Case Note & Summary
The petitioners, legal representatives of the deceased original defendant, challenged an order dated 5/10/2017 passed by the Civil Judge Junior Division, Panaji, which declined to stay the civil suit filed by the respondent no.1. The respondent no.1 had filed a suit for declaration, cancellation of sale deed, recovery of possession, permanent and mandatory injunction in respect of property 'Horta' bearing Survey No.40/5. The respondent claimed ownership based on a Sale Deed dated 10/09/2004. The petitioners contended that the deceased defendant was a tenant of the coconut trees in the suit property, as recorded in the survey records (Form I and XIV), and therefore the civil court lacked jurisdiction and the matter should be referred to the tenancy authorities under the Goa, Daman and Diu Agricultural Tenancy Act, 1964. The trial court rejected this contention, holding that the issue of tenancy was not bona fide and that the civil court had jurisdiction to decide the suit. The High Court, exercising jurisdiction under Article 227 of the Constitution of India, upheld the trial court's order. The court reasoned that the mere entry in the survey records indicating 'leasehold rights of coconut trees' did not establish a tenancy under the Tenancy Act, as the petitioners failed to produce any evidence of payment of rent or cultivation. The court further held that the issue of tenancy must be tried as a preliminary issue under Section 9A of the Code of Civil Procedure, 1908, and the suit could not be stayed. The petition was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Stay of Suit - Tenancy Dispute - Section 9A Code of Civil Procedure, 1908 - The court considered whether a civil suit for declaration of title and possession should be stayed when the defendant raises a tenancy claim. Held that the issue of tenancy must be tried as a preliminary issue by the civil court under Section 9A CPC, and the suit cannot be stayed unless the tenancy claim is bona fide and the defendant is in possession as a tenant. (Paras 2-10)
B) Tenancy Law - Jurisdiction of Civil Court - Bona Fide Tenancy - Goa, Daman and Diu Agricultural Tenancy Act, 1964 - The court examined whether the tenancy claim raised by the petitioners was bona fide. Held that the mere entry in the survey records as 'leasehold rights of coconut trees' does not establish a tenancy under the Act, and the civil court has jurisdiction to decide the issue. (Paras 5-8)
C) Constitutional Law - Writ Jurisdiction - Article 227 of the Constitution of India - The court exercised supervisory jurisdiction under Article 227 to examine the correctness of the trial court's order. Held that the trial court's refusal to stay the suit was correct and did not warrant interference. (Para 1)
Issue of Consideration
Whether the civil suit should be stayed pending determination of tenancy by the tenancy authorities under the Goa, Daman and Diu Agricultural Tenancy Act, 1964, when the defendant claims tenancy rights.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order dated 5/10/2017. No order as to costs.
Law Points
- Jurisdiction of civil court
- Tenancy dispute
- Preliminary issue
- Section 9A CPC
- Bona fide tenancy claim
- Maintainability of suit
Case Details
2018 LawText (BOM) (05) 46
Writ Petition No.163/2018
Shri S.D. Lotlikar, Senior Advocate with Ms. A. Naik, Advocate for the Petitioners; Shri G. Agni with Shri E. Usapkar, Advocates for the Respondent No.1
Shri Shiva Subha Morye (since deceased) through LRs: Smt. Parvati Shiva Morye (since deceased), Shri Rajendra Morye, Shri Govind Morye, Shri Vinayak Morye, Shri Satish Morye, Shri Sanjay Morye
Mr. Menino Xavier Gomes, Mr. Juvenal Torres and Smt. Annie Mary Pinto E Torres (both since deceased) through LR Mr. Cleophas Torres, Mr. Teofilo Souza Mathias D'Souza
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Nature of Litigation
Civil writ petition under Article 227 challenging trial court's order refusing to stay civil suit on ground of tenancy.
Remedy Sought
Petitioners sought to set aside the trial court's order dated 5/10/2017 and to stay the civil suit pending determination of tenancy by tenancy authorities.
Filing Reason
The trial court declined to stay the suit despite the petitioners' claim that the deceased defendant was a tenant of coconut trees in the suit property.
Previous Decisions
The Civil Judge Junior Division, Panaji, by order dated 5/10/2017, dismissed the petitioners' application for stay of the suit.
Issues
Whether the civil suit should be stayed pending determination of tenancy by the tenancy authorities under the Goa, Daman and Diu Agricultural Tenancy Act, 1964?
Whether the tenancy claim raised by the petitioners was bona fide?
Submissions/Arguments
Petitioners argued that the deceased defendant was a tenant of coconut trees in the suit property as per survey records, and therefore the civil court lacked jurisdiction and the suit should be stayed.
Respondent no.1 argued that the tenancy claim was not bona fide and that the civil court had jurisdiction to decide the suit.
Ratio Decidendi
The issue of tenancy must be tried as a preliminary issue by the civil court under Section 9A CPC, and the suit cannot be stayed unless the tenancy claim is bona fide and the defendant is in possession as a tenant. Mere entry in survey records as 'leasehold rights of coconut trees' does not establish a tenancy under the Goa, Daman and Diu Agricultural Tenancy Act, 1964.
Judgment Excerpts
This petition takes exception to the impugned order dated 5/10/2017 passed by the Civil Judge Junior Division, Panaji pursuant to which the learned Trial Judge declined to stay the suit in view of the issue of tenancy...
The case of the petitioners briefly was that the respondent no.1 had filed the suit for declaration, cancellation of the Sale Deed, recovery of possession, permanent and mandatory injunction against the petitioners relating to the property 'Horta'...
Procedural History
The respondent no.1 filed a civil suit in the Court of Civil Judge Junior Division, Panaji. The petitioners (defendants) filed an application seeking stay of the suit on the ground that the issue of tenancy should be decided by the tenancy authorities. The trial court dismissed the application on 5/10/2017. The petitioners then filed the present writ petition under Article 227 of the Constitution of India before the High Court of Bombay at Goa.
Acts & Sections
- Code of Civil Procedure, 1908: Section 9A
- Goa, Daman and Diu Agricultural Tenancy Act, 1964:
- Constitution of India: Article 227
