Writ petition challenging a revision order that upheld a Mamlatdar finding of res judicata in a tenancy dispute. The Court rejected the petition, holding the deceased widow represented the estate and barring the claim.
Writ petition dismissed; rule discharged with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 317 OF 2016
Caranzalem, P.O. Ilhas, Goa. …. Petitioners
V e r s u s
Assam – 786 003. ….. Respondents
Shri V. Menezes with A. Shirodkar, Advocates for the Petitioners.
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CORAM: C. V. BHADANG, J. Reserved on 10th February, 2017. Pronounced on 20th February, 2017
JUDGMENT:
Rule, made returnable forthwith. The learned counsel for the respondent nos. 1, 3 and 4 waive service. Heard finally by consent of parties.
That Maria Bernadeth, the respondent no.2 (since deceased) had instituted Regular Civil Suit no.93/1992 against the respondent no.1 and his
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wife Mrs. Sunanda Morjakar. That was in respect of field survey no.429/10 of village Anjuna Bardez-Goa. The case made out by now deceased Bernadeth was that the said field was a rocky land not meant for cultivation for any paddy or allied crop. It was contended that her mother-in-law used to cultivate the suit field on experimental basis which was unsuccessful. It was the material case that during the survey, the name of the respondent no.1 was wrongly entered in the tenant's column of Form No. I and XIV of the said field and that was without the knowledge of the respondent no.1 Mrs Bernadeth. The suit was filed for a declaration that the respondent no.1 and his wife Sunanda have no right, tittle or interest in the suit field and the respondent no.2, Mrs. Bernadette, is the owner and is in possession of the suit field. The respondent no.2 (since deceased) also sought a direction to the survey authorities to delete the name of the respondent no.1, Kanta Morajkar from the tenant's column.
section 7 of the Tenancy Act, which order was confirmed by the learned Deputy Collector. On 5/2/1996 the respondent no.2 (since deceased) sought
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to challenge the order before the Administrative Tribunal in the year 2004 seeking condonation of delay of 8 years and 59 days. The learned Administrative Tribunal by an order dated 18/2/2005 refused to condone the delay. The respondent no.2, unsuccessful challenged the said order before this Court in W.P. No.270/2005, which was dismissed on 20/10/2005. Thus the order declaring the respondent no.1 as a tenant has attained finality. It is undisputed that in pursuance of the declaration the respondent no.1 has purchased the land under the provisions of the Tenancy Act and the purchase proceedings are finalized by the Mamlatdar.
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his favour without arraying the petitioners or the respondent nos.3 and 4 as party respondents before the Mamlatdar. In short, it was claimed that the respondent no.1 managed to obtain a declaration by misrepresentation.
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framed thereunder, in order to submit that such a power to entertain a preliminary objection cannot be conceded to the Mamlatdar under the provisions of the Tenancy Act. The learned counsel has referred to section 53 of the Tenancy Act and Rule 10 of the Goa, Daman and Diu Agricultural Tenancy Rules 1965 (Rules for short) in order to submit that the Mamlatdar cannot decide the application on the basis of a preliminary objection. It is next contended that after the death of Antao, the petitioners and the respondent nos.3 and 4 were together the moiety share holders, in the subject land and the application could not have been decided in their absence. It is submitted that the respondent no.1 was aware of the legal heirs of Antao, however, he chose to make only the respondent no.2 (since deceased) as a party to the application. It is submitted that the petitioners and the respondent nos. 3 and 4 being necessary parties, the application could not have been decided in their absence. On behalf of the petitioners reliance is placed on the decision of this Court in the case of Smt. Maria Tecla Goes Pereira Vs. Denzyl Lobo and another MANU/MH/0613/1992.
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learned Dy. Collector was in error in interfering with the order of the learned Mamlatdar by which the preliminary objection was rightly rejected by the learned Mamlatdar.
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the estate as legal representative, in as much as a the legal representative would include a person who represents the estate or intermeddles with the same, though without a title (to the extent of the moiety share). Reliance is also placed on the decision of the Hon'ble Supreme Court in the case of Dolai Maliko (dead) Represented by His Legal Representatives and Others Vs. Krushna Chandra Patnaik and others (1966) Supp SCR 22: AIR 1967 SC 49.
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This would be evident from Rule 10 (1) which inter alia provides that the application need not be in any specific form and where the application contains sufficient particulars on the subject matter, which appears to fall within the scope of the Act and within his jurisdiction, but does not clearly set out the relief, the Mamlatdar shall explain to the person presenting the application the nature of the relief available under the Act and shall inquire whether the applicant desires to obtain any such relief. Under sub rule 2 of Rule 10 also, if the Mamlatdar finds that the application does not contain the particulars or is unnecessarily prolix, the Mamlatdar shall forthwith examine the applicant on oath and ascertain from him such of the particulars specified in section 46, as are not clearly and correctly stated in the application and shall reduce the examination to writing in the form of an endorsement or an annexure. Sub rule 4 then provides that once the application is presented, if necessary, the Mamlatdar shall require the applicant to verify the application in his presence. Thus looking to the fact that the tenancy Act is a piece of beneficial legislation, the rules attribute a proactive role to the Mamlatdar in assisting the applicant to file the application. Thus the proceedings before the Mamlatdar cannot be said to be governed by strict procedural rules.
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not permit the Mamlatdar to entertain a preliminary objection or to decide the application on the basis of preliminary objection. In my considered view, having regard to the fact that the provisions of the Act and the Rules do not envisage strict procedural rigor applicable to the proceedings before the Mamlatdar, it cannot be accepted that the Mamlatdar cannot entertain any preliminary objection. It is evident that the power to decide the application would include a power to decide the application on the basis of a preliminary objection. The question would obviously depend upon facts and circumstances of each case. For instance, if the application and the relief claimed therein turns upon a pure question of law or turns upon facts which are not disputed, it would be preposterous to say that the Mamlatdar would be required to conduct an inquiry. The nature and extent of such an inquiry would again depend on the facts and circumstances of each case. In my considered view, no prohibition can be read in the Act or the Rules to say that the Mamlatdar cannot decide the application on the basis of a preliminary objection.
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said that the Mamlatdar had traveled beyond the jurisdiction conferred on him by law. To put it otherwise, the act of the Mamlatdar in entertaining a preliminary objection in my humble view cannot tantamount to a jurisdictional error or an error where the Mamlatdar had acted without jurisdiction. In that view of the matter, I am unable to persuade myself to uphold the contention raised on behalf of the petitioners that the Mamlatdar could not have entertained the preliminary objection. In fact, there is nothing on record to show that such a contention was raised before the Mamlatdar. In fact the Mamlatdar was with the petitioners when the preliminary objection was rejected. It is only after the learned Dy. Collector allowed the preliminary objection that this contention is raised. Be that as it may, the contentions in this regard cannot be accepted.
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order dated 21/4/2008 in the purchase proceedings, the respondent no.1 has purchased the land by paying a sum of Rs.1140/- as the purchase price.
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the respondent nos.3 and 4 as they were the necessary parties. Strong reliance in this regard is placed on the decision of this Court in Smt. Maria Tecla G. Pereira. That was a case in which the respondent Denzyl Lobo had filed a suit for declaration that he has tenancy rights in respect of an area admeasuring 37 sq.mts in a building which was already completed belonging to the applicant/Maria Tecla G. Pereira. It was contended that the respondent/ Denzyl was entitled to possession of an equal area in the new building erected in its place. The suit was filed by the respondent against the appellant Mrs. Maria Tecla G. Pereira and her father Pascoal Goes. It was claimed that the tenancy was created somewhere in the year 1966 by Pascoal Goes who was managing the buildings. The suit was partly decreed by the trial Court declaring the respondent Denzyl Lobo as a tenant in respect of two rooms with a carpet area of 37 sq.mtrs. The appeal filed by the appellant and Pascoal was dismissed by the appellate Court which was subject matter of challenge in the second appeal. One of the contentions was that the suit was bad for non joinder of Lourenco Manual Pereira, the husband of the appellant Maria Tecla. In that case admittedly the two buildings belonged to the appellant and her husband Lourenco and the respondent (original plaintiff) was fully aware at the time of the filing of the suit that the husband of the appellant was also the owner of the suit premises. It was in these circumstances found that having known this, it was his bounden duty to join
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him in the suit.
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trial Court's order dismissing the suit and the matter reached the Hon'ble Supreme Court. The Supreme Court after taking a survey of various decision held that in a case where a person brought on record is a legal representative, it would be consonant with justice and principle, that in the absence of fraud or collusion, the bringing on record of such a legal representative is sufficient to prevent the suit from abating. In para 11 of the judgment it has been held that where the plaintiff or the appellant dies and all his heirs have not been brought on record because of oversight or because of some doubt as to who are the heirs, the suit or the appeal, as the case may be, does not abate and the heirs brought on record fully represent the estate, unless there are circumstances like fraud or collusion.
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stipulates a person who may or may not be the heir, competent to inherit the property of the deceased, but he should represent the estate of the deceased person. It has further been held that it includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. If there are many heirs, those in possession bonafide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased (see para 4 of the judgment).
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property. I do not find that such a distinction can be justifiably made when question is about the scope and meaning of a legal representative and to what extent a legal heir represents the estate.
interference is made out. The petition is accordingly dismissed. Rule is discharged with no order as to costs.
C. V. BHADANG, J.
Ap/
3 issues framed by the court
Whether the Mamlatdar could decide the application for negative declaration based on a preliminary objection regarding res judicata without conducting a full inquiry.
Whether the respondent no.2, as the widow of Antao, validly represented the entire estate (including the husband's share) of the deceased without the other heirs being impleaded.
Whether, given the final order declaring the tenant and the estate representation, the petitioners have locus standi to file a fresh application for negative declaration.
Colour shows how this judgement treated each authority
Smt. Maria Tecla Goes Pereira Vs. Denzyl Lobo and anotherDistinguished¶17
Smt. Maria Tecla Goes Pereira Vs. Denzyl Lobo and another MANU/MH/0613/1992
Custodian of Branches of Banco National Ultramarino Vs. Nalini Bai NaiqueDistinguished¶14
Custodian of Branches of Banco National Ultramarino Vs. Nalini Bai Naique (1989) Supp) (2) SCC 275, · Who else cites this
Dolai Maliko (dead) Represented by His Legal Representatives and Others Vs. Krushna Chandra Patnaik and othersRelied on¶25
Dolai Maliko (dead) Represented by His Legal Representatives and Others Vs. Krushna Chandra Patnaik and others (1966) Supp SCR 22: AIR 1967 SC 49.
2 provisions across 2 enactments
Mrs. Bernadette Maria C. Mascarenhas
Mr. Arthur Anthony Michel Viegas
Mr. Kanta N. Morajkar
Maria Bernadeth E. Macarnehas
Stella Lucille Eithne Mascarenhas
Mr. Shaukat Mohammad Raham
C. V. BHADANG
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
