COMUNIDADE DE MOIRA Vs. VASSUDEVA RAMACHANDRA ALDONKAR
LAWS(BOM)-1972-12-16
HIGH COURT OF BOMBAY
Decided on December 22,1972

Comunidade De Moira Appellant
VERSUS
Vassudeva Ramachandra Aldonkar Respondents

JUDGEMENT

- (1.) In this Revision Application the applicant is aggrieved by the order of the Civil Judge, Junior Division. Mapuca, dated 19-11-1971, staying the execution proceedings taken by the applicant on the basis of a decree for restoration of possession obtained by him from the Court.
(2.) A suit was filed by the petitioner. "Communicate de Moira" against the respondent for obtaining an order requiring the respondent to remove a hut situated in a land belonging to the applicant and to hand over to the applicant the possession of that portion of land occupied by the hut. The applicant also prayed for damages. The suit was decreed on 16-3-1971, in as far as the removal of the hut and handing over of the vacant possession was concerned and was dismissed in as far as it related to damages. The applicant applied for the execution of the decree. The execution of the decree was objected to by the respondent on the ground that he and his wife were agricultural labourers within the meaning of Section 17 (9) of the Agricultural Tenancy Act , The applicant in his reply to the objection raised by the respondent to the execution of the decree, filed an affidavit wherein he stated that the respondent was not an agricultural labourer, but a toddy taper. The learned trial Judge did not consider the question as to whether the respondent was an agricultural labourer or not, but dismissed the objection raised by the respondent on the ground that the objection should be taken in the suit and not at the stage of the execution of the decree. On 18-11-1971, the respondent filed a second application praying that the suit be stayed in view of the provisions of Section 3 (b) of the Goa, Daman and Diu (Protection from \Eviction of Mundcars, Agricultural Labourers and Village Artisans) Act. 1971 (hereinafter called "the Act"), which came into force on 2-10-1971. Under Section 2 (a) of the Act, the words "agricultural labourer" which had not been defined in the Agricultural Tenancy Act , applicable to agricultural labourers, were defined for the first time. On receipt of the second application of the respondent dated 18-11-1971, the learned trial Judge, without giving any notice to the applicant, passed the order dated 19-11-1971, staying the execution of the proceedings.
(3.) It is contended by Dr. Colaco, learned advocate for the applicant, that the respondent had in his written statement, taken the defence that he was a mundcar, and claimed protection against eviction in that capacity and that the respondent had not contended nor even averred in the suit that he was an agricultural labourer. Dr. Colaco argues that in view of the omission of the respondent to make such averment and to raise such contention, no issue of fact, was framed in the suit, as to whether the respondent was an agricultural labourer or not. This omission Dr. Colaco states, assumes importance in view of the fact that even when the suit was filed, agricultural labourers were entitled to protection against eviction under Section 9 of the Agricultural Tenancy Act . There is weight in this contention. The respondent could raise and ought to have raised the issue that he was an agricultural labourer. When an issue could and should be raised, it is deemed under law to have been raised and decided and the bar of res judicata applies. In the absence of an averment or contention, issue, in the suit, as to Whether the respondent was an agricultural labourer or not, it is not possible to hold that the provisions of Section 3 (b) of the Act are attracted. Those provisions would be applicable to the present case only in case there was a clear finding that the respondent was an agricultural labourer. The learned trial Judge has rightly rejected the first objection raised by the respondent in the execution proceeding on 7-9-1971, on the ground that such objection had not been raised in the suit and could not be entertained at the stage of the execution decree. It appears that the learned trial Judge granted the second application of the respondent dated 18-11-1971 because by that time the Act had come into force. I do not see how the coming into force of the Act changes the position of the respondent. As I have already stated, Section 3 (b) of the Act could only be applied if there was a finding on record that the respondent is an agricultural labourer. In the absence of such finding. Section 3 (b) is not attracted.;


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