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RABINDRA A.L. DIAS V/S ELIZA D'SILVA & ANOTHER, decided on Friday, September 2, 2016.
[ In the High Court of Bombay (Goa Bench), Appeal From Order No. 59 of 2015. ] 02/09/2016
Judge(s) : NUTAN D. SARDESSAI
Advocate(s) : J.J. Mulgaonkar. R1, C.A. Coutinho.
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    1. Heard.2. Admit.2 A.O. no.59 of 20153. Shri C. A. Coutinho learned Advocate waives service of notice on behalf of the respondent no.1.4. This is an appeal under Order XLIII Rule 1(u) of Civil Procedure Code (“C.P.C.” for short) assailing the judgment and decree dated 11/09/2015 passed by the District Judge-II Margao whereby the learned Appellate Court had remanded the matter to the trial Court with the direction to refer the issue of mundkarship to the Mamlatdar for adjudication. Shri J. J. Mulgaonkar learned Advocate for the appellant submitted that he had filed the suit to restrain his mother from alienating the suit property and to restrain the respondent no.1 from interfering in the suit property which was dismissed by the trial Court by the judgment and decree dated 24/03/2015. He had preferred an appeal before the District Court but which had gone at a tangent to the issue of mundkarship and to remand the matter to the trial Court with a direction to refer the issue of mundkarship to the Mamlatdar for adjudication without formulating any point for determination.5. Shri J.J. Mulgaonkar learned Advocate further contended that there were no pleadings on the issue of mundkarship raised by the respondents and yet the Appellate Court had made an order of remand of the file to the trial Court. The issue no.3 as framed did not at all arise for determination and besides the respondents had not sought any relief of declaration and hence no question arose of referring such an issue. No reasons were assigned for the said findings nor was there any appreciation of the pleadings. The Appellate Court ought to have considered all the contentions which it failed to do. He relied in Mitra of Archdiocese of Goa and Daman v/s. Mr. K. Vijayadharan [1999(2) Goa L.T. 97] and Thomas Antony v/s. Varkey Varkey [(2001) 1 SCC 35 which held that the frivolous plea had not to be entertained. The Appellate Court had read the statement in the plaint out of context coupled with the pleadings in the written statement to hold that the mundkarial issue had arisen for consideration necessitating a remand of file.6. Shri J. J. Mulgaonkar learned Advocate for the appellant before commencing his arguments proposed the substantial questions of law since an appeal against the order of remand had to be treated like a Second Appeal under Section 100 of C.P.C. and substantial questions of law were necessitated to be framed in that regard. He proposed the following questions of law namely:a. Whether the learned Appellate Judge could have directed the issue of mundkarship to be referred to the Mamlatdar for adjudication in the absence of the necessary material ingredients in the written statement of the Defendant No.1 to effectively raise the issue of mundkarship?b. Whether the Defendant No.1 being a married daughter of an alleged Mundkar could even prima facie sustain a claim of mundkarship contrary to the Mundkar Act?c) Whether the scope of the present suit was the legal validity of the right created under the agreement by the mother of the Plaintiff without the consent of the plaintiff who was the co-owner and in such circumstances the issue of mundkarship did not arise?d) Whether the pleadings of the Defendant presupposed the existence of mundkarial right and did call upon the Court to seek a declaration of mundkarship and therefore the need to refer any issue to Mamlatdar did not arise?There was every reason to interfere with the judgment of the Appellate Court and therefore the appeal had to be allowed.7. Shri C. A. Coutinho learned Advocate for the respondent no.1 – defendant no.1 adverted to the reliefs claimed in the suit and submitted that it was one basically for eviction. He adverted to the pleadings and submitted that the defendant had been residing in the said premises since the last more than 70 years which would take it well before 1975 and therefore no question of any consent arose and the ingredients of mundkarship were amply made out. The trial Court had duly framed the issue and it was conscious of the plea of the mundkarship raised by the defendants. The plea of mundkarship was well within the knowledge of the appellant and it was not open to challenge the same on the premise that the Appellate Court went off at a tangent in deciding the case. The judgment in Thomas Antony (supra) was clearly distinguishable and did not apply to the case at hand. He also distinguished the judgment in Thomas Antony (supra) and placed reliance in Ana Paxedes da Piedade Pinto @ Anita Pinto V/s. Joaquim Filipe Afonso @ Felix Afonso and others [2006(5) BomCR 51] Bhagwati Prasad v/s. Chandramaul [1966 0 AIR SC 735] and Bhim Sing (dead) by L.R.s and Another v/s. Kan Singh [1980 0 AIR (SCC) 727].8. Shri J.J. Mulgaonkar learned Advocate for the appellant contended that he had taken other grounds for the appeal but there were no findings rendered by the Appellate Court. The defendant presupposed that he was a mundkar and no declaration was sought to be issued by the Mamlatdar. It was incumbent on the Appellate Court to give its answer on all the issues. He further relied in Sadanand Vithal Naik and others v/s. Rashmi Dinesh Naik and others [2010 (4) BCR 688] which had referred to the judgment in Thomas Antony(supra). The respondents by the impugned Order has only opened up another innings to prove their case. The impugned Order is therefore to be set aside and the appeal had to be heard on merits.9. The appellant as the original plaintiff had carved a case simplicitor that the suit property originally belonged to Francisco Dias who dies a bachelor on or about 17/09/1935 without leaving any ascendents or descendents and that by a testamentary disposition by way of a Public Will he had constituted the late Emerciano Lucio Francisco Leanardo Dias as the sole heir in respect of the suit property. The plaintiff was one of the two sons of the said Emerciano Lucio Francisco Leanardo Dias while the defendant no.2 since deceased was the widow. He further set out a case that the old mud walled structure was existing in the eastern half of the suit property and that the mother of the defendant no.1 was permitted to reside temporarily in the said premises 20 years back since she was employed as a domestic maid with the respondent no.2. The mother of the defendant no.1 namely Maria Anton D'silva ceased to reside therein since the employment was terminated or otherwise ceased.10. The appellant had further carved a case that in the first week of March in the year 1997 he learnt that the defendant no.1 had entered into an agreement with his aged mother i.e. defendant no.2 purportedly agreeing to purchase 300 sq.mtrs. on which the said premises were situated and the land appurtenant thereto and addressed a letter warning her about the true legal position concerning the ownership of the land and to desist from either purchasing or constructing on any portion of the suit property. He had been taken by surprise during his visit to the suit property in the last fort night to find that the old premises had been actually demolished and a new construction started on the site by the defendant no.1 with laterite stones without any right and interest in the suit property. He had also questioned the authority of his mother to dispose off any portion of the suit property or any undivided interest therein to any stranger without his written consent and accordingly maintained the suit for injunction to restrain the first defendant from interfering with the suit property or making any construction thereon and to restrain his mother from alienating any portion of the suit property in favour of the defendant no.1 by purchase or otherwise.11. The defendant no.1 had carved a case that the mud house existing in the suit property belonged to her parent was owned by her late father for the last more than 70 years and registered in the Panchayat in his name. The house was later transferred in the name of her mother in the year 1975 and thereafter in her name in the year 1985 in which she was residing  as a mundkar. She had purchased an area of 300 sq.mtrs. from the defendant no.2 and paid the entire consideration to her. She had erected the new house after obtaining the necessary approval of the plans and licenses from the Panchayat and other statutory authorities and therefore the suit was not maintainable. A detailed reference is made to the pleadings since unlike the contentions of Shri Coutinho learned Advocate for the respondent no.1 the written statement contained very sketchy pleadings on the so called plea of mundkarship in respect of the house in the suit property. At one time she claimed that the house belonged to her parents and that it was owned by her late father for more than 70 years and on the other hand that she had purchased 300 sq.mtrs. from the defendant no.2 and paid the entire consideration to her. There is force in the contention of Shri J. J. Mulgaonkar learned Advocate for the appellant that these pleas raised on behalf of respondent no.1 – defendant were vague and did not meet the ingredients of mundkarship for an issue to be framed by the trial Court.12. Mitra of Archdiocese (supra) held that in the absence of the disclosure of all the ingredients of the definition of a Mundkar it cannot be said that the party has raised a plea of mundkarship and therefore there is no issue of mundkar while dealing with the petition challenging the order passed by the learned Additional District Judge Panaji but it allowed the amendment of the written statement. In the brief facts the petitioner being the original plaintiff had filed the suit for declaration that the respondents had no right of whatsoever nature to the suit house and that he was a trespasser and his eviction from the suit house on the premise that one Fernanda Amaral was allowed to reside in the suit house during her lifetime and who executed a declaration dated 04/02/1987 that the suit house was exclusively belonging to the petitioner she was occupying the same with their permission and that she would be entitled to take over possession on her death. The petitioner's representative went to the suit house to lock the same and found the respondent occupying the suit house who refused to leave. The respondent took a plea denying the case of the petitioner disputed the declaration executed by the late Fernanda as being fake and carved out a case that he had been residing in the suit house with Fernanda since 1975 with the consent and knowledge of the petitioner and that they had no right to evict him from the suit house. The trial Court had decreed the suit on the basis of the evidence produced on record which was challenged in appeal by the respondent–defendant and during its pendency he sought to amend the written statement to incorporate a plea that he was residing as a mundkar and that the Civil Court had no jurisdiction to try the suit with consequential amendments in the memo of appeal.13. In Mitra of Archdiocese (supra) the lower Appellate Court by the impugned order allowed the application for amendment and permitted the respondent to amend the written statement thereby allowing him to raise the plea of mundkarship. This order was assailed in the petition on the premise that the pleadings in the written statement did not contain the necessary ingredients of the plea of mundkarship that it was not only belated but was mutually destructive of the plea already raised in the original pleadings. It was contended on behalf of the respondent that the pleadings in the written statement clearly disclosed the basic ingredients of the plea of mundkarship inasmuch as the respondent had clearly stated that he had been residing in the suit house from 1975 with the consent and knowledge of the petitioner and taking into consideration a explanation clause of Section 2(p) of the Act.14. In Mitra of Archdiocese (supra) it was clear from the pleadings that the respondent had pleaded all the facts necessary for raising of his plea of mundkarship in the written statement though specifically not using the word mundkar therein. The learned Single Judge of this Court considered the expression mundkar and whom it encompassed within the said meaning and excluded a domestic servant or a chowkidar or a person residing in the outhouse or a house as a caretaker and observed that in the absence of the disclosure of all the ingredients of the definition of mundkar it cannot be said that the party has not raised the plea of mundkarship and mere reference to the year 1975 by itself could not be clear that the respondent had been residing prior to 12/03/1975 and dismissed the respondent's application for amendment of the written statement taking the plea of mundkarship.15. The learned Appellate Court had reproduced the issues framed by the trial Court in the judgment under challenge. The issue no.3 framed by the trial Court namely “Whether the defendant no.1 proves that in view of the mundkarship and dilapidated condition of house had to construct a new house on the same existing site of the old mud house after proving an area of 300 sq.mtrs?” presupposes that the trial Court proceeded on the premise that the respondent no.1 was a mundkar. It needs reckoning that the respondent no.1 had not at all sought a declaration of mundkarship and yet the learned Appellate Court remanded the matter to the trial Court with a direction to refer the issue of mundkarship to the Mamlatdar for adjudication. The learned Appellate Court without any rhyme or reason concluded that the issue of mundkarship was the main issue and could not have been decided by the Civil Court requiring a reference in terms of the Section 32 of the Mundkar Act without assigning any findings for such a hasty conclusion. The learned Appellate Court had erred in holding that the issue no.3 involves adjudication whether the defendant no.1 was a mundkar or not and Section 8A of the Mundkars (Protection from Eviction ) Act and Rules and hastily concluded that the Civil Court had no jurisdiction and the issue arose and was required to be referred to the Mamlatdar for adjudication.16. The learned Appellate Court was equally seized of the fact that a contention could arise when the respondent no.1 had not pleaded facts which would constitute the ingredients of the mundkarship as held in Mitra of Archdiocese (supra) and without much ado cast the burden on the plaintiff-appellant that he had admitted that the mother of the defendant no.1 was permitted to stay in the mud house and that the necessary ingredients of mundkarship were culled out from the pleadings of the plaintiff while at the same time being conscious of the fact that the defendant might not have given all the particulars which would not be of much significance.17. Thomas Anthony (supra) was the defendant's appeal filed by special leave where he assailed the judgment of the High Court of Kerala and the cross-objection filed therein confirming the judgment of the trial court decreeing the suit. The respondent had filed the suit for recovery of possession of the suit property on the strength of title and for mesne profits on the premise that he had got possession of the suit property on the basis of the decree in the suit on the file of the Munsiff's Court Alleppey. He had initially engaged one Chellapan to look after the cultivation of the property till 1972 and from 1973-75 he had engaged the services of the defendant to look after the cultivation work. The services of the defendant were terminated after the harvest of 1975. The defendant created an obstruction in his work when the plaintiff made preparations for cultivation in 1976 and then filed a suit before the Munsiff Court Alleppey for the stated reliefs. The defendant took possession of the property during the pendency of the suit without any manner of right title or interest and hence the relief of decree for possession and damages.18. In Thomas Anthony (supra) the defendant took a plea that Chellapan was cultivating the property till 1970 and thereafter the plaintiff leased out the suit property by an oral lease to him and he was in possession from 1971 and therefore a tenant in possession and entitled to remain in possession. The trial Court framed issues on the tenancy of the defendant to the suit property and referred the issue to the Land Tribunal for determination. The defendant had raised the contention before the trial Court that the lease as claimed by him was not a tenancy falling within the ambit of the Act as the lease was created after the promulgation of the Act and Section 74 of the Act prohibits the creation of future tenancy and therefore a reference under Section 125(3) of the Kerala Land Reforms Act 1963 was unnecessary. The trial Court further brushed aside the contention with the observation that whether such a lease was hit by Section 74 of the Act was immaterial as far as a reference under Section 125(3) was concerned.19. In Thomas Antony (supra) the Land Tribunal answered the issue of tenancy in favour of the defendant but the Trial Court did not accept the findings of the Tribunal on the premise that there was no allegation in the written statement that he was a tenant entitled to the benefit of Act No.l of 1964 and therefore the question that would arise was whether the defendant was an agricultural lessee as per the provisions of the Transfer of Property Act. The trial Court took note of Section 74 of the Act which prohibits the creation of a future tenancy and held that since his case was that the alleged lease was created after the commencement of the Act i.e. in 1970 the lease was definitely hit by Section 74 of the Land Reforms Act and ultimately the trial Court decreed the suit with costs and a direction to the defendant to surrender the possession of the suit property to the plaintiff and consequentially entitling the plaintiff to the mesne profit. The defendant took the matter in appeal to the High Court which held that as a specific lease had been set up by the defendant and that had not been proved the trial Court was justified in holding that the plaintiff was entitled to recover the property from the defendant. Alternatively the High Court held that even assuming that there was a lease as contended by the defendant it was barred in law in view of Section 74 of the Act which barred the creation of future tenancies.20. In Thomas Antony (supra) it was held that the trial Court had no jurisdiction to record a finding contrary to that recorded by the Land Tribunal and therefore the finding of the trial Court that he was not the lessee of the suit land was incompetent and unsustainable and therefore it ought to have dismissed the suit. It was also contended that the High Court had erred in confirming the judgment based on such illegal finding. It was contended on behalf of the respondent-plaintiff that in view of the statutory bar against the creation of any tenancy under Section 74 of the Act the position was inescapable that the alleged tenancy set up by the dependent created in 1971 had been rightly rejected by the Courts below. Their Lordships observed that on a consideration of the provisions of the Act i.e. Sections 74 and 125 of the Kerala Land Reforms Act the statutory scheme was clear that when a question of the status of a person as a tenant arose in any suit or proceeding before a civil Court that Court shall refer the matter to the Land Tribunal for a decision on that question only and on receipt of the decision of the Tribunal on the question the trial Court shall decide the suit or proceeding accepting the decision of the Tribunal on the question referred to it. However while making a reference to the Tribunal mandatory the legislature could be said to have intended that even a patently frivolous malafide and illegal plea of tenancy taken by a party merely to delay the proceeding and to remain in possession of the property had also to be referred to the Tribunal.21. In Thomas Anthony (supra) Their Lordships held that the statutory provisions in their considered view envisaged a case where a bonafide and legally sustainable plea of tenancy is taken by the party and that question shall be referred to the Tribunal. In the ultimate Their Lordships found that the claim of tenancy since 1971 set up by the defendant being against the statutory bar was invalid and that in the facts and circumstances of the case and in view of the legal possession the Courts below had rightly decreed the suit and no interference was warranted in exercising its jurisdiction under Article 136 of the Constitution. This judgment too holds that the reference of a issue cannot be on a patently frivolous malafide and illegal plea of tenancy taken by a party merely to delay the proceedings and to remain in possession of the property. It is only where a bonafide and legally sustainable plea of tenancy is taken by the party that the question shall be referred to the Tribunal. Therefore on a conjoint reading of the pleadings and the judgment in Mitra of Archdiocese and Thomas Antony (supra) the Appellate Court could not have framed a issue and further compounded the matter by referring it to the Mamlatdar for determination.22. i am fortified in this contention brushing aside the submission of Shri Coutinho learned Advocate for the respondent that his plea of mundkarship was well founded on the premise that he had been a resident for more than 70 years in the suit premises. At the cost of repetition the plaintiff had clearly stated that the old mud walled structure belonged to them and that the mother of the defendant no1 had been permitted to reside temporarily in the said premises since she was employed as a domestic maid with the defendant no.2 and that she would ceased to stay therein on the termination of her employment or otherwise. The defendant had sketchily pleaded that the house belonged to the parents of the defendant no.1 it was owned by her late father for the last more than 70 years which was transferred in the name of her mother in 1975 and thereafter in her name in 1985. These pleadings as read by the learned Appellate Court with those of the plaintiff could never have weighed with the Appellate Court to conclude that the plea of mundkarship was well founded and necessitated a reference to the Mamlatdar.23. Shri Coutinho learned Advocate for the respondent also urged that this issue was within the knowledge of the appellants and therefore adverting to ground 'c' of the appeal memo it was not open to the appellant to challenge the same on the premise that the Appellate Court went off at a tangent. i have earlier discussed the issue no.3 as framed by the trial Court and understood by the Appellate Court and that there was nothing amiss in the contention of Shri Mulgaonkar learned Advocate for the appellant on a construction thereof that the Appellate Court had gone off at a tangent to refer the issue to the Mamlatdar for determination particularly when the issue by itself proceeded on the assumption that the defendant was a mundkar. The import of the issue was completely lost on the Appellate Court when it made the reference as it did. Therefore there is also no basis in the contention of Shri Coutinho that the judgment in Anthony Thomas (supra) is distinguishable and or not applicable to the case at hand.24. In Bhagwati Prasad (supra) it was observed by their Lordships that it was not open to the party to attempt to sustain the same claim on a ground which was entirely new and not covered in the earlier pleadings. These were two cross appeals arising from the suit filed by Chanmdramaul against Bagawati Prasad in the Court of Second Civil Judge Kanpur. The plaintiff alleged that he was the owner of the house No.59/8 which he had let out to the defendant as his tenant being friends and enjoyed mutual confidence. As the house was being constructed the defendant wanted some premises for residence and so when the ground floor was constructed he was let in as a tenant by the plaintiff on a monthly rent. On completion of the first floor the defendant took that portion as well as a tenant on an additional rent and on construction of yet another floor the defendant took possession on a further additional rent and thus he was in possession of the house as tenant on the condition that he was to pay ₹450p.m. as rent. However on his failure to pay the rent the plaintiff terminated his tenancy and brought the present suit for claiming ejectment against the defendant and a decree for arrears of rent and future mesne profits.25. In Bhagwati Prasad (supra) the defendant admitted that the land over which the house stood belonged to the plaintiff who took a plea that he had constructed the house at his own cost at the request of the plaintiff who had no funds to construct the building on his own and that having constructed the house at his own cost he came into possession of the house on condition that he would continue to occupy the house until the amount spent by him on the construction was repaid to him by the plaintiff. Basing himself on this agreement he resisted the suit for ejectment as well as for rent. The trial Judge framed seven issues disbelieved the defendant's version in regard to the construction of the house and the plea that he had spent the money on the construction of the house himself as not being established and at the same time disbelieved the plaintiff's case about the agreement as to rent on which the plaintiff relied. He came to the conclusion that the relationship of the landlord and tenant had been proved entitling the plaintiff to a decree for ejectment as well as for rent.26. In Bhagwati Prasad (supra) the defendant preferred an appeal before the Allahabad High Court which had agreed with the trial Court in disbelieving the defendant's version about the construction of the house and about the terms and conditions on which he had been let into possession. It was also not satisfied with the plaintiff's version about the tenancy between him and the defendant. However having regard to the fact that the defendant had virtually admitted the title of the plaintiff the High Court held that the defendant must be deemed to have been in possession of the house as a licensee and treating the plaintiff's claim of the decree for ejectment on the basis that the defendant was proved to be a licensee of the premises confirmed the decree passed by the trial Court. It had however set aside the decree insofar as it directed the defendant to pay the past rent. In that backdrop it was held by the Four Judge Bench of the Hon'ble Apex Court that considerations of form cannot override the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by the evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched though indirectly or even obscurely in the issue and evidence has been led about them then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case.27. In Bhagwati Prasad (supra) Their Lordships of the Apex Court held that what the Court has to consider in dealing with such an objection is; did the parties know that the matter in question was involved in the trial and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and had no opportunity to lead evidence would introduce considerations of prejudice and in doing justice to one party the Court cannot do injustice to another. This judgment therefore is clearly distinguishable and cannot substantiate the contention of Shri Coutinho learned Advocate for the respondent about the plea being raised by the respondent pertaining to the house in question and that there was no infirmity in the order passed by the learned First Appellate Court. The judgment in Bhim Singh (dead) by L.R.'s (supra) which relied on the judgment in Bhagwati Prasad (supra) also does not support the contention of Shri Coutinho learned Advocate for the respondent in the same context.28. The appellant / plaintiff had not only disputed the issue of mundkarship to challenge the decree in appeal by setting out that the pleadings were cryptic and not sufficient to frame the issue of mundkarship but it also raised other ground to challenge the impugned judgment on the premise that the learned First Appellate Court had failed to consider that the plea of mundkarship raised by the respondent no.1 was untenable being a married daughter and excluded from the right of inheritance of mundkarship by that very nature. The plaintiff for that matter had also raised the ground that no issue of mundkarship was framed either by the trial Court or by the First Appellate Court and therefore no direction could have been issued to refer the matter to the Mamlatdar. Besides the learned Appellate Court was impressed and fixated on the issue of mundkarship and hastened to consider Section 8A of the Mundkars (Protection from Eviction) Act and Rules and Sections 31 and 32 thereof and on that premise ignoring the law laid down in Mitra of Archdiocese(supra) proceeded to refer the issue of mundkarship to the Mamlatdar for adjudication ignoring also the fact that the respondent no.1/defendant no.1 was the married daughter assuming without admitting that such an issue at all arose for consideration before her.29. The learned Appellate Court for reasons best within her knowledge did not address herself to the pleadings of the parties and though she reproduced all the issues framed by the trial Court the learned Appellate Court failed to assign reasons on any of the issues except one arising for consideration and short circuited the matter by referring it to the Mamlatdar. The learned Appellate Court on account of her failing to address herself to the matter at large provided another innings to the respondent/defendant to prove her case despite the fact that there was no proper plea of mundkarship raised by her and which she could otherwise not pursue being the married daughter. In the circumstances therefore i answer the substantial questions formulated for determination at sr.no.1 in the negative and point no.2 i.e. original question 'C' in the affirmative. i therefore pass the following:ORDERThe appeal is allowed whereby the impugned judgment and decree is quashed and set aside and the matter remanded to the learned First Appellate Court to hear the case afresh and decide the appeal appropriately in which the parties are directed to appear before the First Appellate Court on 23/09/2016 at 10.00 hours. All the issues and contentions are left open to be canvassed before the First Appellate Court without being influenced by the observations made by this Court.