M/s Suvarn Rajaram Bandekar Discretionary Trust vs Advocate Sunifer Cardozo & Ors

Leave granted.

By the impugned judgment, the High Court has confirmed the orders passed by the Administrative Tribunal remanding the matter to the Mamlatdar for deciding the issue referred to in Special Civil Suit No. 153/1992/B (Old Number). The issue which was originally referred in the said suit, by the Civil Judge (Senior Division) at Margao to the Mamlatdar, reads thus:

"Whether the defendant proves that he is Mundkar of the part of the suit property as mentioned in para 3 of the suit property?".

Thus, the Mamlatdar was required to consider and decide the said issue in respect of the property mentioned in para 3 of the Special Civil Suit No. 153/1992/B filed by the Appellant against the Respondents herein. However, the Mamlatdar by order dated 21.12.2017 reframed the said issue, without giving opportunity of hearing to Respondent No.1 and the other Respondents herein. Hence the Administrative Tribunal remanded the matter for decision on the issue as originally framed.

Since we accept the reasoning of the Administrative Tribunal and the High Court that Sunifer Cardozo, who is Respondent No. 1 herein, and certain other Respondents need to be heard and thus the matter ought to be remanded to the Mamlatdar, we do not propose to interfere in the order of remand.

Mr. Ranjit Kumar, learned senior counsel appearing on behalf of the Appellant, taking us through the material on record, more particularly para 3 in Special Civil Suit No. 153/1992/B, contends that para 3 of the said suit includes the entire property bearing Survey No. 76/1 (old) which was subsequently sub-divided into Survey Nos. 76/1 and 76/1-A. Though the Appellant's brother (representative of Respondent No. 7 herein) has admitted that Respondent No. 2 is the Mundkar of his portion of the suit property bearing Survey No. 76/1, the Appellant disputes the contentions of Respondent Nos. 1 to 6 that they are Mundkars of the structures situated in Survey No. 76/1-A as well. Thus, according to the Appellant, the issue as reframed by Mamlatdar in the following terms:

"Whether applicants in this case proves that they are mundkars of dwelling house situated in North portion of the property presently surveyed under Survey number 76/1 belonging to the respondent no.2, which structure identified under alphabet A and 7 other structures and hay stack place situated in southern portion of the property presently surveyed under survey no. 76/1-A which structures are identified under alphabets B,C,D,E,F,G,I and J on the sketch at exhibit A1"

was appropriate under the facts and circumstances of the case for deciding the matter.

Be that as it may, since the issue referred by the Administrative Tribunal to the Mamlatdar as mentioned supra in Paragraph 2, needs to be decided by the Mamlatdar in its letter and spirit, we do not propose to comment anything further. We direct the Mamlatdar to decide the issue as originally referred to it, relating to the property contained in para 3 of the Special Civil Suit No. 153/1992/B. While doing so, all the parties should be heard in the matter. We further clarify that since evidence has already been recorded fully before the Mamlatdar, we do not propose to reopen the recording of evidence. In other words, additional evidence need not be recorded by the Mamlatdar with respect to Civil Suit No. 153/1992/B. The Mamlatdar shall decide the issue raised in the said Civil Suit referred to him on merits and as per the procedure contained in the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 as early as possible, but not later than one year from today.

It is also relevant to note that an additional issue No. 6 was framed by the Civil Judge (Senior Division) in Civil Suit No.64/92/B between the same parties, in respect of the suit property, which reads as under:

"Whether the defendant proves that he is a mundkar with respect and the suit structures as referred in para 7 of the plaint.(29.6.99)."

The above said issue was not referred to the Mamlatdar for adjudication as required under the provisions of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975. Rather, as we find from the record, the said suit C.S No. 64/92/B was adjourned sine die. We feel that the aforesaid issue also needs to be decided by the Mamlatdar to put an end to the litigation once for all and to do complete justice to the parties. Hence we in exercise of our jurisdiction under Article 142 of the Constitution of India, direct the Civil Judge (Senior Division) Margao to refer the aforementioned issue in Civil Suit No. 64/92/B to the jurisdictional Mamlatdar, if already not referred, for adjudication forthwith.

The parties are at liberty to lead their evidence, if they so choose and if it is necessary in support of their case, only with respect to the issue referred as above in Special Civil Suit No. 64/92/B.

The Mamlatdar is directed to adjudicate and decide on both references as early as possible, but not later than one year from today.

The orders of the Administrative Tribunal as well as the High Court are set aside, and the appeals are disposed of in the aforesaid terms. All questions of law are kept open.