25 February 2020
Supreme Court
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SITABAI SHANTARAM TALAWNEKAR Vs CUSTODIAN OF EVACUEE PROPERTY .

Bench: HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR, HON'BLE MR. JUSTICE R. SUBHASH REDDY
Judgment by: HON'BLE MR. JUSTICE R. SUBHASH REDDY
Case number: C.A. No.-008802-008803 / 2013
Diary number: 35364 / 2009
Advocates: T. MAHIPAL Vs K J JOHN AND CO


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C.A.Nos.8802-8803 of 2013 etc.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.8802-8803 OF 2013

Sitabai Shantaram Talawnekar & Ors.    …..Appellants

Versus

Custodian of Evacuee Property & Ors.         …..Respondents

W I T H Contempt Petition(C)Nos.187-188 of 2012

In Civil Appeal Nos.8802-8803 of 2013

[Arising out of S.L.P.(C)Nos.35980-35981 of 2009]

J U D G M E N T

R. Subhash Reddy, J.

Civil Appeal Nos.8802-8803 of 2013

1. These civil appeals are filed, aggrieved by the judgment and order

dated 08.05.2009 passed in W.P. No.142 of 2009 and the judgment and

order  dated 09.09.2009 passed in L.P.A. No.14 of  2009 by the High

Court of Bombay at Goa.   

2. The  subject  matter  of  dispute  relates  to  property  known  as

‘Conde-Mayem’.  The said property, covered by Survey Nos.113, 116,

114 and 115/1, 2 and 3, is situated at Mayem, Bicholim in the State of

Goa.   The  said  property  originally  belonged  to  one  Eurico  de  Soza

Joquem Noroana.   After  the liberation  of  Goa the said  property  was

declared as evacuee property and same was under the supervision of

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the Custodian of Evacuee Property, under provisions of the Goa, Daman

and  Diu  Administration  of  Evacuee  Property  Act,  1964  (for  short,

‘Evacuee Property Act’).  The appellants claim to be in possession of the

aforesaid properties as tenants of the Custodian.  When there was a

dispute  between  the  predecessors  of  the  appellants  and  the  2nd

respondent (now represented by his legal heirs), the predecessors of the

appellants  filed  Civil  Suit  No.126  of  1984  on  the  file  of  Civil  Judge,

Senior  Division,  Bicholim praying  for  permanent  injunction  restraining

the respondent-defendant  from interfering  with  the suit  property.   On

15.07.1985 the Civil Judge, Senior Division, Bicholim granted ex-parte

injunction in the civil suit and it is stated that the appeal filed before the

District Judge by the 2nd respondent ended in dismissal.  On 05.11.1984

respondent no.2 filed an application before the Court  of Custodian of

Evacuee  Property,  Panji,  claiming  that  he  was  in  possession  of  the

portion of cashew garden and the appellants were trying to evict him as

he was not paying the exorbitant rent demanded by the appellants.  Vide

order dated 21.01.1986 the Custodian of Evacuee Property dismissed

the application of respondent  no.2.   Alleging that inspite of  injunction

orders  obtained  by  the  appellants  in  Civil  Suit  No.126  of  1984,

respondents  were  interfering  with  the  property  in  question,  the

appellants  got  police  protection  from the  trial  court  vide  order  dated

29.08.1989.  Thereafter the 2nd respondent filed Regular Civil Suit No.60

of 1990 in respect of portion of property covered by Survey Nos.114 and

116 and the said suit ended in dismissal vide order dated 18.12.1992.

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3. As per Section 56 of Goa, Daman and Diu Agricultural Tenancy

Act, 1964 (hereinafter referred to as, ‘the Tenancy Act’), the Act was not

applicable  in  respect  of  evacuee  properties.   By  virtue  of  Goa

Administration  of  Evacuee  Property  (Amendment)  Act,  1989,  the

provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 were

made applicable to the evacuee properties.  In view of such amendment,

respondent no.2 filed an application under Sections 7 and 8-A of  the

Tenancy Act seeking declaration that he is a tenant of the portion of the

suit  properties  covered  in  Civil  Suit  No.126  of  1984.   The  primary

authority,  i.e.,  Joint  Mamlatdar-I,  Bicholim,  Goa  vide  order  dated

30.08.2002 allowed the application declaring the 2nd respondent  as a

tenant.  The said order is confirmed by the appellate authority vide order

dated 08.01.2003 and further confirmed by Administrative Tribunal vide

order dated 30.12.2008.  When the appellants have filed writ petition in

W.P.No.142 of  2009 questioning the aforesaid orders,  learned Single

Judge of the High Court of Bombay at Goa dismissed the writ petition

vide order dated 08.05.2009.  When the said order is appealed before

the Division Bench, by way of Letters Patent Appeal, same is dismissed

as not maintainable.  Though the Division Bench of the High Court did

not go into merits of the matter, but in view of the long standing dispute

between  the  parties,  we  have  heard  the  matter  on  merits  with  the

consent of the learned advocates appearing on both sides.

4. Learned senior counsel Sri Siddharth Bhatnagar appearing for the

appellants  has  contended  that  the  application  of  the  2nd respondent

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claiming tenancy  was allowed without  recording  any valid  reasons in

support of the claim.  It is submitted that the alleged oral compromise is

made basis by the primary authority for allowing the application without

examining the relevant aspects as per the provisions of Tenancy Act for

declaration of tenant.  It is submitted that there is no evidence on record

to show that 2nd respondent was a ‘tenant’ or ‘deemed tenant’ within the

meaning of  the Tenancy Act and rules made thereunder to allow his

application for declaration of tenancy rights.  It is further submitted that

undisputedly land in question is an evacuee property governed by the

provisions of the Evacuee Property Act and that though originally the

Tenancy Act was not applicable to evacuee properties but only by virtue

of Amending Act 19 of 1989, the said Act is made applicable to evacuee

properties for tenancies created by Custodian.  It  is further submitted

that in absence of any acceptable evidence on record to show that 2nd

respondent was tenant of the land in question his claim was erroneously

allowed  by  the  primary  authority  and  no  other  authority,  namely,

appellate and revisional authorities and the learned Single Judge of the

High Court have considered the matter in proper perspective and have

confirmed the order mechanically.

5. On the other hand, Sri P. Venugopal, learned counsel appearing

for the legal heirs of the 2nd respondent, has submitted that there is a

concurrent finding by all  the authorities which is confirmed by learned

Single  Judge  of  the  High  Court,  as  such,  there  are  no  grounds  to

interfere with the same.  It is submitted that the parties are related and

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the 2nd respondent was in possession of a portion of the land which is

covered by the application claiming tenancy rights and the oral evidence

led  before  the  primary  authority  confirms  the  possession  of  the  2nd

respondent.  It is further submitted that in view of the available oral and

documentary  evidence  on  record,  the  primary  authority  has  declared

tenancy in favour of 2nd respondent and there are no grounds to interfere

with  the  impugned  orders  passed  by  the  High  Court  confirming  the

orders of the statutory authorities.

6. Having heard learned counsels on both sides, we have perused

the impugned order and other material placed on record.   

7. The Goa, Daman and Diu Agricultural  Tenancy Act, 1964 is an

Act to provide for the regulation of the terms of tenancy with respect to

agricultural lands in the Union Territory of Goa, Daman and Diu.  Section

2 sub-section (23) of the Tenancy Act defines the term, ‘tenant’.  As per

the aforesaid Section ‘tenant’ means a person who on or after the date

of  commencement  of  the  Act  holds  land  on  lease  and  cultivates  it

personally and includes a person who is or was deemed to be a tenant

under the Act.  Section 4 of the Tenancy Act deals with the ‘persons

deemed to be tenants’.  As per Section 4 deemed tenant is a person

lawfully cultivating any land belonging to another person on or after the

1st of  July,  1962  but  before  the  commencement  of  the  Act,  i.e.,

08.02.1965.  Section 56 of the Act originally exempted certain categories

of  lands,  including  the  lands  covered  by  the  Goa,  Daman  and  Diu

Administration of Evacuee Property Act, 1964.   5

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8. The Goa, Daman and Diu Administration of Evacuee Property Act,

1964 and the Goa, Daman and Diu Agricultural Tenancy Act, 1964 are

amended by the Amending Act 19 of 1989,  extending the benefits of

Tenancy Act to the evacuee properties.  As per Section 2(kkk) of the

Amending Act,  ‘tenancy’  means the relationship  existing between the

tenant and the Custodian; and as per Section 2(kkkk) ‘tenant’ means a

person  who  on  or  after  the  date  of  commencement  of  the  Goa

Administration of Evacuee Property (Amendment) Act, 1989, holds land

and cultivates it personally but does not include a person who holds land

on lease for the purpose of plucking the fruits only.  Section 3 of the

Amending Act amends Section 3 of the principal Act, to override other

laws.  As amended, Section 3 of principal Act reads as under :

“3. Act to override other laws.—

(1) On and from the date of coming into force of the Goa Administration of Evacuee Property (Amendment) Act, 1989, the  provisions  of  the  Goa,  Daman  and  Diu  Agricultural Tenancy  Act,  1964  (Act  7  of  1964),  for  the  time  being  in force, shall apply in respect of agricultural land and tenancies created by the Custodian.  

(2) The provisions of this section shall, save as otherwise expressly provided, have effect notwithstanding anything to the  contrary  contained  in  any  instrument  having  effect  by virtue of any such law.”

A  reading  of  definition  of  ‘tenancy’  and  ‘tenant’  coupled  with  the

amended Section 3 of the principal Act makes it clear that the provisions

of  Goa,  Daman  and  Diu  Agricultural  Tenancy  Act,  1964  are  made

applicable  only  to  agricultural  land  and  tenancies  created  by  the

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Custodian.  There is yet another important aspect which has bearing on

the issue is the provision under Section 32 of the Evacuee Property Act

which reads as under :

“32.  Transactions  relating  to  evacuee  property  void  in certain circumstances.-(1) As from the commencement of this  Act,  no  transfer  of  or  transaction  in  respect  of  any property  belonging  to a  Portuguese national  shall  be valid unless it is made with the previous approval of the Custodian.

(2) Subject to the other provisions contained in this Act, every transaction entered into by any person in respect of property declared or deemed to be declared to be evacuee property within the meaning of this Act shall be void unless entered into by or with the previous approval of the Custodian”

Section 32,  as referred to above,  makes it  clear  that  any transfer  or

transaction in respect of any evacuee property is not valid unless it is

made with the previous approval of the Custodian.

9. From a perusal  of  the impugned orders passed by the primary

authority, appellate authority and the revisional authority and the order of

the learned Single Judge of the High Court, we are of the view that the

claim  of  the  2nd respondent  is  allowed  without  recording  any  valid

reasons based on acceptable evidence to prove the tenancy as claimed

by him.  The 2nd respondent has not claimed tenancy directly from the

Custodian, in absence of which he cannot have the benefit of Amending

Act  19 of  1989.   Amending  Act  19 of  1989 which amends the Goa,

Daman and Diu Administration of Evacuee Property Act, 1964 and the

Goa, Daman and Diu Agricultural Tenancy Act, 1964 makes it clear that

‘tenancy’  means  the  relationship  existing  between  tenant  and  the

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Custodian.  The 2nd respondent has not claimed tenancy on the basis of

relationship existing with the Custodian.  Further, by virtue of Section 3,

as amended, the provisions of Tenancy Act are made applicable only to

agricultural  land  and  tenancies  created  by  the  Custodian.   The  said

provision is a provision overriding other laws.  Even as per the claim of

the 2nd respondent he was not in possession at the time of making the

application  but  it  was  his  case  that  he  was  dispossessed  after  the

appellants’ predecessors obtained injunction orders in Civil Suit No.126

of 1984.  As such, he has claimed to be a deemed tenant within the

meaning of Section 4 of the Tenancy Act.  To establish deemed tenancy

under  Section  4  of  the  Tenancy  Act,  one  has  to  prove  that  person

claiming deemed tenancy was in possession on or after the 1st of July

1962 and before the commencement of the Act, i.e., 08.02.1965.  The

2nd respondent has not filed any acceptable documentary evidence to

prove  that  he  was  in  possession  during  the  relevant  time  to  claim

tenancy.  Even to claim sub-tenancy or transfer from the predecessor of

the appellants, who was admittedly tenant from the Custodian under the

provisions  of  the Evacuee Property  Act,  there  was no prior  approval

from the Custodian as contemplated under Section 32 of the Evacuee

Property  Act.   The  primary  authority,  though  referred  to  various

objections raised by the appellants herein, has allowed the application

based on the alleged oral settlement by the appellants’ predecessor and

the  2nd respondent.   Such  oral  settlement  which  is  disputed  by  the

appellants  cannot  be  the  basis  for  grant  of  tenancy  rights  on  the

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application  made  by  the  2nd respondent.   Even  the  appellate  and

revisional  authorities  have  not  considered  the  relevant  aspects  and

disposed of the appeal and revision.  Learned Single Judge of the High

Court, by giving credence to the inspection report and excise licences

obtained  by  2nd respondent,  has  confirmed  the  order  passed  by  the

authorities.   

10. For the aforesaid reasons, we allow these appeals and set aside

the  impugned  orders,  consequently  the  application  filed  by  the  2nd

respondent  before  the  Joint  Mamlatdar-I  of  Bicholim  in  Case

No.JM/-1/TNC/19/95 stands dismissed.

Contempt Petition(C)Nos.187-188 of 2012

11. In the Special Leave Petitions, while issuing notice on 14.12.2009,

this Court has ordered to maintain status quo with regard to possession

of the lands in question.  Alleging that legal representatives of the 2nd

respondent  have violated  the  said  order,  appellants  have moved the

contempt petitions.  In view of the final orders passed by this Court in

these  civil  appeals  it  is  not  necessary  to  pass  any  orders  in  these

contempt petitions at this stage.  Accordingly, these contempt cases are

closed.

………….…………………………………J. [L. NAGESWARA RAO]

….…………………………………………J. [R. SUBHASH REDDY]

New Delhi. February 25, 2020.

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