RAJASAB KASIM SAB Vs. PRABHAKAR V SHIRODKAR

JUDGEMENT

(1.) THE appellants challenge in this second appeal the dismissal by the learned District Judge, North Goa, Panaji, by judgment and Order dated 22nd June, 1988 in Regulatar Civil Appeal No. 15/85, of the appeal filed by them against the judgment of the learned Civil Judge, Junior Division, Panaji, dated 29th January, 1985, in Civil Suit No. 190/83/b.

(2.) IN short the relevant facts of the case are that the respondent by a written agreement dated 10-5-1975 leased to the appellant No. 1 a portion of his property admeasuring 32 square meters, known as "oulem Morodd" situated at Tonca, Caranzalem, bearing registration No. 1260. The land was given on lease for the purpose of erecting thereon a structure (hut) of light materials of temporary character "for the purpose of residence of the tenant". The period of lease was for 12 months and the monthly rent was of Rs. 15/ -. It was stipulated in the agreement that at the end of the period of 12 months the tenant agreed to pull down the hut and carry away its materials. It seems, however, that after the initial period of the agreement was over, the appellants continued to reside in the aforesaid hut and were paying the amount of Rs. 15/- to the respondent which he also continued to accept. On 22-1-1983 the wife of the appellant No. 1, who is the appellant No. 2, by name Roshan Bi, filed a suit against the respondent alleging that her husband Rajasab had gone to work in the Middle East and that she was living in the hut constructed in the suit land with her seven minor children. It was further alleged by her that the respondent was trying to forcibly evict her from the hut threatening to demolish it by using force. She therefore prayed for permanent injunction seeking to restrain the respondent from forcibly evicting her from the property. This suit seems to have been filed after the respondent by notice dated 6-2-1983 purported to terminate the lease in favour of appellant No. 1 in respect of the suit land with effect from 31-3-1993. It was during the pendency of this suit of appellant No. 2 that the respondent filed his Suit No. 190/83/b against both the appellants on 20-7-1983.

(3.) THE appellants resisted this suit on the ground that they were mundkars of the respondent as they were residing in the dwelling house constructed by them on the payment of ground rent of Rs. 15/- and that, in any case, the so-called notice terminating the tenancy was invalid. Thereupon the appellants requested the trial Judge that in view of the pleadings of the parties and the stand taken by the appellants in their written statement, an issue of mundkarship be framed and the same be referred to the Mamlatdar for the purpose of decision. The trial Judge by order dated 17-7-1984 held that the issue of mundkarship in their case did not arise and therefore, no purpose would be served by framing such an issue. According to the appellants the decision was given on the basis of the judgment of the learned Single Judge of this Court in the Special Civil Application No. 168/80 whereby the learned Single Judge had held that those who pay ground rent could not be declared as mundkars. However, the appellants state that this judgment of the learned Single Judge was upset by the Division Bench in Letters Patent Appeal No. 53/83 where by the said judgment was reversed. Therefore, in view of this decision given in the Letters Patent Appeal the appellants filed a fresh application before the trial Judge to frame the issue of mundkarship which application was again dismissed by the learned trial Judge on the ground that it would amount to a review of his earlier decision. Thereupon at the end of the trial the learned trial Judge was pleased to decree the suit of the respondent and dismissed the one filed by the appellant No. 2 by a common judgment and decree dated 29-1-1985. Aggrieved by this judgment and decree the appellants filed an appeal before the learned District Judge, South Goa, which was rejected by him on 22-6-1988 by his impugned judgment under challenge.