Smt. Joyce Colaco, alias Ivon Joyce Colaco and Shri Ivon Colaco vs Shri Hornesto Joaquim Piedade, Gregorio Fernandes alias Damaciano Fernandes and his wife (since dead rep. by legal representatives) and Others

U. D. Salvi, J.—Both the appellants and respondents have been litigating over road/access passing through property bearing survey no. 131/10 and 131/11 of village Velim, Salcette South Goa. Both have rival claim to the suit road or land through which road passes. The appellants instituted Regular Civil Suit no.232/99/D in the Court of Civil Judge Junior Division, Margao Goa for permanent injunction restraining respondents no.1 and 2 and two others from dismantling and/or from interfering in the suit access and for declaration as owner of the suit access by prescription. This suit was dismissed on merits. Regular Civil Appeal no. 13/2008 preferred against judgment and decree of the dismissal of the said suit also came to be dismissed on merits.

The respondent nos. 1 and 2 alongwith one Natalista Fernandes e Colaco instituted suit against the present appellants being Special Civil Suit no. 241/99/D in the Court of Civil Judge Senior Division Margao for permanent injunction restraining the defendants therein from interfering with the suit property bearing survey no.131/0 and 131/11 particularly by using the road created by dumping mud and for mandatory injunction directing the defendants to remove all the mud dumped in the suit property. This suit was partly allowed in as much as both permanent and mandatory injunctions were granted in favour of the plaintiffs therein in relation to survey no. 131/10.The appeal being Regular Appeal no. 12/2008 preferred from the said judgment and decree in favour of the respondents herein was dismissed.

Now the appellants have chosen to prefer this second appeal against judgment and decree passed in SCS 241/1999 and Regular Appeal 12/08 passed by the learned Civil Judge Senior Division, Margao and learned District Judge(III) South Goa Margao on the ground that the following substantial question of law: " Whether an Order u/s 14 of the Agriculture Tenancy Act, 1964 without a declaration of tenancy be sufficient to spell out right/ownership/tenancy in favour of respondent in respect of suit property, especially when the proceedings u/s 14 was not filed by the respondents against the landlord of the suit property" and such other ancillary questions quoted in the appeal memo at serial nos. b to e arise in the present appeal.

Learned Advocate N. Sardessai for the appellants submitted that section 14 sub clause (3) of the Goa Daman and Diu Agricultural Tenancy Act 1964 herein after referred to as the Act postulated hearing of the landlord before question as to continuation of the tenancy is to be determined by the Mamlatdar and therefore Order u/s 14 does not confer any tenancy right, and right of tenancy is determined by the Mamlatdar u/s 7 of the said Act. In the instance case, he submitted, the application u/s 14 of the said Act declaring continuation of the tenancy right of Smt. Serolina Colsco in respect of landed property bearing survey no.1 31/10 of village Veling came to be passed in the proceeding wherein landlords were not heard and as such said order cannot be said to have conferred any tenancy right on the appellant/respondent no.1 Hornesto Joaquim Fernandes herein. This aspect he submitted was not considered by the first appellate Court and therefore it is just and necessary to get complete answer on the substantial questions of law as arising in the present appeal.

Learned Advocate Mr. Usgaonkar for the respondent submitted that the trial Court and the first appellate Court have given concurrent findings in favour of the respondents on the principle issue of easementary right claimed by the appellants and the debate over all other issues is futile. He further pointed out that order u/s 14 of the Act was passed on 27.2.2001 when the respondent no.1 Hornesto Joaquim Fernandes had already became tenant /purchaser of the said landed property by virtue of section 18(H) of the said Act vide purchase certificate exhibit 56 and therefore there was no need of hearing landlord Communidade of Veling while passing the said order. He further pointed out that once the Court below having heard and finally decided the principle issue of easementary right claimed by the appellants in favour of the respondents, the issue sought to be raised in respect of the Order u/s 14 of the Agricultural Tenancy Act becomes a peripheral issue.

Learned Advocate Mr. Usgaonkar, for the respondents submitted that the matter directly and substantially in issue, particularly the principle issue of easementary right in both the said suits between the same parties has been clearly answered and no appeal has been preferred against the negative findings recorded by the two Courts below in Regular Civil Suit no. 232/1999/D and the appeal therefrom and as such the bar of res-judicata envisaged u/s 11 of the CPC against further debate over the same issue by way of this appeal preferred from the judgment and decree in subsequent suit being Regular Civil Suit no. 241/99/D and the appeal therefrom comes into play.

There is substantial merit in the submissions made on behalf of the respondents. Nothing substantial survives in the present appeal for further debate. Second Appeal no. 14/2009 therefore stands dismissed in limine.