Any transfer or transaction in respect of an evacuee property is not valid unless it is made with the previous approval of the Custodian

Lisa Coutinho | Pravin Gandhi College of Law | 19th March 2020

Sitabai Shantaram Talawnekar & Ors. v. Custodian of Evacuee Property & Ors. Civil Appeal Nos. 8802-8803 of 2013

Facts of the case:

The property known as ‘Conde-Mayem’, which originally belonged to Eurico de Soza Joquem Noroana, was declared as evacuee property after the liberation of Goa, and the same was placed under the supervision of the Custodian of Evacuee Property under provisions of the Goa, Daman and Diu Administration of Evacuee Property Act, 1964. The appellants claim to be in possession of the property as tenants of the Custodian. A dispute between the predecessors of the applicants and the 2^nd respondent (represented by his legal heirs) resulted in a civil suit filed by the predecessors praying for permanent injunction restraining the respondent from interfering with the suit property. The Civil Judge granted ex-parte injunction in the civil suit and stated that the appeal filed before the District Judge by the respondent ended in dismissal. Alleging that inspite of injunction orders, the respondents were interfering with the property in question, the appellants got police protection form the trial court. Respondent no.2 filed an application under Sections 7 and 8A of the Tenancy Act seeking declaration that he is a tenant of the portion of the suit properties. The primary authority i.e. Joint Mamlatdar-1, allowed the application. This order was confirmed by the appellate authority and further by Administrative Tribunal. The Writ Petition filed by the appellants questioning the orders were further dismissed by the High Court of Bombay at Goa. It was again dismissed by the Division Bench. Aggrieved, the appellants approached the Supreme Court.

Appellants contention:

The learned counsel for the appellants contended that there was no evidence of record to show that the 2^nd respondent was a ‘tenant’ or ‘deemed tenant’ within the meaning of the Tenancy Act and therefore the respondent’s claim was erroneously allowed by the primary authority. It further submitted that the land in question was an evacuee property and that though originally Tenancy Act was not applicable to evacuee properties but only by virtue of Amending Act 19 of 1989, the said Act is made applicable for tenancies created by Custodian. 

Respondents contention:

The learned counsel for the legal heirs of respondent 2 submitted that on the basis of the oral and documentary evidence, the primary authority has declared tenancy in favour of them and that there are no grounds to interfere with the impugned orders passed by the High Court confirming the orders of the statutory authorities.

Judgment:

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 are made applicable only to agricultural and tenancies created by the Custodian. Section 32 of the Evacuee Property Act 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.

The Apex Court took the view that the respondent has not claimed tenancy on basis of relationship existing with the Custodian. It also took the view that the respondent was not in possession of the property at the time of making the application. 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 respondent had not filed any acceptable documentary evidence to prove that he was in possession during the relevant time to claim tenancy.

Thus, the Apex Court allowed the appeals and set aside the impugned orders. Consequently, the application filed by the 2^nd respondent before the Joint Mamlatdar-1 stands dismissed.