesh and Vimalabai some where a little before 1970. According to the defendants the suit house is a mundkarial house of the defendants and the same was allowed to be occupied by the said Vimlabai and Ganesh Naik a little prior to 1970. According to the defendants the said Rukmini V. Naik mother of defendant Nos. 1 and 2 came to reside in the suit house a little prior to 1970 and since then her children namely defendant Nos. 1 and 2 have been residing as her family members in the suit house with fixed habitation since that day continuously. As regards the said Mohan Bhat occupying the eastern portion of the suit house, the defendants admitted his occupancy stating that the said Mohan Bhat resided in the room attached to the eastern side of the suit house.

7. Arguments have been heard. The pleadings of the respective parties have been perused with the assistance of the learned counsel appearing on behalf of the parties.

8. Shri Menezes the learned Counsel on behalf of the petitioners/defendants has placed reliance on the case of Mr. Porbuko Uma Mandrekar v. Mr. Wencesslay Alex D'Silva, CDJ, 2005 (3) Mh.L.J 586 : 2005 BHC 079, wherein it was stated as follows:

“39. Admittedly, the defendants having taken the plea of tenancy an issue was framed whether the Civil Court had jurisdiction to decided the same. At no stage the plaintiff chose to get the said issue deleted in case it did not arise from the pleadings. In para 3, the defendants had specifically pleaded that the Court had no jurisdiction as they were tenants in respect of the suit property an had consequently become deemed owners of the same. In para 8, the defendants had referred to the lease agreement granted in their favour by the said Manuel Jose Francisco and had further stated that the said lease agreement dated 28-11-1951 was not terminated and that they were in possession and enjoyment of the said property to the exclusion of the plaintiff and his wife who were owners of the same. In the light of the pleadings of the defendants and the said lease agreement, the said plea taken by them could not have been said to be vague or frivolous and could have been prima facie accepted and in fact was accepted by the learned Trial Court. However, what the learned Trial Court did was to give a finding on the said plea of the defendants which was subject matter of issue No. 3. Once the said plea was taken and it could not be said that prima facie the same was frivolous, the same had to be necessarily decided by the Mamlatdar who has been given exclusive jurisdiction to decided the same. Whether the defendants were in fact in possession of he suit property or whether the defendants cultivated the land personally and as such were in possession of the same or whether the land was used for agricultural purpose were all matters which were required to be decided by the Mamlatdar, the same being incidents or attributes of he tenancy claimed by the defendants and could not have been decided by the Civil Court”.

9. On the other hand Shri Ramani learned Counsel on behalf of the Respondents/Plaintiffs has submitted that the pleadings of the defendants are vague and therefore the facts stated by the plaintiffs will be deemed to be admitted. learned Counsel has placed reliance on the case of Thomas Antony v. Varkey Varkey., (2000) 1 SCC 35 : AIR 2000 SC 1.

10. It is well settled that when an issue of mundkarship or tenancy are raised in a suit they are required to be decided by the Mamlatdar in terms of section 32 (2) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 and section 58 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 respectively. Likewise, in the case decided by the Apex Court in Thomas Antony (supra), an issue whether a person is a tenant or a kudi kidappukaran, is required to be decided by the Lands Tribunal in terms of section 125(3) of Kerala Land Reforms Act, 1963. However, it is stated by the Apex Court that the Civil Court has the power to consider whether such a plea has been raised without legal foundation or with the only intention to gain time by protracting the litigation. If the Civil Court is of opinion that there is not even a remote possibility of the plea being upheld, the Court can proceed to dispose of the suit without resorting to the circumlocuted route via the Land Tribunal. The Apex Court further stated that the statutory provisions, envisage a case where a bona fide and legally sustainable plea of tenancy is taken by the party, that the question shall be referred to the Land Tribunal. The Apex Court has also stated that an unreasonable plea would be raised with the idea to procrastinate or prolong the litigation. Civil Court cannot afford to aid such sinister tactics. The Apex Court has also held that while making reference to the Tribunal mandatory the legislature cannot be said to have intended that even a patently frivolous, mala fide and illegal plea of tenancy taken by a party merely to delay the proceeding and to remain in possession of the property is also to be referred to the Tribunal. The law laid down in Thomas Anthony (supra) needs to be followed with reference to the Mundkar Act as well as Tenancy Act, in force in this State.

11. Reverting back to the facts of the case, and as regards the issue of tenancy, it may be stated that the defendants have taken the plea that the suit property was leased to the said Rukmini by the said Ganesh and Vimlabai some where a little before 1970. Tenancy is a relationship between a landlord and a tenant and there cannot be any such relationship in the absence of payment of rent. In terms of section 2(13) of the Tenancy Act, 1964, “lease” means a transfer of a right to enjoy land, made orally or in writing, for a specified, or unspecified period, and in consideration of rent. section 2(20) defines “rent” to mean a consideration in money or kind or both paid or payable by a tenant on account of the use or occupation of the land held by him but shall not include the rendering of any personal service or labour.

12. The defendants have not at all whispered a word as to what was the lease rent which was payable on account of the alleged lease by Ganesh and Vimlabai in favour of Rukmini. The defendants have also not stated as to when the rent was paid for the fist time and if so what was the amount or for that matter what was the amount paid last time and why it was stopped. There could not have been any lease unless there was rent payable by the person who claims to be a tenant to his/her landlord. In the absence of such necessary pleadings, the plea taken by the defendants that they were tenants has got to be considered as vague. Courts are not bound and cannot be expected to raise or frame issues on pleas which are vague.

13. In this context, I may refer to a decision of this Court in the case of Pandu Dhondi Yerudkar v. Ananda Krishna Patil, 1974 Mh.L.J 548 : AIR 1975 Bom. 52 wherein this Court has stated with reference to Order 14 of the Code of Civil Procedure that an issue can only arise when a material proposition of fact or law is affirmed by one party and denied by the other. When a vague plea is made by the defendant contending that he-is a tenant of the land, the Court should hesitate to frame such an issue on such a vague plea, unless the defendant is able to give particulars showing that the time when the tenancy was created, the person by whom it was created and the terms on which it was created. If in spite of such particulars being asked for, the defendant is unable to furnish the same, the Court should not raise an issue on a vague plea that he, the defendant is a tenant of any particular piece of land. Reference could also be made to another decision in case of Anandrao Bandu Jadhav v. Bibijan, 1982 Mh.L.J 748 : AIR 1983 Bom. 32, which is to the same effect. In Porbuko Mandrekar (supra) this Court has reiterated the principle that the Civil Court is under no obligation to frame and remit an issue mechanically without judicial satisfaction of its necessity and justification. Pleas that are frivolous and dilatory will not be referred.

14. In the circumstances, therefore, the learned trial Court could not be faulted in not raising the issue of tenancy and referring it to the Mamlatdar.

15. As regards he issue of mundkarship, the conclusion arrived at by the learned trial Court could not be faulted, but the reasoning does not appear to be correct. section 2(p) of the mundkar act defines “mundkar” to mean 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 dos not include —

(i) a person paying rent to the bhatkar for the occupation of the house;

(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;

(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

(iv) a person residing in the whole 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 purpose of maintaining it in habitable condition.

16. In other words the defendants have taken a plea that they are the mundkars of the entire house existing in the property of the plaintiffs surveyed under Survey No. 146/3. Shri Ramani, learned counsel on behalf of the plaintiffs has submitted that the defendants have not at all explained, though they have admitted, that the eastern portion is being occupied by the said Mohan Bhat as to how the said Mohan Bhat came to reside there, whether with the permission of the plaintiffs or the defendants. Learned Counsel further submits that it is not the case of the defendants that they were given the entire house and that they, the defendants, in turn allowed the said Mohan Bhat to reside in a room on the eastern part of the suit house. To that Shri Menezes, learned counsel appearing on behalf of the defendants submits that the defendants can restrict their claim of mundkarship to the western portion of the house only. I am not prepared to accept the said statement. It was for the defendants to have taken a proper plea and if necessary, by amending the written statement, that they were mundkars of the western portion only. The defendants' plea of mundkarship to the entire house therefore appears to be dishonest and mala fide.

17. The plaintiffs have clearly stated that the farm house itself was constructed in the year 1977. Similarly, the plaintiffs stated that the defendants entered the suit house in May 1988. The defendants have not specifically denied the said statements as required in terms of Order 8, Rule 3, of Civil Procedure Code and, therefore the said statements that the suit house was built in the year 1977 and the defendants entered it in May, 1988 are deemed to be admitted. The defendants without specifically denying the said statements have vaguely stated that they were allowed to reside in the suit house little prior to 1970. If the suit house was built in the year 1977, no plea of mundkarship would have been available to the defendants after coming into force of the Mundkar Act on 12-3-1976. The Mundkar Act was meant to be a measure of protection and not creation of new rights. If the plaintiffs succeed in their claim that they constructed the farm house in the year 1977, then the plea of the defendants is bound to fail. That apart, the plea taken by the defendants in respect of the entire house appears to be totally dishonest and mala fide with a view to prolong the litigation. On facts of the case, the pleas taken by the defendants have to be considered as vague, frivolous and dilatory.

18. In view of the above, I find that there is no merit in this writ petition and consequently the same is hereby dismissed.

Petition dismissed.