JUDGMENT
1. The appellants (plaintiffs in the Suit) had filed a Suit for recovery of possession and permanent injunction seeking to restrain the respondents (defendants in the Suit) from interfering with the suit property “Chambhar Bhatlem and Ginger Bhatlem” in village Pernem. The suit property consists of 3 separate plots, middle of which is paddy cultivable land and the remaining two plots lying on either side are bagayat lands containing coconut, palm, mango grafts, mango trees, jackfruit trees, bhirands, ratamba, tamarind, cashew, rimber and other trees. In this Appeal we are concerned with the two plots of bagayat lands, since there is no dispute in relation to the plot where paddy is cultivated. The plaintiffs claim that the defendants are trespassers and they are not tenants. The plaintiffs further contended in their pleadings that the watchmanship of defendant No. 1 and defendant No. 3 was terminated.
2. On the other hand, the defendants claim to be lawful tenants of bagayat lands as well as paddy land and their contention is that the entire property is agricultural land. They claim to be in possession for over 60 years as tenants.
3. On pleadings of the parties, following Issues were framed:–
1) Whether the plaintiffs prove that they are in possession of the two suit bagayat plots?
2) Whether the plaintiffs prove that the defendants are trespassers of the suit plots?
3) Whether the plaintiffs prove that even assuming that the defendants are the tenants of the property, the (plaintiffs) are entitled to terminate the tenancy?
4) Whether the defendants prove that the said two plots are only a part of the agricultural land?
5) Whether the defendants prove that they are the tenants of the property and that they have developed the whole property?
6) What Orders?
4. The trial Court answered Issue Nos. 1, 2 and 4 in the negative; Issue No. 5 in the affirmative and held that the Issue No. 3 does not survive. On the basis of the said findings, the Suit was dismissed. The Plaintiffs challenged the dismissal of the Suit before the District Court at Panaji and learned Additional District Court at Panaji and learned Additional District Judge, Panaji, vide judgment dated 11-12-1989, dismissed the said Appeal.
5. The plaintiffs have, thus, approached this Court by way of Second Appeal and the Appeal was admitted on following substantial questions of law:
a) Whether the Courts below were right in holding the Vth Amendment to the Tenancy Act as retrospective for one purpose and as prospective for another purpose?
b) Whether the Courts below were right in holding that in view of the Vth Amendment to the Tenancy Act, there could not be termination of tenancy of the respondent when the suit was filed before the Vth Amendment and after giving notices as required by law?
c) Whether the Courts below ought not to have held that the respondents’ tenancy, assuming it was proved, was in respect of bagayat lands which tenancy was not protected under the Tenancy Act and was validly terminated?
d) Whether the Courts below could hold that respondents are tenants of the suit plots in the absence of any evidence on record to that effect?
5A. In the course of arguments before me, learned counsel for the parties urged that the Apex Court in Inacio Martins v. Narayan Hari Naik, has already held that the Fifth Amendment to the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter called “the said Act”) applies to all pending proceedings. They further urged that the only substantial question of law which is required to be decided in this Appeal is whether the Civil Court had jurisdiction to decide the nature of land and tenancy claim to the same by the defendants.
6. Learned Advocate Shri Kantak argued that the Suit was filed in Civil Court in the year 1969 in respect of two plots of bagayat land which were not covered under the Agricultural Tenancy Act; Fifth Amendment came into force on 20th April, 1976 by which bagayat lands, namely, garden lands were brought within the scope and ambit of the Agricultural Tenancy Act. According to Shri Kantak, the Civil Court did not, therefore, have jurisdiction to try the question of nature of land and tenancy issue, since the jurisdiction was vested with the Mamlatdar with effect from 20th April, 1976. Shri Kantak took me through the ruling of the Apex Court in Inacio Martins v. Narayan Hari Naik, (supra) and submitted that though he had taken the plea in the lower Court and the District Court that Civil Court had jurisdiction, but in view of the said ruling of the Apex Court, issue relating to nature of land and tenancy is required to be referred to the Mamlatdar. He further pointed out that, in fact, the trial Court had directed the respondents to get declaration and the defendants had filed an application for declaration of their tenancy before the Mamlatdar, but the same was dismissed in default. He, therefore, contends that there is no need to make any reference under the circumstances and the trial Court has to examine whether the defendants are trespassers. He, therefore, submits that judgments of two Courts below dismissing the Suit and the Appeal be set aside and necessary directions be issued in the matter.
7. Learned Advocate Shri S. D. Lotlikar submitted that the tenancy claimed by the defendants is prior to Fifth Amendment and, as such, the questions as to whether defendants were tenants would arise and the Civil Court had jurisdiction to try the said issue till amendment was made to Section 7 in the year 1991. It may be pointed out here that the defence of the defendants in their Written Statement is that they are tenants and not they were tenants and, as such question as to whether defendants were tenants would not arise. According to Shri Lotlikar, with the coming into force of the Fifth Amendment, Civil Court had no jurisdiction and the plaint will have to be returned to the plaintiffs in view of the ruling of the Apex Court in Inacio Martins v. Narayan Hari Naik, (supra). He also pointed out that the Civil Court had no jurisdiction to decide regarding to nature of land in view of Section 7A which was inserted in the year 1975, but it may be mentioned here that Section 7A did not exist when this Suit had been initially filed. After relying upon Musamia Imam v. Rabari Govindbhai, , Vassu Janu Borkar v. Damodar Narcinva Naik, AIR 1980 Goa 27, Lakshmi Narayan Guin v. Niranjan Modak, and Union Territory of Goa v. Lakshimibai Narayan Patil, , it was submitted by learned Advocate Shri Lotlikar that even though the Civil Court had jurisdiction when the suit was filed, but in view of the subsequent amendments to the said Act, the plaint will have to be returned to the plaintiffs for presentation to the proper Court.
8. In reply, learned Advocate Shri Kantak submitted that the claim of the defendants as tenants of the paddy field, namely, one of the plots, is not disputed and the dispute is only relating to two plots of bagayat land. According to him, the plaint need not be returned and the defendants be directed to get the declaration from the competent Court. He also placed reliance on Musamia Imam v. Rabari Govindbhai, (AIR 1960 SC 439) (supra), Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi, and Pandurang Ramchandra Mandlik v. Shantabai Ramchandra Ghatge, .
9. The admitted facts in this case are that the Suit was filed in 1696 and the two plots involved in this Suit are bagayat lands wherein there are various trees. The plaintiffs had filed a Suit for recovery of possession and permanent injunction in which the defendants took the plea that they were tenants of the suit plots. They also took the stand that the said plots were agricultural lands. Issues were framed on the basis of the pleadings. Admittedly, when the Suit was filed the Civil Court had jurisdiction to try the Suit in view of the fact that bagayat lands (garden lands) were not covered under the said Act. Bagayat lands were brought within the ambit of the said Act by Fifth Amendment, by amending the definition of “agricultural”. The amended definition contained in Section 2(1A) includes horticulture and raising of food crops, grass or garden produce, but does not include allied pursuits. Section 2(7B) lays down “garden produce” means any produce from a garden and Section 2(7A) defines “garden” as land used primarily for growing coconut trees, arecanut trees, cashewnut trees or mango trees. The suit plots in question, admittedly, consist of such trees. Even the question as to whether the suit plots are agricultural land, which had been raised by the defendants, could be tried by the Civil Court when the Suit was filed and it is only by way of amendment and introduction of Section 7A in the year 1975 that the said question was required to be dealt with by the Mamlatdar. There is, thus, no dispute that when the Suit was filed, the Civil Court had jurisdiction, but by way of amendments to the said Act, the Civil Court lost jurisdiction to try the issue of tenancy relating to suit plots which are bagayat lands, as well as the question of nature of land.
10. The Apex Court in Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi, (supra) dealing with Bombay Tenancy and Agricultural Lands Act, 1948 had held that in a suit properly constituted and cognizable by Civil Court, wherein issues are required to be settled, decided or dealt with by a competent Authority under the Tenancy Act, the jurisdiction of the Civil Court to settle, decide or deal with the same is not only ousted, but the Civil Court is under statutory obligation to refer the issue to the competent Authority under the Tenancy Act to decide the same and, upon the reference being answered back, to dispose of the suit in accordance with the decision of the competent Authority under the Tenancy Act.
11. In the case of Inacio Martins v. Narayan Hari Naik, (supra), the Apex Court dealing with the question of retrospectivity of the Fifth Amendment has come to the conclusion that the provisions of Fifth Amendment would apply to all pending suits. The Apex Court has also dealt with the situations which may arise by virtue of the change in law. Three situations my develop in the context of the provisions of the Act as amended by the Fifth Amendment, namely, (i) Civil Court retains jurisdiction or (ii) Civil Court is precluded from deciding even incidentally, questions falling within the ambit of Section 7 of the Act; or (iii) Civil Court’s jurisdiction is wholly ousted. In the said case, the plaintiff had come to the Court contending that even though his lease was not terminated as provided by Section 9 of the Act, defendant No. 1 had dispossessed him by an act of trespass. He, therefore, sought possession of the demised property from the trespasser defendant No. 1 who raised the contention that he was lawfully inducted tenant in the lands in question by the owner defendant No. 2. In other words, defendant No. 1 dispute plaintiff’s contention that he was a trespasser and pleaded tenancy. If his plea was found to be well-founded, he would be entitled to retain possession and not otherwise. Therefore, the question which arose in the suit was whether the defendant No. 1 was in possession of the land in question and this question could not be gone into by the Civil Court in view of the clear language of Section 7 r/w Section 58(2) of the Act. After making reference to Dhondi Tukaram v. Dadoo Piraji, AIR 1954 Bom 100 and the observations to the effect that proper procedure to adopt in such cases would be to direct the party who raises such plea to obtain a decision from Mamlatdar, the Apex Court has observed that it would be just and fair that the issue whether the defendant No. 1 was a tenant in respect of lands in question should be referred to the Mamlatdar for decision and after his decision is received by the Civil Court, if the issue is held against defendant No. 1, the Civil Court may consider passing of a decree in eviction, but if on the other hand, he is held to be a tenant, the Civil Court may be required to dismiss the suit. After the decision in Dhondi Tukaram’s case (AIR 1954 Bom 100) (supra), Bombay Legislature had introduced Section 85A which provided that if in suit instituted in a Civil Court, issues which are required to be settled, decided and dealt with by a Authority competent to settle, decided and deal with the same arise, the Civil Court shall stay the suit and refer such issues to such competent Authority for determination under the Statute. The Apex Court noted that, unfortunately, even under the Act under consideration, the Legislature though aware of Section 85A, has not chosen to make any provision for dealing with such situation and it is in this context that the Apex Court directed that the issue of tenancy be referred to the Mamlatdar.
12. The case under consideration squarely falls within situation (ii) mentioned in Inacio martins’ case (supra) and, as such, it is necessary that the issue of tenancy raised by the respondents be referred to the Mamlatdar for decision. In this connection, it has been pointed out by learned Advocate Shri S. S. Kantak that the respondents were, in fact, directed by the trial Court to get declaration of tenancy and the respondents had filed application for the said purpose, but it was dismissed for default. However, it is pertinent to note that there was no decision on merits of tenancy claim by the competent Authority and the application for declaration was dismissed in default, as a result of which there is no bar for reference of the issue of tenancy to the Mamlatdar.
13. In view of the above, the impugned judgments passed by the two Courts below are liable to be set aside with a direction that the trial Court should refer the issue of tenancy as well as issue relating to nature of land, that is to say, claim of the respondents that it is an agricultural land, to the Mamlatdar for decision in view of Sections 7 and 7-A of the said Act. The Appeal is, accordingly, allowed to that extent and the impugned judgments of the two Courts below are set aside in aforesaid terms. In the facts and circumstance, I would leave the parties to bear their costs.
14. Order accordingly.
