# SITABAI SHANTARAM TALAWNEKAR & ORS v. CUSTODIAN OF EVACUEE PROPERTY & ORS

- **Citation:** [2020] 3 S.C.R. 1007
- **Court:** Supreme Court of India
- **Decided:** 2020-02-25
- **Case number:** Civil Appeal Nos. 8802-8803 of 2013
- **Bench:** L. Nageswara Rao, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sitabai-shantaram-talawnekar-ors-v-custodian-of-evacuee-property-ors-34083
- **Pages:** 8

## Headnote

Goa Daman and Diu Administration of Evacuee Property Act,
1964:
ss.3, 4 and 32 (As amended by Amendment Act 19 of 1989) -
Property in question an evacuee property - Under supervision of
Custodian under the Act - Appellants in possession thereof as tenants
of custodian - Application by respondent No.2 under s.7 and 8-A
of Goa Daman and Diu Agricultural Tenancy Act, 1964 to declare
him tenant of portion of the property in question - Claim of
respondent allowed by the Authorities and Courts below - Appeal
to Supreme Court - Held: The claim of 2nd respondent has been
allowed without recording any valid reasons based on acceptable
evidence to prove the claimed tenancy - Respondent No.2 has failed
to prove his tenancy as well as his deemed tenancy - Even to claim
sub-tenancy through the tenants/appellants, there was no prior
approval from the custodian as contemplated u/s.32 - Goa, Daman
and Diu Agricultural Tenancy Act, 1964 - ss.7 and 8A.
Allowing the appeals, the Court
HELD: 1. The claim of the 2nd respondent is allowed
without recording any valid reasons based on acceptable evidence
to prove the tenancy as claimed by him. The 2nd respondent has
not claimed tenancy directly from the Custodian, in absence of
which he cannot have the benefit of Amending Act 19 of 1989.
Amending Act 19 of 1989 which amends the Goa, Daman and Diu
Administration of Evacuee Property Act, 1964 and the Goa,
Daman and Diu Agricultural Tenancy Act, 1964 makes it clear
that 'tenancy' means the relationship existing between tenant
and the Custodian. [Para 9][1013-C-D]
2. The 2nd respondent has not claimed tenancy on the basis
of relationship existing with the Custodian. Further, by virtue of
[2020] 3 S.C.R. 1007
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[2020] 3 S.C.R.
Section 3, as amended, the provisions of Tenancy Act are made
applicable only to agricultural land and tenancies created by the
Custodian. The said provision is a provision overriding other
laws. Even as per the claim of the 2nd respondent he was not in
possession at the time of making the application but it was his
case that he was dispossessed after the appellants' predecessors
obtained injunction orders in Civil Suit No.126 of 1984. As such,
he has claimed to be a deemed tenant within the meaning of
Section 4 of the Tenancy Act. 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. Even to claim sub-tenancy or
transfer from the predecessor of the appellants, who was
admittedly tenant from the Custodian under the provisions of
the Evacuee Property Act, there was no prior approval from the
Custodian as contemplated under Section 32 of the Evacuee
Property Act. The primary authority, though referred to various
objections raised by the appellants herein, has allowed the
application based on the alleged oral settlement by the appellants'
predecessor and the 2nd respondent. Such oral settlement which
is disputed by the appellants cannot be the basis for grant of
tenancy rights on the application made by the 2nd respondent.
[Para 9][1013-D-H; 1014-A-B]

## Text

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SITABAI SHANTARAM TALAWNEKAR & ORS.
v.
CUSTODIAN OF EVACUEE PROPERTY & ORS.
(Civil Appeal Nos. 8802-8803 of 2013)
FEBRUARY 25, 2020
[L. NAGESWARA RAO AND R. SUBHASH REDDY, JJ.]
Goa Daman and Diu Administration of Evacuee Property Act,
1964:
ss.3, 4 and 32 (As amended by Amendment Act 19 of 1989) -
Property in question an evacuee property - Under supervision of
Custodian under the Act - Appellants in possession thereof as tenants
of custodian - Application by respondent No.2 under s.7 and 8-A
of Goa Daman and Diu Agricultural Tenancy Act, 1964 to declare
him tenant of portion of the property in question - Claim of
respondent allowed by the Authorities and Courts below - Appeal
to Supreme Court - Held: The claim of 2nd respondent has been
allowed without recording any valid reasons based on acceptable
evidence to prove the claimed tenancy - Respondent No.2 has failed
to prove his tenancy as well as his deemed tenancy - Even to claim
sub-tenancy through the tenants/appellants, there was no prior
approval from the custodian as contemplated u/s.32 - Goa, Daman
and Diu Agricultural Tenancy Act, 1964 - ss.7 and 8A.
Allowing the appeals, the Court
HELD: 1. The claim of the 2nd respondent is allowed
without recording any valid reasons based on acceptable evidence
to prove the tenancy as claimed by him. The 2nd respondent has
not claimed tenancy directly from the Custodian, in absence of
which he cannot have the benefit of Amending Act 19 of 1989.
Amending Act 19 of 1989 which amends the Goa, Daman and Diu
Administration of Evacuee Property Act, 1964 and the Goa,
Daman and Diu Agricultural Tenancy Act, 1964 makes it clear
that 'tenancy' means the relationship existing between tenant
and the Custodian. [Para 9][1013-C-D]
2. The 2nd respondent has not claimed tenancy on the basis
of relationship existing with the Custodian. Further, by virtue of
[2020] 3 S.C.R. 1007
1007
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SUPREME COURT REPORTS
[2020] 3 S.C.R.
Section 3, as amended, the provisions of Tenancy Act are made
applicable only to agricultural land and tenancies created by the
Custodian. The said provision is a provision overriding other
laws. Even as per the claim of the 2nd respondent he was not in
possession at the time of making the application but it was his
case that he was dispossessed after the appellants' predecessors
obtained injunction orders in Civil Suit No.126 of 1984. As such,
he has claimed to be a deemed tenant within the meaning of
Section 4 of the Tenancy Act. 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. Even to claim sub-tenancy or
transfer from the predecessor of the appellants, who was
admittedly tenant from the Custodian under the provisions of
the Evacuee Property Act, there was no prior approval from the
Custodian as contemplated under Section 32 of the Evacuee
Property Act. The primary authority, though referred to various
objections raised by the appellants herein, has allowed the
application based on the alleged oral settlement by the appellants'
predecessor and the 2nd respondent. Such oral settlement which
is disputed by the appellants cannot be the basis for grant of
tenancy rights on the application made by the 2nd respondent.
[Para 9][1013-D-H; 1014-A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 88028803 of 2013.
From the Judgment and Order dated 08.05.2009 of the High Court
of Bombay at Goa in Writ Petition No. 142 of 2009 and order dated
09.09.2009 in L.P.A. No. 14 of 2009.
With
Contempt Petition (C) Nos. 187-188 of 2012 in C.A. Nos. 88028803 of 2013.
Siddharth Bhatnagar, Sr. Adv., Sidharth Mohan, Aditya Sidhra,
Ankit Yadav, T. Mahipal, Advs. for the Appellants.
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Pratap Venugopal, Ms. Surekha Raman, Ms. Ayushi Gaur, Akhil
Abraham Roy, Vijay Valsan, M/S. K J John And Co., Abhinav Mukerji,
Samarth Khanna, Mrs. Bihu Sharma, Ms. Pratishtha Vij, Advs. for the
Respondents.
The Judgment of the Court was delivered by
R. SUBHASH REDDY, J.
Civil Appeal Nos.8802-8803 of 2013
1. These civil appeals are filed, aggrieved by the judgment and
order dated 08.05.2009 passed in W.P. No.142 of 2009 and the judgment
and order dated 09.09.2009 passed in L.P.A. No.14 of 2009 by the High
Court of Bombay at Goa.
2. The subject matter of dispute relates to property known as
'Conde-Mayem'. The said property, covered by Survey Nos.113, 116,
114 and 115/1, 2 and 3, is situated at Mayem, Bicholim in the State of
Goa. 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 (for short, 'Evacuee
Property Act'). 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 (now
represented by his legal heirs), the predecessors of the appellants filed
Civil Suit No.126 of 1984 on the file of Civil Judge, Senior Division,
Bicholim praying for permanent injunction restraining the respondentdefendant from interfering with the suit property. On 15.07.1985 the
Civil Judge, Senior Division, Bicholim granted ex-parte injunction in the
civil suit and it is stated that the appeal filed before the District Judge by
the 2nd respondent ended in dismissal. On 05.11.1984 respondent no.2
filed an application before the Court of Custodian of Evacuee Property,
Panji, claiming that he was in possession of the portion of cashew garden
and the appellants were trying to evict him as he was not paying the
exorbitant rent demanded by the appellants. Vide order dated 21.01.1986
the Custodian of Evacuee Property dismissed the application of respondent
no.2. Alleging that inspite of injunction orders obtained by the appellants
in Civil Suit No.126 of 1984, respondents were interfering with the property
in question, the appellants got police protection from the trial court vide
SITABAI SHANTARAM TALAWNEKAR & ORS. v. CUSTODIAN OF
EVACUEE PROPERTY & ORS.
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order dated 29.08.1989. Thereafter the 2nd respondent filed Regular
Civil Suit No.60 of 1990 in respect of portion of property covered by
Survey Nos.114 and 116 and the said suit ended in dismissal vide order
dated 18.12.1992.
3. As per Section 56 of Goa, Daman and Diu Agricultural Tenancy
Act, 1964 (hereinafter referred to as, 'the Tenancy Act'), the Act was
not applicable in respect of evacuee properties. By virtue of Goa
Administration of Evacuee Property (Amendment) Act, 1989, the
provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 were
made applicable to the evacuee properties. In view of such amendment,
respondent no.2 filed an application under Sections 7 and 8-A of the
Tenancy Act seeking declaration that he is a tenant of the portion of the
suit properties covered in Civil Suit No.126 of 1984. The primary authority,
i.e., Joint Mamlatdar-I, Bicholim, Goa vide order dated 30.08.2002 allowed
the application declaring the 2nd respondent as a tenant. The said order
is confirmed by the appellate authority vide order dated 08.01.2003 and
further confirmed by Administrative Tribunal vide order dated 30.12.2008.
When the appellants have filed writ petition in W.P.No.142 of 2009
questioning the aforesaid orders, learned Single Judge of the High Court
of Bombay at Goa dismissed the writ petition vide order dated 08.05.2009.
When the said order is appealed before the Division Bench, by way of
Letters Patent Appeal, same is dismissed as not maintainable. Though
the Division Bench of the High Court did not go into merits of the matter,
but in view of the long standing dispute between the parties, we have
heard the matter on merits with the consent of the learned advocates
appearing on both sides.
4. Learned senior counsel Sri Siddharth Bhatnagar appearing for
the appellants has contended that the application of the 2nd respondent
claiming tenancy was allowed without recording any valid reasons in
support of the claim. It is submitted that the alleged oral compromise is
made basis by the primary authority for allowing the application without
examining the relevant aspects as per the provisions of Tenancy Act for
declaration of tenant. It is submitted that there is no evidence on record
to show that 2nd respondent was a 'tenant' or 'deemed tenant' within
the meaning of the Tenancy Act and rules made thereunder to allow his
application for declaration of tenancy rights. It is further submitted that
undisputedly land in question is an evacuee property governed by the
provisions of the Evacuee Property Act and that though originally the
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Tenancy Act was not applicable to evacuee properties but only by virtue
of Amending Act 19 of 1989, the said Act is made applicable to evacuee
properties for tenancies created by Custodian. It is further submitted
that in absence of any acceptable evidence on record to show that 2nd
respondent was tenant of the land in question his claim was erroneously
allowed by the primary authority and no other authority, namely, appellate
and revisional authorities and the learned Single Judge of the High Court
have considered the matter in proper perspective and have confirmed
the order mechanically.
5. On the other hand, Sri P. Venugopal, learned counsel appearing
for the legal heirs of the 2nd respondent, has submitted that there is a
concurrent finding by all the authorities which is confirmed by learned
Single Judge of the High Court, as such, there are no grounds to interfere
with the same. It is submitted that the parties are related and the 2nd
respondent was in possession of a portion of the land which is covered
by the application claiming tenancy rights and the oral evidence led before
the primary authority confirms the possession of the 2nd respondent. It is
further submitted that in view of the available oral and documentary
evidence on record, the primary authority has declared tenancy in favour
of 2nd respondent and there are no grounds to interfere with the impugned
orders passed by the High Court confirming the orders of the statutory
authorities.
6. Having heard learned counsels on both sides, we have perused
the impugned order and other material placed on record.
7. 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.
SITABAI SHANTARAM TALAWNEKAR & ORS. v. CUSTODIAN OF
EVACUEE PROPERTY & ORS. [R. SUBHASH REDDY, J.]
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8. The Goa, Daman and Diu Administration of Evacuee Property
Act, 1964 and the Goa, Daman and Diu Agricultural Tenancy Act, 1964
are amended by the Amending Act 19 of 1989, extending the benefits of
Tenancy Act to the evacuee properties. As per Section 2(kkk) of the
Amending Act, 'tenancy' means the relationship existing between the
tenant and the Custodian; and as per Section 2(kkkk) 'tenant' means a
person who on or after the date of commencement of the Goa
Administration of Evacuee Property (Amendment) Act, 1989, holds land
and cultivates it personally but does not include a person who holds land
on lease for the purpose of plucking the fruits only. Section 3 of the
Amending Act amends Section 3 of the principal Act, to override other
laws. As amended, Section 3 of principal Act reads as under :
"3. Act to override other laws.-
(1) On and from the date of coming into force of the Goa
Administration of Evacuee Property (Amendment) Act, 1989, the
provisions of the Goa, Daman and Diu Agricultural Tenancy Act,
1964 (Act 7 of 1964), for the time being in force, shall apply in
respect of agricultural land and tenancies created by the Custodian.
(2) The provisions of this section shall, save as otherwise expressly
provided, have effect notwithstanding anything to the contrary
contained in any instrument having effect by virtue of any such
law."
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.
There is yet another important aspect which has bearing on the issue is
the provision under Section 32 of the Evacuee Property Act which reads
as under :
"32. Transactions relating to evacuee property void in
certain circumstances.-(1) As from the commencement of this
Act, no transfer of or transaction in respect of any property
belonging to a Portuguese national shall be valid unless it is made
with the previous approval of the Custodian.
(2) Subject to the other provisions contained in this Act, every
transaction entered into by any person in respect of property
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declared or deemed to be declared to be evacuee property within
the meaning of this Act shall be void unless entered into by or
with the previous approval of the Custodian"
Section 32, as referred to above, 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.
9. From a perusal of the impugned orders passed by the primary
authority, appellate authority and the revisional authority and the order
of the learned Single Judge of the High Court, we are of the view that
the claim of the 2nd respondent is allowed without recording any valid
reasons based on acceptable evidence to prove the tenancy as claimed
by him. The 2nd respondent has not claimed tenancy directly from the
Custodian, in absence of which he cannot have the benefit of Amending
Act 19 of 1989. Amending Act 19 of 1989 which amends the Goa, Daman
and Diu Administration of Evacuee Property Act, 1964 and the Goa,
Daman and Diu Agricultural Tenancy Act, 1964 makes it clear that
'tenancy' means the relationship existing between tenant and the
Custodian. The 2nd respondent has not claimed tenancy on the basis of
relationship existing with the Custodian. Further, by virtue of Section 3,
as amended, the provisions of Tenancy Act are made applicable only to
agricultural land and tenancies created by the Custodian. The said
provision is a provision overriding other laws. Even as per the claim of
the 2nd respondent he was not in possession at the time of making the
application but it was his case that he was dispossessed after the
appellants' predecessors obtained injunction orders in Civil Suit No.126
of 1984. As such, he has claimed to be a deemed tenant within the
meaning of Section 4 of the Tenancy Act. 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. Even to claim
sub-tenancy or transfer from the predecessor of the appellants, who
was admittedly tenant from the Custodian under the provisions of the
Evacuee Property Act, there was no prior approval from the Custodian
as contemplated under Section 32 of the Evacuee Property Act. The
primary authority, though referred to various objections raised by the
appellants herein, has allowed the application based on the alleged oral
SITABAI SHANTARAM TALAWNEKAR & ORS. v. CUSTODIAN OF
EVACUEE PROPERTY & ORS. [R. SUBHASH REDDY, J.]
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[2020] 3 S.C.R.
settlement by the appellants' predecessor and the 2nd respondent. Such
oral settlement which is disputed by the appellants cannot be the basis
for grant of tenancy rights on the application made by the 2nd respondent.
Even the appellate and revisional authorities have not considered the
relevant aspects and disposed of the appeal and revision. Learned Single
Judge of the High Court, by giving credence to the inspection report and
excise licences obtained by 2nd respondent, has confirmed the order
passed by the authorities.
10. For the aforesaid reasons, we allow these appeals and set
aside the impugned orders, consequently the application filed by the 2nd
respondent before the Joint Mamlatdar-I of Bicholim in Case No.JM/-1/
TNC/19/95 stands dismissed.
Contempt Petition(C)Nos.187-188 of 2012
11. 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 2nd respondent 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.
Kalpana K. Tripathy
Appeals allowed.