MR. VICTOR LUIS MONTEIRO v. COMMUNIDADE OF CUELIM

63/2 (p), 65/1-A and 67/0 from the appellant Shri Victor Luis Monteiro. According to the applicant, the appellant was agricultural tenant and deemed owner of the said property and hence the sale deeds were executed with due permission under Section 18K of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. The land acquisition proceedings under L.A. Case no. 04/89 as well as F. A. No. 248/2003 pertain to the acquisition of a portion of the property bearing survey no. 65/3, but the applicant was neither a party before the Land Acquisition Officer nor was it a party to the apportionment proceedings u/s 30 of the Land Acquisition Act before the District Court at Margao. The said proceedings were however initiated before the applicant purchased the property. The acquired portion of survey no. 65/2003 was for laying a pipeline which passes through the property of the applicant. According to the applicant, the judgment and order dated 27/6/2003 passed in apportionment proceedings bearing L. A. Case No. 04/89 was produced by the respondent no.4 on record of Special Civil Suit No. 65/1997/B before the Court of Civil Judge, Senior Division at Vasco filed by respondent no.4 inter alia challenging the sale deeds of the applicant. The application to 4 produce the said judgment in the Civil Court was opposed by the applicant on the ground that the said judgment was not binding upon the applicant. The applicant says that being the transferee with independent rights, it seeks leave to be impleaded as a party in order to enable it to take appropriate defences. According to the applicant, considering the fact that the suit was pending and the applicant was vitally interested in the controversy and the applicant having been made defendant no. 3 in the suit, it was incumbent upon the parties to the appeal to join the applicant as party. The said Civil Suit No. 65/97/B was instituted sometime in August, 1997 during the pendency of the apportionment proceedings. The applicant is the defendant no. 3 in the said suit whereas the appellant and respondent no. 3 are the defendants no. 1 and 2 in the said suit. According to the applicant, the Gift Deed dated 24/11/1975 on the basis of which the District Court awarded compensation in favour of respondent no. 4 is a fraudulent document which has been challenged in the said suit, which suit is pending adjudication. The order dated 30/11/1988 was passed in favour of the appellant by the Mamlatdar of Mormugao in terms of the Goa, Daman and Diu Agricultural Tenancy Act, 1964. The applicant has, therefore, alleged that it is entitled to be impleaded as party to the above appeal. 5

3. By way of reply, the respondents no. 4(i) to 4(iii) have opposed the application filed by the applicant on the ground that the same is not maintainable on the following grounds:- The provisions of Section 146 r/w Order 22 Rules 10 and 11 of the Civil Procedure Code(C.P.C.) cannot support the application. The appeal arises from a reference made by the Land Acquisition Officer and the said reference was circumscribed to the dispute between the applicant and the respondents and the question of expanding its scope to permit the applicant being impleaded as a party does not arise. Since the applicant was not a party before the Land Acquisition Officer, it could not be joined as a party before the reference Court and hence is also not a party in the appeal arising from the award made by the reference Court. Admittedly, the acquisition proceedings were initiated much before the sale deeds were executed in favour of the applicant and it is not the case of the applicant that the portion acquired forms part of the property purchased. Even otherwise, after publication of notification under Section 4 of the Land Acquisition Act, the question of transfer of alleged right in the acquired property does not arise. Therefore, the application made by the stranger to the acquisition is not maintainable. The sale deeds are void and the applicant cannot 6 claim any right to the land under the void sale deeds. The order of the Mamlatdar of declaration of tenancy was void and the institution of suit by the respondent no. 4(i) cannot confer any right to the applicant to contest the appeal.

4. The applicant filed Affidavit-in-Rejoinder to the reply filed by the respondents no. 4(i) to 4(iii).

5. The appellant and the respondent no. 3 have not objected to the application filed by the applicant.

6. Heard Ms. Amira Razaq, learned Counsel appearing on behalf of the applicant and Mr. A. F. Diniz, learned Counsel appearing on behalf of the respondents no. 4(i) to 4(iii).

7. I have carefully perused the entire material on record, considered the arguments advanced by the learned counsel for the parties and also considered the judgments relied upon.

8. The deceased respondent no. 4 has filed Special Civil Suit No. 65/1997/B against Victor Luis Monteiro and Francisco 7 Alberto Lourenco Cunha who are respectively the appellant and respondent no. 3 of the First Appeal No. 248/2003 and against the applicant herein. The said suit has been filed, inter alia, for declaration that the sale deeds dated 21/5/1996 and 19/9/1996 of the applicant are null and void and the defendants have no right to the suit property bearing survey nos. 61/1 to 121, 62/1, 62/2, 63/2, 65/3 and 65/1-A of Village Cuelim. The issue no. 3 as framed in the said suit is where the plaintiff proves that the judgment of the Mamlatdar dated 30/11/1998 is null and void? It is by this judgment passed in Case No. MOR/TNC/6/1988 that the learned Mamlatdar of Mormugao declared the appellant Mr. Victor Monteiro as tenant of Shri Francisco Alberto L. De. Cunha, the respondent no.3 of the appeal, in respect of cashew and coconut plantation under survey nos. 61/1, 63/2, 65/3 and 62/1 of Cuelim village.

9. The learned District and Sessions Judge, in L.A. Case No. 04/1989 which was a reference u/s 30 of the Land Acquisition Act, by judgment and order dated 27/6/2003, has held that the party no. 5 (appellant in F. A. No. 248/2003) is not entitled to receive compensation since the order of the Mamlatdar dated 30/11/1988 is a nullity for lack of inherent jurisdiction and being obtained by fraud 8 and collusion and therefore, is not binding on the party no. 4 namely Heriberto Francisco da Cunha Poco de Bispo who is the respondent no. 4 in the First Appeal.

10. Prior to the passing of the impugned judgment dated 27/6/2003, but during the pendency of the said L. A. Case No. 04/89/A, the present applicant purchased portion of the property bearing survey no. 65/3 along with lands identified under survey nos. 63/2(p), 65/1-A and 67/0 from Shri Victor Luis Monteiro who is the appellant of the First Appeal. Admittedly, the acquired land, which was the subject matter of L. A. Case no. 04/89 and is consequently the subject matter of the F. A. No. 248/2003 has not been purchased by the applicant from the appellant. The sale deeds dated 21/5/1996 and 19/6/1996, by which the present applicant purchased the land which is not the subject matter of the L. A. Case no. 04/1989 and consequently of the present F. A. No. 248/2003, are challenged in the Special Civil Suit No.65/97/B with which we are not at all concerned in F. A. No. 248/2003.

11. The applicant was not a party to the L. A. Case No. 04/89. Any finding given by the learned District & Sessions Judge in the 9 judgment and order dated 27/6/2003 is binding on the parties to the said L. A. Case and the aggrieved party i. e. the party no. 5 thereto has filed the above appeal. Merely because the appellant and the respondent no.3 have not objected to the present application that does not mean that the applicant becomes entitled to be impleaded as party to the first appeal.

12. The appellant has filed this application under Section 146 r/w O. 22 Rules 10 and 11 of C.P.C.. Section 146 of C.P.C. provides that save as otherwise provided by this Code or by any law for time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. The applicant is not at all claiming any right to the acquired land, under the appellant. Sub-rule 1 of Rule 10 of Order 22 says that in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. Sub-rule 2 of Rule 10 provides that the attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to 10 the benefit of sub-rule (1). Rule 11 of Order 22 provides that in the application of this Order to appeals, so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal. In the present case, admittedly, the applicant does not wish to continue with the appeal. Admittedly, the applicant has no interest in the apportionment of compensation and no interest in the acquired land has come to or devolved upon the applicant. In such circumstances, Section 146 as well as Rule 10 of Order 22 of C.P.C. is not applicable to the case of the applicant.

13. In the case of “Govind Narayan Lotlikar Vs. Savitribai Raghuvira Lotlikar & others” [1986 (0) BCI 137] relied upon by the learned Counsel for the respondents no. 4(i) to 4(iii), it has been held by this Court that there is difference between reference under section 18 and the one under section 30 and in a reference under section 30, Court is to decide apportionment of compensation awarded amongst persons who are before him or as to whom compensation is payable. It has been held that in either of these cases impleading of a third person is not at all necessary nor it will be just and proper, because if so permitted it will give cause to a new dispute and scope of reference 11 will change and exceed jurisdiction of reference. In the case of “Muthavalli of Sha M.D W.S.J. Syed Zakrudeen and Anr. Vs. Syed Zindasha and Ors.” [(2009) DGLS (Soft.) 209], relied upon by the learned Counsel for respondent no. 4(i) and 4(iii), the Apex Court has held that the provisions of Order 1 Rule 10 of C.P.C have no application under the Land Acquisition proceedings.

14. In the case of “Sunderlal V. Paramsukhdas and ors.” (AIR 1968 SC 366) relied upon by Ms. A. Razaq on behalf of the applicant, the Apex Court has referred to the case of “Gola Khan V. Bholanath Marick” [(1910) 12 Cal. L.J. 545], wherein it has been observed that the petitioner was entitled to be added as a party not under Rule 10 of C.P.C., but on the ground that he was a person interested in the subject-matter of the litigation and that no order ought to have been made for its disposal without any opportunity afforded to him to establish his claim. In the case supra, the petitioner was claiming to be a “person” interested. It has been held that in order to fall within the definition of 'Person interested' a person need not claim interest in land which has been acquired and the person becomes a person interested if he claims an interest in compensation to be awarded. In the present case, the applicant is neither claiming 12 any interest in the acquired land nor in the compensation to be awarded and therefore, the above citation does not help the applicant.

15. The fear of the applicant is that since the entire tenancy of the appellant has been held to be null and void, the said finding of the learned reference Court affects the right of the applicant to portion purchased by the applicant and therefore the judgment passed in F. A. No. 248/2003 may have a bearing on the Special Civil Suit No.65/97/B. However, the present appeal is against the judgment and award passed by reference Court in a reference under the Land Acquisition Act. Under the scheme of the Land Acquisition Act, which is a self-contained code, the jurisdiction of the reference Court while disposing of a reference under the Act, is restricted by the terms of the reference itself. The applicant was neither a party before the Land Acquisition officer in the proceedings for making the award nor was it a party before the reference Court. Be that as it may, in the present appeal, we are not at all concerned with the sale deeds of the applicant nor are we concerned with the land which is subject matter of those sale deeds. We are concerned with the acquired land. In order to find out whether any finding of the learned reference court with regard to the acquired land is erroneous, there is no need of the applicant to be impleaded as party to the appeal. 13

16. In my view, therefore, there is no merit in the application.

17. Hence, the application is rejected, however, in the facts and circumstances of the case with no order as to costs. U. V. BAKRE, J. AP/-