Mr. Pandit Krishna Murari Tiwari and his wife and Others vs Chandru Gomes, (since deceased through his Legal heirs), Shri Raghu Gomes Alias Kerkar and Others

A.P. Lavande, J.—By this Civil Revision Application, the petitioners challenge the order dated 18th December, 2009 passed by the Civil Judge, Senior Division, Panaji in Regular Civil Suit No.35/2008/C by which the application under Order VII, Rule 11, C.P.C. filed by the petitioners has been dismissed. Respondent nos. 1(a) to 1(k) are the legal representatives of Chandru Gomes-the original plaintiff (since deceased) who filed the above suit against the petitioners and respondent nos. 2 to 5 seeking the following reliefs :

a) Pass Judgment, order and decree of permanent injunction thereby restraining defendants, their servants, agents, representatives, assigns from interfering with the suit property in any manner whatsoever and from creating any third party interest in the suit property and from claiming any interest and/ or benefit in respect of the suit property subject to provisions of GDD Agricultural Tenancy Act, 1964.

b) To declare that the sale deed registered in the office of the Civil Registrar Cum Sub-registrar, Ilhas, Panaji Goa, under no.713 at pages 225 to 275, Book No.I Volume No.506, dated 24.4.1996, before Sub-Registrar at Ilhas Panaji, Goa as sham, null, void, bogus and inoperable under law.

c) To order that names of defendant nos. 5,7 and 9 are liable to be deleted from form I and XIV of Records of Rights in respect of survey no.219/1 of village Morombi O grande.

The plaintiff claimed that he was the tenant of the property ''Aframento'' surveyed under survey no.219/1of village Morombi O Grande. According to the plaintiff, he was declared tenant of the suit property. However, defendant no.1 and one late Jose executed sale deed dated 24th April, 1996 in respect of the said property in favour of defendant nos. 5, 6 and 9.

On behalf of the petitioners, who are defendant nos. 5 to 10 in the suit, an application under Order VII, Rule 11, C.P.C. was filed on the grounds that (i) the reliefs sought in the suit were not available to the plaintiffs'' (ii) the suit was barred by limitation. (iii) there was no cause of action and (iv) the Civil Court had no jurisdiction to entertain the suit. The application was opposed on behalf of the plaintiffs. By the impugned order, the Trial Court dismissed the said application.

Mr. Vahidulla, learned Counsel for the petitioners submitted that the Civil Court has no jurisdiction to grant reliefs sought for since neither late Chandru Gomes nor the respondent nos. 1(a) to 1(k) have paid the price in terms of the provisions of The Goa, Daman and Diu Agricultural Tenancy Act, 1964 (''The Act'' for short) and, therefore, they are not deemed purchasers of the property and as such, they cannot claim any relief in the Civil Court. He further submitted that respondent nos. 1(a) to 1(k) have to necessarily approach the Mamlatdar, if they want to seek any relief against the defendants. According to Mr. Vahidulla, even the relief of declaration cannot be granted by the Civil Court and it is only the Mamlatdar who can make declaration in terms of Section 46A of the Act. In support of his submissions, Mr. Vahidulla relied upon the following judgments :

(i) Smt. Jaya R. Deshprabhu Vs. Shri Surendra Anant Naik Dessai; 1995(2) GLT 305.

(ii) unreported judgment dated 12th July, 1991 delivered by Division bench of this Court in F.A. no.40/1987.

Per contra, Mr. Pangam, learned Counsel for respondent nos. 1(a) to 1(k). submitted that since the original plaintiff was already declared tenant by the Mamlatdar, he is deemed purchaser and as such, he is entitled to seek reliefs sought for in the plaint before the Civil Court. In support of his submissions, he relied upon the following judgments :

(i) Ram Prakash Vs. The State of Punjab,

(ii) Bhagwantrao s/o. Jijaba Auti Vs. Ganpatrao Raut and another; 1987(3) BCR 258.

I have considered the rival submissions and perused the record.

Under Order VII, Rule 11(d), C.P.C., the plaint shall be rejected where the suit appears from the statements in the plaint to be barred by any law.

In my opinion, the Civil Court has jurisdiction to grant declaration sought for in the plaint. It is settled law that in terms of Section 9 of C.P.C. the Civil Court has jurisdiction to entertain a suit or all suits of civil nature excepting the suit of which cognizance is expressly or impliedly barred. In my opinion, Section 46A of the Act does not bar jurisdiction of the Civil Court to declare a sale deed null and void on the ground that it was executed fraudulently. Section 46A of the Act permits the Mamlatdar either upon information received or upon his own knowledge or suspicion to hold an enquiry into contravention of the provisions of the Act. The said provision, by no stretch of imagination, can be construed as conferring exclusive jurisdiction on the Mamlatdar to declare a sale deed allegedly executed fraudulently, null and void. Therefore, the Trial Court is competent to entertain prayer (b) of the prayer clause in the suit. Once it is held that the Civil Court has jurisdiction to grant one of the reliefs, it is not necessary for me to deal with the other submissions since even if the answer is in favour of the petitioners, the plaint is not liable to be rejected. However, it is made clear that I have not expressed any opinion on merits of the other rival contentions. I do not deem it necessary to deal with the authorities cited by both sides in view of the finding given above. In the result, therefore, I do not find any merit in the present revision application. Hence, the revision is dismissed with costs in favour of respondent nos. 1(a) to 1(k) which are quantified at Rs.1,500/-.