1998(3) ALL MR 76
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
R.M.S. KHANDEPARKAR, J.
Smt. Palmira Valadares Vs. Shri Inacio Mariano Dias And Ors.
Writ Petition No.143 of 1995
24th October, 1997
Petitioner Counsel: Shri V. P. THALI
Respondent Counsel: Smt. A. A. AGNI
Goa, Daman and Diu Agricultural Tenancy Act (1964), S.8A - Jurisdiction of Mamlatdar - Relief under S.8A - Can be granted only in favour of tenant and against Landlord - Relief claimed by tenant against person also claiming to be tenant - Mamlatdar cannot adjudicate matter - Proper forum is Civil Court.
Civil P.C. (1908), S.9. (Para 9)
JUDGMENT :- The point which is sought to be raised for determination in the present petition is whether in a suit for permanent injunction filed by a person claiming to be a tenant in respect of a property against another person claiming to be the tenant in respect of the same property would lie before the Mamlatdar under Agricultural Tenancy Act or not.
2. It is the case of the petitioner that he is a tenant in possession of a property bearing survey no.280/1 and 288/1 of the village of Carambolim and that the property belongs to the Comunidade of Carambolim. The petitioner further claims to have been declared as the tenant by the Mamlatdar under Section 7 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter called as 'the said Act') by his Order dated 15-7-1992. The respondents nos.1 to 11 filed a civil suit being Regular Civil Suit No.167/92 for injunction against the petitioner in respect of the same property while setting up a claim of tenancy over the said property. It was the contention of the respondents that the Order dated 15-7-1992 of the Mamlatdar declaring the petitioner as the tenant was obtained by the petitioner in collusion with the Comunidade of Carambolim. Along with the suit the respondent also filed application for injunction. The suit was contested by the petitioner inter alia submitting that the Civil Court had no jurisdiction to entertain the dispute and the jurisdiction vests with the Mamlatdar. The Civil Court vide its Order dated 13-11-1992 refused the relief of temporary injunction on the ground that it had no jurisdiction to entertain the suit which order in an appeal against the same was confirmed by the Additional District Judge by his Order dated 19-8-1994. In the Civil Revision Application No.138/94 filed by the respondent against the said order of the Additional District Judge, the learned Single Judge of this Court was pleased to allow the same while holding that the jurisdiction to entertain the same for perpetual injunction between two persons claiming to be tenants of the suit property vests with the civil court and under Section 8-A of the said Act only the disputes between the tenant and the landlord are contemplated and as such the disputes between two persons claiming to be tenants are outside the purview of Section 8-A of the said Act.
3. It is the case of the petitioner that the petitioner filed application under Section 8-A of the said Act before the Mamlatdar complaining interference by the respondent in the said property along with application for temporary injunction. The Mamlatdar by his order dated 5-2-1993 granted ex parte temporary injunction restraining the respondent from interfering in the said property. However in the appeal filed against the said order being the appeal no.TNC/APL/11/93 the Deputy Collector on the basis of the decision of the learned Single Judge of this Court in Civil Revision Application No.138 of 1994 set aside the order of the Mamlatdar.
4. Shri V. P. Thali, the learned advocate appearing for the petitioner, drawing my attention to various sections of the said Act submitted that the judgment delivered by the learned Single Judge in Civil Revision Application No.138/94 is per incuriam in view of the decision of the Full Bench of this Court in the matter of Rajaram Totaram Patel Vs. Mahipat Mahadu Patel and others reported in AIR 1967 Bombay 408 as well as the decision of Judicial Commissioner in the matter of Sanvlo Fatu Dabale and another Vs. Shivram Laxman Korgaonkar and another, reported in AIR 1975 Goa 12. He further submitted that the correct interpretation of Section 8-A would be that in any case of interference with the tenant's possession, the relief is to be claimed from the Mamlatdar whereas the learned Single Judge in Civil Revision Application No.138/94 has held that the tenant cannot be called as a person claiming through the landlord. Drawing my attention to the decision of the Full Bench of this Court in the matter of Rajaram Totaram Patel (supra) Shri Thali submitted that the question whether a person is tenant or not is not limited to the narrow issue whether a person is a tenant of a particular landlord irrespective of the question whether the issue is raised by the landlord or the tenant or a co-tenant or any other person and it will still be a question as to whether a person is a tenant or not and therefore the same is squarely contemplated in Section 8-A. Placing reliance upon judgment of the Judicial Commissioner in Sanvlo Fatu Dabale and another Vs. Shivram Laxman Korgaonkar and another (supra), the learned advocate submitted that in a suit for injunction by a tenant seeking to restrain another person from interfering in the property when the defendant raises a plea of tenancy, the dispute squarely falls within the scope of Section 7 of the said Act and the jurisdiction lies with the Mamlatdar to decide the case. According to learned advocate, the decision of the Judicial Commissioner was binding upon the learned Single Judge as well as that of the Full Bench of this Court and in that view of the matter the decision given by the learned Single Judge in Civil Revision Application No.138 of 1994 is per incuriam.
5. Mrs. Agni, the learned advocate appearing for the respondents, on the other hand, has submitted that the issue sought to be raised by this petition has been squarely decided by the learned Single Judge of this Court in the said Civil Revision Application No.138 of 1994 after taking into consideration all the points necessary for the decision in the matter. According to the learned advocate, the said decision under no circumstances can be called as per incuriam as neither the decision of the Full Bench of this Court in the matter of Rajaram Totaram Patel Vs. Mahipat Mahadu Patel and others (supra) nor the decision of the Judicial Commissioner in the matter of Sanvlo Fatu Dabale and another Vs. Shivram Laxman Korgaonkar and another (supra) is relevant for the decision on the point sought to be raised in the petition. Taking me through the decision delivered by the Full Bench in Rajaram Totaram Patel (supra), Mrs. Agni submitted that the said decision was in relation to Section 70 r/w Section 85 of the Bombay Tenancy and Agricultural Lands Act, which provisions are not similar to Section 8-A of the said Act which was the subject-matter for elaborate discussion in the judgment of the learned Single Judge in Civil Revision Application No.138 of 1994. Similarly, learned advocate submitted that the decision of the Judicial Commissioner can be of no assistance to the petitioner as the same is not in relation to Section 8-A of the said Act and it is based entirely on interpretation of Section 7 only of the said Act.
6. Upon hearing the advocates of the parties and on perusal of record, it is seen that in Civil Revision Application No.138 of 1994, the learned Single Judge was directly concerned with the question as to whether a suit for injunction is maintainable at the instance of a tenant against a person who also claims to be the tenant in respect of the same property. This is apparent from the contents of para 8 of the judgment dated 29-1-1995 in Civil Revision Application No.138 of 1994 which reads as under:-
"8. Several points have been argued in support of the contention of the Revision Petitioners as were argued in the Courts below. The respondent also countered these arguments. Various decisions have been cited across the Bar supporting the arguments of both sides. The same team of lawyers who appeared for the petitioners in the lower Courts have appeared before this Court also. Both sides have meticulously and vehemently argued their case. However the moot question in this case as indicated above is whether a suit for injunction is maintainable at the instance of a tenant against a person who also put rival claim in respect of the property as tenant."
In other words, the learned Single Judge in the said Civil Revision Application has dealt with the same issue which is sought to be raised in the present petition and between the same parties and in relation to same subject-matter of the dispute. Perusal of the said decision of the learned Single Judge clearly discloses that the learned Single Judge after taking into consideration various provisions of the said Act as well as various decisions which were relied upon by the parties in support of their contentions and placing reliance on the judgment of the Apex Court in the matter of Firm Illuri Subbayya Chetty and Sons Vs. State of Andhra Pradesh, reported in AIR 1964 S.C. 322 as well as in the matter of H.H. the Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur Vs. The State of Rajasthan and others, reported in AIR 1964 S.C. 444 and further in the matter of Musamia Imam Haider Bax Razvi Vs. Rabari Govindbhai Ratnabhai and others, reported in AIR 1969 S.C. 439 has held that the relief provided under Section 8-A of the said Act can be granted only in favour of a tenant and against the landlord or person claiming through him and not against any other person. In other words, Section 8-A can be invoked by a tenant, whose possession is threatened by a landlord, by approaching the Mamlatdar to safeguard his right to possession and, therefore, relief under the said Section can be granted only against the landlord and those persons who step in the shoes of the landlord but not against any other person. While interpreting the words "claiming through him" in Section 8-A, the learned Single Judge has clearly held that those words mean that any person claiming right of the landlord either by way of devolution or assignment etc. can come under the purview of the said Section and not any person who merely claims to be a tenant of the landlord.
7. As rightly submitted by learned advocate for the respondent, the decision of the Judicial Commissioner in the matter of Sanvlo Fatu Dabale and another Vs. Shivram Laxman Korgaonkar and another (supra) is of no assistance in the present case since the said decision was given entirely in relation to Section 7 of the said Act. Section 7 of the said Act provides that if any question arises as to whether a person is a tenant or should be deemed to be a tenant under the said Act, then the Mamlatdar shall, after holding an enquiry, decide such question. In other words, it is only when such a question or issue arises as to whether a person is a tenant or not under the said Act that such an issue is required to be decided by the Mamlatdar after holding necessary enquiry. In a suit for injunction the main issue relates to possession. Merely because Section 7 provides that the issue of tenancy is to be decided by the Mamlatdar that by itself cannot lead to the conclusion that invariably the Mamlatdar will have jurisdiction to decide the matters between a person who is tenant of the property against another who is totally a stranger to the property. The various provisions in the Agricultural Tenancy Act relate to the relationship between the landlord and the tenant. The various provisions giving protection to the tenant in the said Act are contemplated in order to safeguard the rights of a tenant vis-a-vis derogatory actions on the part of the landlord.
8. As regards the decision of the Full Bench in the matter of Rajaram Totaram Patel (supra), undoubtedly the same was in relation to Section 70-B r/w Section 85 of the Bombay Tenancy and Agricultural Lands Act. That was a case wherein a suit was filed by a person claiming to be co-tenant along with the defendant and complaining that the defendant obstructed the plaintiff's cultivation contending that he had been declared as the purchaser of the field by the Tenancy Court after the Tiller's Day under Bombay Tenancy and Agricultural Lands Act. The plaintiff's case therein was that the decision to declare the defendant as a purchaser was taken behind their back and without hearing them and that they should have been declared as the purchasers along with the defendant. The plaintiffs alleged in the suit that they were in possession and claimed the relief of injunction against the respondents to restrain them from interfering with the plaintiffs' possession. The defendant therein on his part alleged that he was the sole tenant and the plaintiffs had no right to appeal. A preliminary issue came to be raised as to whether the Civil Court had jurisdiction to try the suit in view of provisions of Sections 70 and 85 of the concerned Act. In other words, the issue therein was whether the defendant was the sole tenant of the field in dispute or whether the plaintiff and the defendant were joint tenants of the field on the Tillers Day. Naturally in terms of Section 70 of the concerned Act, the issue was required to be decided by the Mamlatdar and, therefore, the Civil Court had no jurisdiction. In our case, as has been clearly observed by the learned Single Judge in Civil Revision Application No. 138 of 1994, considering the various provisions in the Agricultural Tenancy Act the relief which is provided under Section 8-A of the said Act cannot be said to be available to any person other than a tenant and certainly not against any person other than the landlord or a person claiming through him. In this view of the matter, the decision of the Full Bench in the matter of Rajaram Totaram Patel (supra) cannot be of any assistance to the petitioner to submit that the decision of the learned Single Judge in Civil Revision Application No. 138 of 1994 is per incuriam.
9. In any case, the said decision of the learned Single Judge in Civil Revision Application No. 138 of 1994 was delivered between the parties in the present case themselves and in relation to the same subject-matter and dispute. The said decision has become final for all purposes between the parties hereto and in the facts and circumstances of the case it is not available for the parties to contend that it is per incuriam. The petitioner did not challenge the same before the Apex Court and the same has become final for all purposes.