To establish deemed tenancy under Section 4 of the Tenancy Act, one has to prove that person claimin

Sitabai Shantaram Talawnekar and ors. Vs. Custodian of Evacuee Property and Ors., Civil Appeal Nos. 8802-8803 of 2013 with Contempt petition Nos. 187-188 of 2012.

“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 Custodian. Furthermore, section 37 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.”

The Supreme Court Bench comprising of Justice L Nageswara Rao and Justice R Subhash Reddy pronounced the following judgment on February 25, 2020.

Facts: the subject matter of the dispute related to a property known as Conde Mayam which is situated in Goa with survey nos. 113, 116, 114, 115/1,2 and 3. 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 the Custodian of Evacuee Property, under provisions of the Goa, Daman and Diu Administration of Evacuee Property Act, 1964. 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, the former filed a civil suit praying for permanent injunction restraining the respondent-defendant from interfering with the suit property. The judge granted ex-parte injunction and so the appeal was dismissed. The 2nd respondent filed an application before the Court of Custodian of Evacuee Property claiming that he was in possession of the cashew garden and the appellants were trying to evacuate him as he was not paying the exorbitant rent demanded. This application was also rejected. The appellants got police protection to prevent the interference of the respondents. The respondent filed a regular civil suit and the said suit ended in dismissal.

By virtue of Goa Administration of Evacuee Property (Amendment) Act, 1989, theprovisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 were made applicable to the evacuee properties.

In view of the amendment, the respondent filed an application under sections 7 and 8-A of the Tenancy Act seeking declaration that he is tenant in the portion of the property. The joint Mamlatdar, the primary authority allowed the application. The order was also confirmed by the Administrative tribunal. The appellants filed a writ petition questioning these orders and it was dismissed by the Bombay High Court. The same was appealed in the Division Bench by way of Letters Patent Appeal and was dismissed as not maintainable.

The Learned Counsel for the appellants contended that the 2nd respondent claiming tendency was not allowed without recording any valid reasons in support of the claim. The oral compromise was allowed without examining the provisions of the Act. It is submitted that there is no evidence to show that he is a ‘tenant’ or a ‘deemed tenant’ within the meaning of the Act. It is further submitted that the land under question should not be dealt with the Tenancy Act and can only be dealt under the amendment.

The counsel appearing for the legal heirs of R2 has contended that there is a concurrent finding by all the authorities which is confirmed by the Single Judge in High Court and there are no grounds for interference. It is stated that the 2nd respondent was in possession of the land and the oral evidence confirms the possession.

After hearing both the sides, the Court held that 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. A tenant according to the act means a person who holds land and cultivates it properly but does not include a person who holds land on lease for the purpose of plucking the fruits only.

According to section 32 of the Act, any transfer or transaction in respect of any evacuee property is not valid unless it is made with the previous approval of the custodian.

The Court held that in view of the orders passed by all the lower courts, the 2nd respondent is allowed without recording any valid reasons based on acceptable evidence to prove the tenancy as claimed by him. The amending act clearly states a tenancy as a relationship existing between tenant and the Custodian. The 2nd respondent has not claimed tenancy on the basis of relationship existing between them. The respondent has such has claimed the tenancy. 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. Therefore, the appeals are allowed and the impugned orders are set aside.

“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 2ndrespondent 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.” View/Download Judgement: Sitabai Shantaram Talawnekar and ors. Vs. Custodian of Evacuee Property and Ors – Vydurya Selvi Baskaran

#1989 #GoaAdministrationofEvacueePropertyAmendmentAct #DamanandDiuAgriculturalTenancyAct #1964 #VyduryaSelviBaskaran #Supremecourt #TheGoa