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Judgment
Rule. Heard forthwith with the consent of the learned Counsel appearing for the parties. Learned Counsel appearing for the respondents
waives service.
This petition under Article 227 of the Constitution of India takes exception to the order dated 08.03.2017 passed by the Adhoc District Judge, FTC-
I, Panaji, pursuant to which he dismissed the application filed by the petitioners to drop the respondent nos.6 to 8 from the proceedings and saddled the
petitioners to pay costs to the respondent nos.1 and 2 and the respondent nos.6 to 8.
Heard Shri M. B. D'Costa, learned Senior Advocate appearing on behalf of the petitioners who contended that the father of the first petitioner was
a tenant of the respondent no.6 under a written agreement, the lease of which was renewed on 13.06.1968 for a period of six years w.e.f. 01.06.1968.
However, pursuant to the Fifth Amendment to the Agricultural Tenancy Act, 1964, Act for short hereinafter, the Predecessor of the petitioner
Sebastiao who was a tenant became a deemed owner w.e.f. 08.10.1976. The Government pursuant to a Notification dated 24.12.1976 transferred
the assets of the respondent no.6 to the Government w.e.f. 01.01.1977. Since however, the property vested in Sebastiao on 08.10.1976 on account of
the Fifth Amendment to the Act, the said property could not be a part of the assets of the respondent no.6 as on 01.01.1977 and therefore did not form
a part of the property of the Government. He had filed a composite petition bearing no.1139/2016 claiming tenancy rights which was admitted on
10.02.2017. A Civil Suit was filed by the tenant against the trespassers who took a plea of the non-joinder of the Government as a necessary party
and who were accordingly added as parties and the suit stood assigned to the Court of the District Judge.Â
Shri M. B. D'Costa, learned Senior Advocate placed reliance in the judgment dated 12.08.2013 in Tony Gracias & Ors vs Mr. Francis Crasto &
anr. [Writ Petition No.352 of 2006] where a learned Single Judge of this Court (F. M. Reis, J.) had clearly held that when the suit was simplicitor for
injunction and the plaintiff was seeking restoration of possession to its original condition, the said parties were not necessary parties to the
proceedings. The same learned Single Judge (F. M. Reis, J), in his judgment had recorded that as the petitioners had not made any allegations nor
any material was brought on record to show that there was any lis between the petitioner and the two parties, the learned Judge was not justified to
pass the impugned order and in that view of the matter, had allowed the petition. The petitioners had filed the suit no.17/2009 against different
parties for injunction. However, in view of the addition of the Government as a party one forum of appeal was lost to the petitioners. The
petitioners had moved an application to delete the Government as a party which came to be dismissed by the impugned order even though no cause of
action was claimed against them. He once again reiterated that once the tenant became a deemed owner in view of the Fifth Amendment on
08.10.1976 prior to the coming into force of the Notification w.e.f. 01.01.1977, the property vested in the petitioners' predecessors and therefore the
respondent nos.6 to 8 were not necessary parties. The reliefs claimed in this suit were similar to those claimed in the earlier suit bearing RCS
no.133/2004. The petition had therefore to be allowed.
Shri P. A. Kholkar, learned Advocate for the respondent nos.1 and 2 contended at the outset that to substantiate the plea of deemed ownership the
petitioner had to first establish the plea of tenancy when his name was not even reflected as a tenant in the survey records. The lease on which the
petitioners banked upon was only for six years with automatic termination on 01.10.1974 and therefore no question arose of any plea of deemed
ownership. An application for impleadment of the Government was moved in 2006 which came to be allowed vide the order dated 29.10.2007
impleading the Hospicio Hospital and the Government as the necessary parties to the proceedings. He next adverted to the impugned order and
submitted that the application filed by the petitioner was about ten years after the impleadment of the respondent nos.6 to 8 as parties to the suit and
which was to seek dropping of the respondent nos.6 to 8. There was no explanation for such long delay and besides there was no exercise of
diligence by the petitioners. There was no perversity in the impugned order and therefore no case whatsoever was made out for interference.Â
Last but not the least, it was his submission that in terms of Section 56 of the Act, Government lands stood excluded from the purview of the
application of the Agricultural Tenancy Act and therefore the plea of deemed ownership could also not accrue in favour of the petitioners'
predecessor Sebastiao. On a parting note he contended that the judgment relied upon in the Writ Petition no.352/2006 was not between the
petitioners and the respondent nos.1 and 2 but arising from another proceedings and did not have any bearing on the present case. The petition had
therefore to be dismissed.
Ms. Neha Kholkar, learned Additional Government Advocate appearing for the respondent nos.6 to 8 invited attention to the reply filed on behalf of
the said respondents to the application for their deletion moved by the petitioners and submitted that the tenancy issue framed by the Trial Court had
been dismissed against the petitioners and similar was the position in the revision application filed by the petitioners. The petitioners were purposely
delaying the proceedings with an intention to take undue advantage of the suit property and therefore the impugned order did not call for any
interference. Besides, she adopted the arguments of Shri P. A. Kholkar, learned Advocate appearing for the respondent nos.1 and 2 and submitted
that no prejudice would be caused to the petitioners in case the respondent nos.6 to 8 continued to be in the proceedings. Finally, it was her
contention that the order impleading the respondent nos.6 to 8 dated 29.10.2007 had attained finality and on that count too the petition had to be
dismissed.
i have taken note of the contentions of Shri M. B. D'Costa, learned Senior Advocate appearing for the petitioners, Shri P. A. Kholkar, learned
Advocate appearing on behalf of the respondent nos.1 and 2 and Ms. Neha Kholkar, learned Additional Government Advocate on behalf of the
respondent nos.6 to 8. Besides, i have also considered the supporting records and the judgments in Writ Petition No.352/2006 to better appreciate
their contentions.
First and foremost, the petitioners had filed the RCS no.133/2004 against the respondents herein except respondent nos.6 to 8 for injunction and for
recovery of possession. The respondent nos.6 to 8 came to be impleaded in view of the objections raised on behalf of the respondent nos.1 and 2 to
the non-joinder of necessary parties and in view thereof the same suit came to be placed on the file of the District Court as the Government was
impleaded as the partyrespondent to the proceedings. The order dated 29.10.2007 impleading the respondent nos.6 to 8 was apparently not
challenged at the instance of the petitioners and which has attained finality as rightly submitted by Shri P. A. Kholkar, learned Advocate for the
respondent nos.1 and 2 and Ms. Neha Kholkar, learned Additional Government Advocate appearing on behalf of the respondent nos.6 to 8. It is
only ten years later that the petitioners sought leave of the District Court to drop the respondent nos.6 to 8 from the cause title and to remit the matter
back to the Court of the Civil Judge, Junior Division, Panaji, where it initially lay. The respondents had raised an objection to such application and it
is pursuant to the impugned order dated 08.03.2017 that the learned Adhoc District Judge dismissed the application and besides saddled the petitioners
with costs to be paid to the respondent nos.1 and 2 on the one hand and the respondent nos.6 to 8 on the other.
Coming to the aspect of tenancy, apparently the petitioners had not produced any survey records to show that the name of their Predecessor
Sebastiao was recorded as a tenant therein. The only document on the basis of which such claim of tenancy was raised, was the lease agreement
dated 13.06.1968 and that too of being taken in public auction and which was to last for a period of six years from 01.06.1968 and to end by
31.05.1974 irrespective of any notice or notification in that regard. Therefore, the contention on behalf of the petitioner that their predecessor had
become a deemed owner in view of the amendment to the Agricultural Tenancy Act w.e.f. 08.10.1976 and/or that he would not be affected by the
notification transferring the assets of the respondent no.6 to the Government vide the order dated 24.12.1976, would not advance their case.Â
However, it is another matter that the petitioners had challenged in Writ Petition No.1129/2016 the denial of their plea of their tenancy by various fora
and on the petition being admitted on 10.02.2017 which is an altogether a different matter and can have no bearing on the case at hand.
No doubt, the argument of Shri D'Costa, learned Senior Counsel carries weight that by the joinder of the Government as a party to the
proceedings, one forum of appeal was lost to the petitioners but that by itself cannot be a ground to set aside the impugned order when the learned
Trial Judge had duly considered the plea raised on behalf of the petitioners and the respondents and held against them. The issue whether the
petitioners' predecessor was a tenant who continued to be in possession would continue in possession till the eviction and entitled to recovery of
possession if evicted, are matters which can be pursued in an independent petition filed before another Single Judge. Though there may appear
force in his contention that there was no allegation in the suit against the respondent nos.6 to 8 and/or that they were not necessary parties, the
petitioners had no explanation to account for the lack of diligence and the delay and laches in seeking to drop the respondent nos.6 to 8 from the
proceedings after a lapse of ten years when the application to add these respondents as parties was allowed as way back on 29.10.2007. Last but
not the least, by virtue of Section 56 of the Act, the contention on behalf of the petitioners that their predecessor became a deemed owner would also
not stand the test of scrutiny when the operation of being the deemed owner pursuant to the Fifth Amendment would not apply in respect of the lands
owned by the Government. Looked at from any view point, the impugned order does not suffer from the vice of illegality nor is there any
jurisdictional error calling for the exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
In view thereof, there is no merit in the petition, which is accordingly dismissed.
Rule is discharged.