w w w . L a w y e r S e r v i c e s . i n

Bhaguirati Narayan Borkar and another v/s Ema Lima Cota Furtado and others

    Decided On, 20 January 1992
    At, In the High Court of Bombay at Goa
    S.G. Dessai, for the appellants. M.B. D'Costa, for respondent No. 1 to 3.

Judgment Text

This Letters Patent Appeal arises out of the Order of the learned Single Judge of this Court dated 29-8-1989 which rejected in limine the Writ Petition No. 295 of 1989 filed by the appellants against the respondents under Articles 226 and 227 of the Constitution seeking for a writ of certiorari of any other writ, direction or order in the nature of certiorari to quash and set aside the Orders dated 30-9-80, 21-8-91 and 27-2-89 of the respondents No. 4, 5 and 6 respectively.

2.The appellant No. 1 is the mother of the appellant No. 2 and of the respondent No. 7 and the respondent No. 8 is the wife of respondent No. 7. The case of the appellants is that there exists a property known as "Tolcai Zor" situated at Aquem, Margao bearing Land Registration No. 35625 and enrolled in the Land Revenue Office under No. 1146 and No. 859. The said property was belonging originally to one Ana Joaquina Elizinha De Sa and her husband Anastasio Justiano De Saude Furtado. By Sale Deed dated 8-9-1955 the late husband of the respondent No. 1 purchased the said property from the said Ana who was his step-mother. Therefore, even after the purchase Ana continued looking after the property since the respondent No. 1 and her late husband were staying in Africa for several years on account of the respondent No. 1's husband's work before they came down to Goa sometime in the year 1968. In the said property there exists a mundkarial house which was constructed by the appellants somewhere in the year 1959/60 with the permission of Ana. After the return of the respondent No. 1 and her husband from Africa they wanted them to leave the house but, however the appellant No. 1 has been residing therein along with her children namely, the appellant No. 2 and the respondent No. 7. The respondent No. 8 came to occupy the mundkarial house only after her marriage with respondent No. 7. The property was a barren land excepting an old residential house and since the time the appellant No. 1 started living in the property she planted various trees around the mundkarial house and is in occupation and enjoyment of not only the house but of an area around the same to the extent of about 440 sq. meters including the house. The said Ana was looking after the property until 1968. After their return Africa in 1968 the respondent No. 1 and her late husband were harassing the appellants in order to make them vacate the mundkarial house. They then filed a suit against one Jairam Bikaji Rao, bearing Civil Suit No. 193 of 71, before the Civil Judge, Margao to evict him from the main house wherein he was living and a decree was passed against Jairam on 19-8-75 after which he vacated the said house. Therefore, since the respondent No. 1 and her late husband were pressurising the appellants to vacate the mundkarial house the appellant No. 1 filed a mundkar application on or about 1972 before the Mamlatdar of Margao seeking a declaration, under section 10 of the Mundkar Act, 1971, that she was a mundkar of the house constructed by her in 1959/60. During the pendency of this proceedings the husband of respondent No. 1 died on 9-12-1972 but the appellant moved an application before the Mamlatdar only on the fortieth day i.e. on 19-1-1973 to bring the heirs of the deceased on record. The respondent No. 1 objected to this application saying that it was time barred and the proceedings were abated. It appears that under section 11 of the Goa, Daman and Diu (Protection from Eviction of Mundkars, Agricultural Labourers and Village Artisans) Act, 1971 (hereinafter called the Act of 1971) the application was to be made in terms of section 17 of the Mamlatdar's Court Act, 1976. Hence the application was ultimately dismissed as abated by Order dated 17-7-73 where the Mamlatdar upheld the objection of the respondents without going into the merits of the application. Sometime thereafter, in the year 1975 the respondents No. 1, 2 and 3 filed a Civil Suit No. 97 of 75 seeking for the eviction of the appellants from the suit house as trespassers. In this suit the appellants raised the issue of mundkarship and contended that they could not be evicted as such. The said suit went up to the stage of issues and on 22-12-75 i.e., prior to the enforcement of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called the Act of 1975) one issue bearing Issue No. 9 was framed as under : -

"Whether the defendants prove that this Court has no jurisdiction because they are agricultural labourers, artisans and mundkars of the suit property".

By order dated 24-11-76 i.e., after the new Act came into force the said issue was decided in favour of the respondents No. 1, 2 and 3 (hereinafter called the respondents) in the sense that the Civil Court held that it was having jurisdiction to entertain the suit. Against the said decision the appellant filed a Revision Application before the Court of the Judicial Commissioner, Panaji, which was registered under No. 12 of 1977 and disposed by Order dated 22-11-1978. In the said Order the Judicial Commissioner while allowing the revision set aside the order of the trial Court but held that since the application filed by the appellant No. 1 had been decided and already rejected she was not entitled to raise the question of her mundkarship again before the Mamlatdar. However as far as the appellant No. 2 and respondent No. 7 and 8 there was no bar of res judicata and their claim of mundkarship had not been decided. Therefore they could raise the claim of mundkarship under the new Act of 1975 and section 13 of the Act would be attracted. The Judicial Commissioner accordingly directed that the Civil Judge should transfer the case to the Court of the competent Mamlatdar for determination of the issue of mundkarship. Consequent upon this transfer the Mamlatdar took up fresh proceedings and allowed both the parties to lead evidence after which by order dated 30-9-80 held that the appellants were not mundkars of the suit house. The appellants filed an appeal against this order before the Collector which was, however, dismissed by judgment dated 21-8-81. A revision to the Administrative Tribunal met with the same fate and the same was ultimately rejected by judgment dated 27-2-89. The appellants then approached this court with the Writ petition wherein the impugned order of the Single Judge was passed rejecting the relief sought for on the grounds recorded in the aforesaid order.

3.Shri S.G. Desai, learned Counsel for the appellants, vehemently contended that the impugned order which is mainly based on the judgment of the Judicial Commissioner holding that the appellant No. 1 was precluded from raising again the question of her alleged mundkarship and therefore the courts below while dismissing her case on the same ground did not commit any error of jurisdiction is manifestly illegal. The learned Counsel urged that admittedly the order of the Mamlatdar dated 17-7-1973 in Mundkar Case No. 16 of 1972 whereby the appellant No. 1's application for protection was dismissed as abated in view of section 17(3) of the Act of 1971 had not adjudicated her prayer on merits and thus the Judicial Commissioner could not hold that the claim of the appellants to mundkarship was already decided and rejected. In fact there was no rejection of the claim as such but only an abatement of the proceedings. The finding given by the Judicial Commissioner was therefore wrong and rendering his judgment a nullity as a result whereof all the subsequent orders of the Revenue Authorities as well as the impugned order of the learned Single Judge became also vitiated and a non est.

4.There is considerable merit in this submission of Shri Dessai with this regard. Inasmuch as the Judicial Commissioner totally overlooked that the fact of the abatement of the appellant's application for protection under section 10 of the Act of 1971 did not mean that the same was adjudicated on its merits, there was no question of any obstacle or the principles of res judicata coming in the way of a fresh application for adjudication of the appellant No. 1's claim of mundkarship under the new Act of 1975.

5.It is true that Mr. B.D'Costa, learned Counsel for the respondents, pointed out that the Judicial Commissioner although making the aforesaid observations in his judgment was not obvious of the existence of the new Act and has ordered the transfer of the case to the Mamlatdar to decide the claim for mundkarship of the remaining appellants No. 2, 3 and 4 if any and consequently the Mamlatdar on receipt of the proceedings from the Civil Court had examined the issue in relation to all the appellants including the appellant No. 1 ultimately holding that none of them were mundkars of the respondent's property. Shri D'Costa drew our attention to the order of the mamlatdar dated 30-9-1980 wherein before discussing the evidence of the parties the following observations are recorded : -

"The Honourable Judicial Commissioner by his order dated 22nd November, 1978 held that the first defendant could not raise the issue of mundcarship but the remaining defendants can and thus sent the suit for decision of mundcarship under section 13 of the Goa, Daman and Diu Mundcar Act.

By the letter dated 14th December, 1978, the learned Civil Judge in pursuance of section 13 of the Goa, Daman and Diu Mundcar (Protection from Eviction) Act, 1975, and in accordance with the judgment of the Honourable Judicial Commissioner Court, Panaji, dated 22-11-1978 sent the Suit No. 97 of 1975 instituted by Ema Lima Furtado from Navelim against Baguiroti Borcar for the decision whether the defendants are mundcars. (Emphasis supplied).

After the receipt of the file notice, were issued to the defendants Smt. Baguiroti Naraina Borcar (emphasis supplied), Krishna Naraina Borcar, Laxmi Krishna Borkar and Ramdas Naraina Borkar and the plaintiff Ema Lima Furtado to file their respective claims. The parties did not file any claims, thus the matter was fixed for recording of evidence of the opponents that is the defendants".

This shows, according to the learned Counsel, that the finding of the Judicial Commissioner and the direction given by him in his judgment dated 22-11-78 has not very much affected the Mamlatdar and was thus not strictly adhered by him as a result whereof he again reopened the entire case in relation to all the appellants in the light of the principles and the wider scope of the definition of the concept of mundkarship in the Act of 1975. However, Shri Dessai joined issue on this point by insisting that the Mamlatdar has not done so and instead the order reveals that no specific findings were given by him on the required aspects under the new Act. The learned Counsel urged that not only the Mamlatdar but also the Collector and the Administrative Tribunal were ultimately impressed by the Judicial Commissioner's view that the appellant No. 1's claim of mundarship had been finally settled by the Mamlatdar in his earlier order dated 17th July, 1973 and therefore the claim of the remaining appellants was negatived by all of them on the ground that the appellant No. 1 was not to be declared as mundkar.

6.We are satisfied that the wrong finding recorded by the Judicial Commissioner in his judgment dated 22-11-78 might have had a telling effect on the subsequent orders as contended by Mr. Dessai if the Mamlatdar had complied with the letter and the spirit of the directions given in the said judgment. We have gone through the order of the Mamlatdar which appears to be somehow vague and it cannot be said as having either thoroughly discussed the evidence or elaborately dealt with the legal requirements to be looked into the appellants' application to be declared as mundkars as per the principles of the Act of 1975. We are therefore of the opinion that subsequent upon this failure on his part to strictly adhere to the new law the said order as well as the consequential judgments of the Collector, and of the Administrative Tribunal and by implication the impugned order of the Single Judge are to be set aside and the matter to be remanded back to the Mamlatdar for a fresh reconsideration of the appellants' application in the light of the relevant provisions of the new Act of 1975.

7.In order to cut short the controversy and narrow down the scope of the bearing of this appeal we inquired from the learned Counsels as to whether irrespective of the merits of their conflicting contentions they were agreeable to the suggestion that the whole matter should be examined afresh by us strictly on the basis of the evidence recorded by the Mamlatdar after the case was transferred to him consequent upon the order of the Judicial Commissioner so that we could be in a position to reappraise the entire evidence and find out whether the appellants' claim of mundkarship had or not been actually adjudicated according to the principles enumerated in the aforesaid Act of 1975.

8.In view of the consent taken from both the learned Counsels with the help of Mr. Dessai we scanned in detail the evidence produced by the parties and we are of the firm view that the learned Mamlatdar was justified in his conclusion that the material available on record is totally insufficient to substantiate the appellants' prayer that they should be declared as mundkars of the suit house.

9.In this regard the appellant No. 1's case that the house was constructed and occupation by her sometime in the year 1958-59 with the permission of the previous landlady Furtado was rightly disbelieved by the Mamlatdar on account of various inconsistencies and contradictions which were pointed out to us by Mr. B. D'Costa. According to the appellant No. 1 Baguirati, who gave her deposition before the Mamlatdar on 10-4-1971, she was staying in the suit house for the last 22 years as a mundkar and the house was put up by her at her cost. It was the landlady from Betalbatin who permitted her to occupy the suit house. At the beginning she used to take meals to a teacher by name Raut who was residing in a house situated in the same property in front of the suit house. She met the landlady when she came to the property and the showed her a space at the rear side of Raut's house and told her to occupy the same for her residence and also asked her to prepare the land in the property for cultivation of the portion by the side of the house. The land before her dwelling house was built was a barren land with rocks and she spent about Rs. 1500/- in preparing the land for cultivation. She has cultivated and grown fruit-bearing trees, namely, anthers, guava, ambaddo, mango and five teak trees and two cashew as well as toranj trees in the plot. There were also two drumstick trees which were all being enjoyed by her and her family. She used to pay Rs. 10/- annually to the landlady Furtado who was collecting that amount after Diwali occasion. However, when the present landlady came about 10 years back she asked her to vacate the house and picked up quarrels with her as she was not prepared to comply with her demands. Because she had invested money to raise the plantation and built the dwelling house she refused to vacate the property. In cross-examination she said that in the suit property there was a big residential house of the respondents with a compound wall around. Within the compound wall there was a well and a W.C. She denied that there was also a hut behind the residential house of the respondents and within the compound wall. She also denied that the said hut was being used as a cowshed. In further cross she admitted that she was knowing Jairam Bicaji Raut and that she was working at his place cooking for him and doing also other work. The said Raut was residing at the rear side of the residential house of the respondents. Before she started residing in the suit house she had worked as a cook for Raut for five years and during these five years she was staying at Borda near the residence of a barber by name Gaja. She lived there for about two months and thereafter stayed two years in the house of one Rassoikar at Aquem, one year in the house of her sister at Dongrim, one year at Cortalim at her brother's place and for ten months she stayed with Raut in the same room occupied by him. The conversation between her and the landlady Furtado took place in the room occupied by Raut about 22 years back and at that time she was staying with Raut, along with two children being one 8 years old and the order about 10 years old. She had engaged four labourers employed by her for two months to break the rocks and clear the land. They removed the rocks and built a stone fence. The fence was built at the request of the landlady Furtado. There were four rocks which were broken and the ground was levelled. The rocks were about 1.5 metres long, 1 metre broad and 1 metre high. The two months period included the time to do the work of digging and preparing for cultivation. Twenty two year ago she paid Rs. 5/- for labourer per day. A little later to another question, contradicting her earlier say, she admitted that it was Ema Furtado, the respondent No. 1, who built the stone fence for compound wall around the plot with rubble stones. The said compound wall was stone fenced in the land of Ema Furtado even before she came there and the same fence of compound wall is still in the same state as it was prior to her coming to reside in the said plot since no alterations have been made. When pointed out to her that in her affidavit dated 5-9-1977 in Civil Suit No. 190 of 77 before the Civil Judge, Junior Division, Margao, she had denied that she had been employed as a cook by Jairam Raut and that she did not know any person by the said name she said that she never made such statement inspite of the affidavit having been shown to her and produced on record.

10.In support of the appellants' case the evidence of P.W. 2 Krishnanath Shirodkar was also recorded and in his deposition he stated that he knows Bhaguirati who is residing in the suit house for the last 20 to 22 years. The said house was already there about 20 to 22 years back. However, he again said that the same house was built by Bhaguirati. There was another house in front of the suit house wherein a teacher was staying and he does not know his name. Bhaguirati used to work as agricultural labourer and her son Krishna was also an agricultural labourer while another son was a carpenter. In cross-examination he said that the teacher was residing in a room at the back side of the house situated in front of the house where Bhaguirati was living. Bhaguirati did not reside with the teacher even for a single day. At the time Bhaguirati entered the suit house he was going there to pick up her son, namely, the elder son for work and he was taking him for ploughing the fields. He came to know Bhaguirati's son because he saw him going to the paddy field of one Sodhu Borkar near the Chowgule College with the spade. He asked him whether he would be willing to work for him and that he would pay him Rs. 8/- per day. He does not know whether 22 years back the son of Bhaguirati was 8 years old. He stated that, about 22 years ago when Bhaguirati entered the suit house, her son was 20 to 22 years of age. His first acquaintance with Bhaguirati's elder son was when he was going to work with spade. It was only thereafter that for the first time he went to the house where Bhaguirati is now residing. When confronted with the question that in this case at no point of time he could see Bhaguirati building the house he answered that he knew Bhaguirathi already before that even prior to Bhaguirathi started residing in the suit house.

11.The second witness for the appellants is P.W. 3 Mariano Andrade and he deposed that he knows the appellant No. 1 and also her sons who are residing in the suit house for the last 22 years. There is also another house belonging to the owners in front of the suit house where in one Master was living and earlier was being occupied by some "Paclos". In cross-examination he said that the appellant Bhaguirati at no point of time stayed with the Mastor in the house situated in front of the suit house. He also denied that Bhaguirati was staying with the said Mastor and cooking for him as his cook. On further cross he stated that there was a wall surrounding the said plot before.

12.Against this evidence the respondents set out their case in the deposition of the respondent No. 1 Ema Furtado. She has stated that she purchased the suit property in the year 1955 and when she acquired the property there was a big residential house therein behind which there was a cowshed, a well and a toilet. The property was surrounded by loose stone compound wall. She had let out the big house to a Portuguese family who was paying a monthly rent of Rs. 30/-. Her brother Antonio Mariano Cotta was collecting the rent and was looking after the property during her absence. Besides collecting the rent he was also taking a labourer to do the work in the compound. He planted several trees. After the liberation of Goa, the Portuguese family left without informing them. Taking advantage of this fact one Raut occupied the big house after 1961. Her brother asked him to leave but he refused. In 1968 they came down to Goa for good and when they found that Raut was still occupying the house they asked him to leave the place and again he refused. In 1971 they insisted once again with Raut to leave the house and then he vacated the house with the exception of the kitchen wherein he continued to reside with Bhaguirati. She stayed there with him for about ten months. At that time she was keeping wood and some things in the cowshed. In 1971 they filed a civil suit against Raut for eviction but after the suit was filed Bhaguirati started staying in the cowshed. The suit was decided against Raut and then he vacated the house. In 1972 Bhaguirati filed a mundkar case in the Mamlatdar's Court claiming that she was a mundkar. The case was dismissed by the Mamlatdar. Thereafter they sent a notice to Bhaguirati calling upon her to vacate and since she did not vacate, a civil suit was filed against her. Without their consent Bhaguirati started staying in the cowshed. In cross-examination she said that the first time she saw Bhaguirati saying with Raut in the Kitchen of the main house this was in 1971. At that time she along with her two sons were also staying in the said Kitchen. She also denied the suggestion that Raut had been kept in the main house as guard to watch the said house because there were thefts around the area. Again the respondent No. 2 Antonio Mariano Cotta has deposed that the suit property belonging to the respondents was being looked by him at the request of his sister. In the year 1955 there was in the property one big house where a Portuguese family used to stay, one cowshed were there, a she buffalo and a calf. There was also a loose stone wall surrounding the plot. The Portuguese family was staying on rent. He used to spend the rent for the work done in the compound as he had to pay the labourers. He used to spend the money for the repairs of the loose stone wall of the compound, painting trees and taking care of the existing trees. In 1961 the Portuguese family abandon the house and thereafter the same was occupied by him without authorisation and though he requested him to vacate his house he refused. He therefore informed his sister. The said Hindu gentleman was subsequently evicted after the return of his sister from Africa. On further questioning he said that he was not aware whether Bhaguirati was paying annual rent of Rs. 10/- as ground rent towards the occupation of the suit property. He further said that he did not known who was Bhaguirati and he only saw such person when he was managing the property. Bhaguirati never cultivated nahnim or paddy in the morod portion of the property neither did she plaint nor grow trees at her own cost in the said property.

13.Lastly respondent No. 3 Remedies Fernandes has stated that he knows that suit property where he was taken to carry on agricultural work by the brother of the landlady Ema Furtado since about 25 years ago. In the property there was a residential house, a cowshed, a W.C. and a well besides some trees. A Portuguese family was staying in the said house. In the cowshed there was a she buffaloes and a cow. His work was to repair the Compound wall, plant trees and cut grass. The Portuguese family abandoned the house in 1961 and thereafter one Hindu gentlemen occupied the same. He does not know who brought him to stay there. The said cowshed was not occupied by any human being till the date he stopped going to the said property. He said that after liberation one `konkoni' was staying in the cowshed.

14.Form an overall assessment of this evidence we are of the opinion that the appellants have miserably failed to make out a substantial and conclusive cause that they started occupying the suit house right from 1959/60 with the landladys's consent and/or raised the structure wherein they are presently residing. On the contrary the evidence on record strongly suggests that this occupation occurred in or about 1971 only and this also when legal proceedings were instituted against one Raut who had unauthorisedly trespassed into the residential house of the respondents situated in the same property and which was lying vacant after one European family to whom it had been leased abandoned the house at the time of liberation of Goa, by taking advantage of the absence of its legitimate owners who was at the relevant time outside the country. The same evidence evidence shows that the appellant No. 1 was working for the said Raut as his cook staying along with him in the said house. On her own admission it flows that the appellant No. 1 has expressly acknowledged her having cohabited with Raut in the same room for about ten month. It seems that when later on the respondents were compelled to file a suit against Raut on account of his persistent refusal to vacate the residential house the appellants shifted their residence to a cowshed existing at the back side of the main house without the landlady's consent wherein she otherwise used earlier to store some fire wood during their absence in Africa and immediately moved the concerned Mamlatdar seeking for a declaration that she was occupying the same as mundkar. However, we have already mentioned as to how this application came to be dismissed as abated and the remaining sequence of events which followed need not be repeated here again. Suffice is to say that the evidence as it stands cannot be said to be conductive to the conclusion that at some point of time consent or permission was given by the owners of the suit property to any of the appellants for occupying the structure allegedly existing therein in the original form of an old cowshed or to erect a new structure as contended by the said appellants.

15.In this regard Shri Dessai's submissions that there is no material (including the appellant No. 1's so called admission) that she was living with Raut in the same house, that there is also no evidence that she was a regular cook for Raut, that the totality of the evidence shows that she stayed with Raut and that there is nothing to say that her evidence should be discarded as entirely false are neither sound nor to be accepted. Indeed here is a case wherein both the parties were not able to produce any documentary evidence and only oral evidence was relied upon by them. Hence the matter was to be decided on the basis of the principle of preponderance of probabilities. Further if it is true that one wrong statement of a witness does not render his entire testimony false and that as it was observed in the case of Keshoram Bora v. The State of Assam, A.I.R. 1978 S.C. 1096, relied by Shri Dessai the principle falsus in uno falsus in omnibus does not apply to criminal trials and it is the duty of the Court to disengage the truth from falsehood, to sift the grain from the chaff, the fact remains that in view of the factual position of the evidence scrutinised by us it is not permissible for Shri Dessai to contend that there are no material discrepancies therein which take the appellants out from the definition of the concept of mundkar.

16.It follows therefore, that in view of the obvious failure of the appellants to substantiate the existence of any of the legal requirements included in the definition of the concept of mundkar as provided in section 2(p) of the Act of 1975, namely, (i) consent, (ii) residence, (iii) lawful and (iv) fixed habitation, we are not inclined to take the view that the said appellants have discharged the burden cast upon them to prove that they were mundkars in relation to the suit property.

17.As far as consent is concerned Mr. B. D'Costa has drawn our attention to the fact that, as per the own admission of the appellant No. 1, she was inducted into the property by the landlord Furtado from Betalbatim to take care of the house and the land. The learned Counsel therefore, submits that this clearly shows that the appellant No. 1 was a mere caretaker of the property which situation brings her and her children within the exception (iv) of section 2(p) of the Act. We have already assessed the merits of the evidence produced by the appellants in respect of their alleged lawful residence in the suit house or structure and given our finding on this point. Also with regard to the requirement of fixed habitation the record shows that the appellant No. 1 has clearly admitted having stayed for about 5 years in several places prior to her and her children moving to the suit house and started residing therein. In her deposition the appellant No. 1 refers to a conversation she had with Smt. Furtado in the room occupied by Raut about the consent given to her to construct the suit house adding that this talk took place about 22 years back. The appellant No. 1's deposition was recorded on 27-7-79 which means that the alleged talk she had with Smt. Furtado, if any, occurred sometime in the year 1957. Admittedly the house where Raut was living and from where he was evicted had been occupied by some Portuguese nationals till 1961 and only thereafter Raut could have shifted has residence to that house. Therefore the appellant No. 1's contention about the talk and consent of the landlady for constructing the suit house and setting her fixed habitation therein in or about 1957 does not and could not arise at all being therefore, to be summarily rejected as a bold and blatant lie. Shri Dessai's next submission is that once the respondents acknowledge the physical possession of the suit house by the appellants if not from 1968, when they returned from Africa and admittedly saw that the petitioner/appellant No. 1 was storing firewood in the cowshed, at least right from 1971 when the civil suit was filed against Raut with whom she was allegedly living in the same room of the kitchen of the main house, in case of the Court was not inclined to hold that the appellants' occupation of the suit house was with the respondent's permission and consent the said appellants were always availing of the benefit of the deeming provision contained in the explanation to section 2(p) of the Act. As per the said explanation a person shall be deemed to be lawfully residing with the consent of the Bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the Bhatkar has not initiated any proceeding during the said period of one year, to evict such person from the dwelling house, through a competent Court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person. This means, Shri Dessai urges, that in terms of this deeming consent contemplated in the Act of 1975 by the aforesaid explanation, considering the intention of the beneficial legislation enacted with the view of affording better protection to mundkars against eviction from their dwelling houses, even a trespasser is protected as on 12-3-1975. Shri Dessai submitted that in terms of the Act a trespasser having all the characteristics of a mundkar excepting the consent of the Bhatkar who is staying in the property as on 12-3-1975 for more than one year is protected provided there is no decree for eviction against him as on the date of the enforcement of the Act.

18.We are, however, afraid that it is not possible for us to subscribe such a proposition. A plain interpretation of the legal provision clearly suggests that the deeming provision regarding consent about the residence of a trespasser operates in two distinct situations, being one when a person resides in a dwelling house for a period of one year or more prior to the appointed date, i.e., 12-3-76 and the Bhatkar has not initiated any eviction proceedings against him on the ground that he is a trespasser and the other when having so initiated he has not been able to obtain a decree of eviction against him. Shri Dessai's contention that having regard to the spirit of the law a mere filing of a suit for eviction is not sufficient and to give a meaning to the beneficial legislation one must obtain a decree against the occupant of a dwelling house prior to 12-3-75, in other words, the person should stand evicted as on 12-3-75 is impermissible and deserves rejection. If that should be the interpretation of the enactment the same would be self defeating in respect of the second situation envisaged by the said Explanation. When the law provides that the suit can be field or proceedings instituted till one year prior to the appointed date it would be impossible to presume that these proceedings would be over till such date and if one expects that the decree for eviction was to be passed as on the appointed date the whole last part of the recital in the explanation would become meaningless. In the circumstances the only acceptable interpretation of this provision is to hold that it is sufficient to institute such proceedings against the alleged occupant/trespasser in the dwelling house either before or within one year prior to the appointed date and in that case such occupant can avail of the benefit of the deeming provision only if the landlord does not succeed in obtaining a decree for the eviction of that person.

19.The reliance placed by Mr. Dessai on some rulings of the Supreme Court, namely, Boya Ganganna and another v. State of Andhra Pradesh, A.I.R. 1976 S.C. 1541, State of U.P. v. Shanker, A.I.R. 1981 S.C. 897, and Narotam Singh v. State of Punjab and another, A.I.R. 1978 S.C. 1542, appear to take the appellant's case nowhere since none of them are to the point seem to be attracted in the case in question. In one case of Boys Ganganna and another, A.I.R. 1976 S.C. 1541, which refers to the trial of an accused charged for various criminal offences including of murder the Court observed that the minor contradictions are bound to appear when ignorant and illiterate women are giving evidence. Even in case of trained and educated persons, memory sometimes plays false and this would be much more so in case of ignorant and rustic women. It must also be remembered that the evidence given by a witness would very much depend upon his power of observation and it is possi

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ble that some aspects of an incident may be observed by one witness while they may not be witnessed by another though both are present at the scene of offence. It would not, therefore, be right to reject the testimony of such witnesses merely on the basis of minor contradictions. Similarly in the case of State of U.P. v. Shanker, A.I.R. 1981 S.C. 897, which also concerns the trial of criminal offences, the Court was of the view that in this country it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is tainted to the core, the falsehood and the truth being inextricably intertwined, that the Court should discard his evidence in to. Lastly in the case of Narotam Singh v. State of Punjab and another, A.I.R. 1978 S.C. 1542, the Court again while appreciating the evidence in a criminal trial held that discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. 20.Therefore, all these rulings, otherwise given on facts, apart from dealing with the evidence relating to cases wherein the finding of guilt or innocence was to be recorded and standards of its appreciation stands on a completely different footing, namely, that the guilt of the accused is to be established beyond any reasonable doubt and not as in civil matters wherein the approach to be taken is guided by the sole principle of preponderance of probabilities do not also apply special circumstances before us when this Court, after having minutely gone through the evidence on record, came to a clear conclusion that the appellants had not been able to prove their case against the respondents. 21.In the result we see no option other than to hold that the evidence brought home by the appellants before the Mamlatdar is irrelevant and not enough to substantiate their claim of mundkarship in respect of the suit house and therefore the finding which was given by him on this issue is perfectly correct and well conceived. This is without prejudice of the position earlier taken by us with regard to the aforesaid order of the Mamlatdar in view of the consent obtained from the learned Counsels for the parties to directly adjudicate the issue of mundkarship on the basis of the evidence recorded by the Mamlatdar in compliance with the directions of the Judicial Commissioner in his Order dated 22nd November, 1978. 22.We therefore, partially allow this appeal, quash and set aside the impugned order of the learned Single Judge of this Court as well as the earlier orders dated 30-9-80, 21-8-81 and 27-2-89 of the Mamlatdar in Case No. JM/MUND/2/79, of the Collector in Case No. PRM/AC/API/13/81 and of the Administrative Tribunal in Mundkar Revision Application No. 19 of 81 respectively. However, the net result of the appeal is that Issue No. 9 referred to by the Civil Court to the Mamlatdar in Civil Suit No. 97 of 75 is decided against the appellants with no order as to costs. We hereby direct the learned Civil Judge, Margao to expedite the said Suit No. 97 of 75 and to dispose it of finally within three months from the receipt of this judgment as the matter is pending in the Court since a very long time. 23.Leave to appeal for by the appellants is rejected as no important point of law is involved. Prayer for stay of this judgment is also declined as the matter is still to be decided by the trial Court.