Bombay High Court
Josepha Fernandes vs Aulio Joaquim Vaz And Ors. on 13 July, 1994
Equivalent citations: 1995(1)BOMCR620
JUDGMENT E.S. Da Silva, J.
1. This writ petition under Articles 226 and 227 of the Constitution of India challenges the judgment of the Administrative Tribunal dated 23rd June, 1989 passed in Munkdar Revision Application No. 23 of 1986.
2. By the aforesaid judgment the Tribunal has upheld the judgment and the order of the Additional Collector of North Goa, Panaji, dated 9th October, 1986 in Case No. MUND/AC/APL/65/84 which in appeal has reversed the judgment of the Mamlatdar dated 30-3-1994 declaring the petitioner as a Mundkar in respect of the dwelling house wherein she is staying and restraining the respondents Nos. 1 and 2 along with their family members, agents, servants, labourers and representatives from interfering in the petitioner's dwelling house.
3. The case of the petitioner is that she is staying as a Mundkar in the property belonging to the respondents and situated at Borda, Margao. The petitioner along with her husband, who died some two years prior to the filing of the application to the Mamlatdar, were formerly residing in the same property of the respondents in another house situated at a distance of about 20 to 25 metres from the presently existing one, for more than 35 years as Mundkars. The petitioner, her children and one aunty shifted to the new house as Mundkars since 1964 because the respondents/landlords demolished the former house and allowed the petitioner and her late husband to construct the present house for which the respondents spent half of the cost of the construction. The present dwelling house of the petitioner comprises the residential house, one pigsty, a bathroom covered with palm leaves and mud base which the petitioner and her family members are using and enjoying without any obstruction from the respondents. To the rear side of the house there is a banana plantation, pineapple growth, one papaiya tree and one 'anter' tree which trees are being enjoyed by the petitioner and her family members peacefully without any interference on the part of the respondents. However, on 29th July, 1978, the respondents Nos. 1 and 2 along with some labourers and at the instructions of the late opponent No. 1 in the application came to the residential house of the petitioner and destroyed the entire plantation causing to her a loss of about Rs. 600/- to Rs. 700/-. On the said occasion they threatened the petitioner that they would demolish the dwelling house. A criminal complaint was lodged against the respondents at the Margao Police Station which was treated by the police as N.C. complaint. Therefore, she moved an application to the Mamlatdar praying that she be declared as mundkar of the house and the respondents be injuncted from dispossessing her from the dwelling house and restrained from demolishing the same.
4. The case of the respondents is that the petitioner along with her husband and other members of family were residing in the property belonging to them in a house situated about 20 to 25 metres away from her present existing house for the period from 1952 to 1963 (husband residing since 1950 on payment of Rs. 2/- per month by virtue of the contract dated 27-3-1950 which was being renewed regularly). In the year 1963 when the respondents decided to construct their new house, the house leased to the petitioner's husband was demolished and the respondents constructed the presently existing house for the occupation of the petitioner and her husband as lessees on payment of a monthly rent of Rs. 10/-. The respondents bore out the cost and the expenses of the re-construction. Thereupon the petitioner's husband continued to renew the original contract of 1950 even after the year 1964 as lessee of the presently existing house occupied by the petitioner. The respondents are regularly paying house tax in respect of the petitioners house and the same house is also entered in the survey records in the respondents No. 1's name. The respondents denied that there has been any plantation made by the petitioner in their property and also that the respondents had uprooted or destroyed any such plantation.
5. Shri Kantak, learned Counsel appearing for the petitioner, has submitted that with reference to the definition of "Mundkar" under section 2(p) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 and its Explanation, the petitioner was the lawful resident of the suit house right from 1964 and with fixed habitation therein. This is a fact admitted on record and her lawful residence or occupation of the house derives from the Explanation and from the fact that no suit for her eviction as trespasser was filed against her within one year prior to the appointed date, i.e., 12-3-1976. Hence, Explanation was attracted and therefore she was deemed to be lawfully occupying the suit premises. According to the learned Counsel once this is an admitted position she could claim to be a Mundkar on this ground alone fully satisfying the ingredients of section 2(p). It was contended by the learned Counsel that in her application it is exactly this what she claimed but the respondents objected by saying that she was paying rent to the landlord and therefore falling in the category (i). Therefore it was for the respondents to show that she was paying the rents and that in case she had failed to do then obviously she was to be held as Mundkar. The learned Counsel urged that in this respect the petitioner had proved whatever she was required to prove and the respondents had not been able to establish anything regarding the payment of rents. Admittedly there were no rent receipts and there were two lease agreements on the basis of which the respondents are claiming that the rents were being paid by the petitioner. The learned Counsel contended that none of the documents produced by the respondents are able to prove the payment of rent by the petitioner. Admittedly the lease deed of 1950 refers to the old structure while the document of 1967 which is purported to be a document of renovation or extension of the old lease is a document which cannot be related to the same structure once there is no dispute that the same was demolished and the petitioner along with her husband shifted to the new structure in 1964. The learned Counsel submitted that the document of 1963 is disputed by the petitioner so much so she was not a party to the said document and the signature shown therein is not her's being thus a false and fabricated document. But assuming that this Court was inclined to hold the document as true in that case his submission was that the document could not refer to the suit house bearing No. 2430 given in the year 1967, i.e., the new house where the petitioner is living since 1964. The old house had been already demolished and did not exist.
It was also contended by the learned Counsel that none of the courts below addressed to the point as to who had actually constructed the house. It was the petitioner's case that the construction was done by her with the help of the landlord while the respondents alleged that the new house was exclusively erected by them on the understanding that the petitioner would shift to that house and continue as a lessee under the same lease executed in respect of the old house. It was further submitted that this issue was very material and should have been decided first by the Mamlatdar. According to the learned Counsel if the petitioner has been able to convince the Court that the construction had been done by her there was no question of the payment of any rents and in the circumstances of the case she could not be held to be a tenant. It was then submitted that since none of the concerned authorities had dealt with this vital aspect it would be only proper that the matter be remanded to the Mamlatdar for enabling him to decide on the issue of the actual construction of the house. The further submission is that the Act was enforced in 1965 and the document of 1967 was purportedly creating a lease for a period of 3 years. The learned Counsel contended that every renewal of lease amounts to a fresh lease. Under section 107 of the Transfer of Property Act leases exceeding one year were to be made under a registered document or an instrument. Under section 49 of the Indian Registration Act which deals with the effect of non-registration of the documents required to be registered it is provided that no document required to be registered shall, amongst other consequences, be received as evidence of any transaction affecting such property although its proviso enables that the same be received as evidence of any collateral transaction not to be effected by a registered instrument. The learned Counsel thus said that based upon these two provisions the document of 1967 could not be considered or received in evidence to show the petitioner's occupation of the suit house as a lessee. At the most it only could suggest a permissive occupation of the house by her. A document which is shown as unregistered could not be received as evidence and if it was pressed in evidence this could be only for a collateral purpose. The learned Counsel relied in the case of Zarif Ahmad and another v. Satish Kumar and another, A.I.R. 1983 All. 164, to say that the relationship of tenant and landlord could not be held as a collateral purpose in an agreement of lease. A reference was made to another decision in the case of Ramlaxmi Ranchhodlal v. The Bank of Baroda, , which deals with the question as to what is a collateral purpose. The learned Counsel argued that since the document of 1967 cannot be admitted in evidence to prove a lease and there was no other evidence on record in support of the existence of such lease the plea raised by the respondents that the petitioner was a tenant could not be entertained. Thus on the failure of the respondents to prove tenancy against the petitioner, the petitioner was entitled to be accepted as a Mundkar more so when she had proved to have complied with all other requirements of the definition of a "Mundkar".
The last grievance of the learned Counsel was that the Mamlatdar has rightly declared the petitioner as a Mundkar but the Collector has reversed his findings without proper application of mind and wrongly recording the facts which led to his arriving at fallacious and illegal conclusions which found favour with the Tribunal. Therefore, this judgment of the Tribunal was bound to be interfered under this Court's supervisory jurisdiction.
6. Mr. Bruto D'Costa, learned Counsel for the respondents, at the very outset has drawn my attention to the change of stand taken by the petitioner in this case which, according to him, can be reflected when her own pleadings are confronted with the submissions made by the learned Counsel on her behalf. Mr. D'Costa took me to the petitioner's application filed before the Mamlatdar in which she claims that she was staying along with her husband in the suit property for more than 35 years as Mundkar. This shows that the petitioner's claim in the application is not that the legal relationship which was pre-existing right from 1950 when admittedly a deed of lease was executed by the petitioner's late husband with the landlord changed in 1964 as contended by the Counsel of the petitioner. Thus, the learned Counsel submitted, what the Court has before it is a person who from the very beginning has made a false statement on a vital issue with regard to the question as to what is her legal relationship with the legal owner of the land from the very inception of her stay in the property. The learned Counsel contended that he was making that statement because the one who claims to be a Mundkar has to prove that he is lawfully occupying a house in the landlord's property and staying therein with a fixed residence. In this respect the learned Counsel stated that the Explanation to section 2(p) does not create presumption of Mundkarship but only a presumption of lawful occupation. Thus the Explanation does not say that the one who occupies the house on the appointed date without a suit having been filed against him as trespasser is deemed to be a mundkar, but instead it says that he is only deemed to occupy it lawfully. Therefore, one has to plead and prove by evidence not only that he is occupying the house with the lawful consent of the landlord but also with the character of fixed habitation therein. By merely saying that he is a Mundkar obviously this is not enough to be so held. The learned Counsel then urged that in the instant case the very definition of the expression "Mundkar" in the Act under section 2(p) would involve two aspects, namely, (1) to see that the petitioner could in the facts and circumstances of the case make any claim of Mundkarship right from 1964 and (2) whether whatever she said and stated in evidence could be accepted as reliable material thus concerning the petitioner's very credibility. According to the learned Counsel here was a case wherein the house of the landlord, that is to say, the owner of the land, in respect whereof the petitioner claims the right of Mundkarship has a compound wall enclosing his backyard. Within the compound which encircles the house of the landlord there are three self-contained houses which means three independent residential units one of which is occupied by the petitioner purportedly as Mundkar of the respondents, the owners of the land. The learned Counsel contended that for this Court to exercise writ jurisdiction under Article 227 it was incumbent that the evidence which the petitioner has produced before the Mamlatdar so as to substantiate a plea of Mundkarship should deserve any credit or acceptability. The learned Counsel has drawn my attention that as per the submissions made in this Court by the petitioner's counsel, the petitioner is claiming to be the Mundkar of the new structure which she is occupying allegedly right from 1964 as a Mundkar. According to the learned Counsel in the year 1964 as per the prevailing law for the purpose of a person being declared a Munkdar one had to be, besides being a resident in the landlord's property, a watch or ward of that property. Therefore, in view of the very pleadings of the petitioner in the year 1964 no relationship of Mundkar and bhatkar could have come into existence in the facts and circumstances of the case. At the most, the learned Counsel contended, the petitioner could have satisfied the definition of Mundkarship and changed herself into a Mundkar in the year 1976 when the new Act came into force. Further and with reference to the lease deed dated 27-3-1950 admittedly executed by the late husband of the petitioner with the original landlord of the property it was submitted that the same is meant to create a lease in favour of two lessees in respect of one and single house. It is the case of joint lessees of the lessor and all that has been done and created by the aforesaid deed is that of a situation in which a part of the leased house was allowed to be used by the lessor as a bakery and the other for the purpose of warehouse. Thus the rent to be paid as per what was stated in its clause is that the part used as a bakery could fetch rent of Rs. 8/- while the remaining Rs. 2/- as a result whereof the consolidated rent works at Rs. 10/-. My attention was invited to Clause (4) of the deed and a submission made that nowhere has been mentioned in the deed that each of the lessees had to give up their corresponding portion of the house if they do not desire to continue the lease because being a joint lease in the case any of them did not want to continue in the house, the whole house had to be surrendered by the lessees.
With reference to Clause (8) of the agreement it was submitted that from the above it could be clearly made out that the lessor had an intention to put up a new construction at the place of the leased old premises which was actually demolished sometime in 1964 or 1966 and a new structure was built. Thus admittedly in 1967 the old structure was no more and therefore the so-called document of extension of that year could not obviously relate to a property which did not exist. The learned Counsel stated that this was a case wherein the old structure which was leased was replaced by a new one and in respect whereof the lessee has continued as a tenant on the strength of the old agreement. Therefore, according to the learned Counsel, if there was a different relationship other than the previous one giving to the lessee a new type of status in respect of the replaced structure which he started occupying, this would have been expressly stipulated in the contract. Further and with regard to the petitioner's contention that the Indian Registration Act came into force somewhere in 1965, more particularly, on 1-11-1965, it was contended on behalf of the respondents that the submission of the petitioner's Counsel that between 1965 and 1969 the Transfer of Property Act was regulating the leases is not correct. According to the learned Counsel the Transfer of Property Act was only a general law applicable and till the Rent Act was extended to this State it was the Decree No. 43535 which was in force as a special law which could not have been repealed by general law. In this regard the learned Counsel urged that whether the tenancy had been created for a period of 1 year or 10 years this was immaterial because once the original period expired the lessee would continue to be a tenant holding over. In other words, a statutory tenant and the only difference between the two situations would be that the holding over tenant would not enjoy all the benefits of the Rent Act, namely, the security of its tenure. Besides, according to the learned Counsel, even assuming that the document of 1967 was required to be registered as per the provisions of the Indian Registration Act any failure in doing that registration could not come on the way of the validity of a document so as to be held that the lease was to continue on month to month basis. The learned Counsel, however, contended that the document of 1967 was not any document creating a new lease or even extending the original lease but only a declaration made by the parties before the Revenue Office for the purpose of the payment of tax due on account of the extension of the old agreement. By that document the parties were making known to the concerned authority their willingness to renew the lease on the same Terms and Conditions. The learned Counsel argued that the petitioner never said that the signature on the document of 1967 was not the signature of her late husband but, on the contrary, the petitioner herself has relied on the same document in her application. There was thus no forgery of the signature contained therein.
7. Further and with regard to the credibility of the petitioner the learned Counsel submitted that if one goes through the deposition of the petitioner itself it can be seen that she has again reiterated that she was residing in the suit property for the last 35 years as Mundkar. However, she admitted that the said property is surrounded by a compound wall but denied that her husband was residing in the old house as a tenant. She has admitted that out of the three new structures, two were constructed by the landlord and its occupants are paying rents to him. The learned Counsel then wondered as to how the petitioner could claim that a different relationship of Munkdar for the petitioner had been created in respect of the third structure occupied by her when it could not be disputed that at the relevant time to be a Mundkar one had to be watch and ward of the property wherein a person wanted to stay in such capacity and admittedly the new structure occupied by her was located within the compound wall encircling the property of the landlord and on the very backyard of his house. According to the learned Counsel it would be inconceivable that the landlord could allow the petitioner to occupy the house in such circumstances as his Mundkar since there was no necessity at all for him to keep a watch and ward in the land wherein he himself was residing. The learned Counsel thus submitted that all this shows that the petitioner does not deserve any credibility and therefore both the Collector and the Administrative Tribunal were justified in holding that there was no reason to believe her claim before the Mamlatdar. The learned Counsel vehemently contended that this was a case in which a new structure had been given by the landlord to the tenant of the old house to occupy it in place of the old house which had been leased which house had to be demolished to enable the landlord to erect his new residence in the property without this fact having changed the previous relationship of the occupant as lessee which fact was otherwise accepted by the Collector and upheld by the Tribunal. Besides, the learned Counsel urged, under Article 52 of the Decree No. 43535 the renewal of the lease created under the written agreement of 1950 was automatic and therefore the respondents need not have to prove anything more rather than the existence of the old agreement. Obviously the respondents could not prove the lease by way of receipts of rent because these were to remain only with the tenant and thus the tenancy could be established by the landlord only on exhibiting the agreement of lease. The learned Counsel also referred to a sinister attempt made by the petitioner to concoct evidence in favour of her case when she stated in evidence that during his lifetime her late husband told her that he was not staying in the suit house as a tenant. The learned Counsel argued that this statement of the petitioner appears to be totally false because it is hard to believe that her husband could have anticipated the situation which justified the petitioner to approach the Mamlatdar's Court and, admittedly, the cause of action occurred for her only after his death.
Another aspect sought to be focused by the learned Counsel was that the impugned order of the Mamlatdar was passed in Mundkar Case No. 10 of 1978 and at that time, because there were many cases pending with him, he had sought transfer of part of his work-load to the Additional Mamlatdar. This fact has been pleaded by the respondents in their memo of appeal to the Collector. While seeking for the transfer the Mamlatdar has sent to the Collector a list of cases which were to be transferred to the Additional Mamlatdar. However and inspite of the permission which was granted to the Mamlatdar by the Collector to transfer the cases included in the list to the Additional Mamlatdar, the Mamlatdar retained this case with him and disposed it fast which fact can be seen from the date of the judgment which is dated 30-4-1984 and the date of the order of the transfer which is dated 11-4-1984. In support of this contention the learned Counsel has produced a copy of the order of the Collector dated 11-4-1984 allowing the transfer of the cases including the case of the petitioner in view of the no objection received from the concerned parties. It was also contended by the learned Counsel that in view of the definition of 'Mundkar' in section 2(p) of the Act it was obvious that for a person to be held as a Mundkar one has to prove not only that he is residing with the consent of the Bhatkar in a house located in his land but also that he occupies the said house as his fixed habitation. Hence, the argument of the learned petitioner's counsel that it was sufficient for him to prove only lawful occupation and nothing else had to be proved by the Mundkar was clearly impermissible. The learned Counsel invited my attention to the Explanation to the definition clause and contended that under the said explanation a person occupying a house in the landlord's property within one year prior to the appointed date and against whom no proceedings had been instituted by the Bhatkar on the ground that he was a trespasser or having initiated such proceedings has not succeeded in obtaining a decree for his eviction could be deemed only to be lawfully residing in the property of the landlord with his consent. This definition could not create any presumption for the petitioner that for the simple reason of the allegedly deemed consent of the landlord for her stay in the suit house she was to be held as a Mundkar. According to the learned Counsel the expression 'Bhatkar' and 'dwelling house' used in the Explanation was incorrect. It was contended that the proper words should be 'owner' instead of 'Bhatkar' and 'house' instead of 'dwelling house'. He tried to explain this by saying that if the owner was filing a suit against the occupant of the house in his land on the ground that he was a trespasser obviously there could not exist between him and that person any relationship of Bhatkar and Mundkar. For all purposes at the time of the filing of the suit the owner of the property was holding the occupant not as a Mundkar but merely as a trespasser. Similarly, as far as the word 'dwelling house' the definition of 'dwelling house' in Clause (i) of section 2 is shown as meaning a house in which a Mundkar resides with a fixed habitation. This means that dwelling house implies already a relationship which was not intended by the owner of the land. What the Explanation aims is to create a presumption of a deemed lawful consent of the owner of the house to the occupation of the said house by the one who is living therein. Therefore, the burden cast upon the Mundkar to prove that he was occupying the house with the consent of the landlord for his fixed habitation had to be fully discharged because the party which approached the Court had to establish his case in respect of all the legal requirements prescribed in the relevant statute. The learned Counsel in answer to the petitioner's contention that the respondent No. 1 in his deposition had admitted the existence of two leases against payment of separate rents submitted that the legal relationship between the late husband of the petitioner and the respondents was created by a document in the year 1950. As such any interpretation of the lease agreement was purely a point of law. Besides the agreement had been signed by the late owner of the property Jose Furtado who died and was thus not alive when his heir Aulio Vaz had given his deposition. Therefore, the learned Counsel urged, whatever he has stated in this respect could not change the real meaning and scope of the lease agreement of 1950.
The learned Counsel lastly opposed to any remand of this case to the Mamlatdar as sought for by the petitioner and contended that there is no question of such remand since the Tribunal's order although sketchy and not happily worded, as far as the formulation of the relevant issue sub judice is concerned, has correctly upheld the findings of the Collector which are based on the evidence properly assessed by him.
8. I have considered the rival submissions of the learned Counsel and in my view none of the grievances raised by the petitioner against the Tribunal's order appears to be sound or available to her.
9. Admittedly the petitioner claimed in her application before the Mamlatdar that she was staying as Mundkar in the property belonging to the respondents along with her husband and children for more than 35 years and that she along with her husband who died some two years prior to the application and her children were formerly residing in the same property in a house at a distance of about 20 to 25 metres from the present house. The petitioner and her children and one aunty started living in the new house as Mundkars in the year 1964 because the respondents had demolished the former house and allowed her and her late husband to construct a new house for which the former landlord contributed with some compensation. This being the position it was incumbent on the petitioner to plead and prove in terms of section 2(p) of the Act her full case of Mundkarship, namely, that she was lawfully residing in the house with the consent of the Bhatkar or the landlord, in this particular case, the respondents, and that her residence in that house was with the character of fixed habitation.
10. Indeed, the petitioner seems to seek to take advantage of the legal presumption made available for those claiming Mundkarship rights in the Explanation to section 2(p) to show that she had fully discharged the burden cast upon her to prove that she is living in the suit house as a Mundkar. However, if this Explanation helps here only as far as the requirement of lawful occupation of the premises is concerned, by virtue of the presumption of deemed consent by the landlord which it creates, the fact remains that the petitioner has nowhere pleaded or proved that besides this lawful occupation she was living in the suit premises as her fixed habitation. The petitioner had certainly to make such plea and lead evidence in this regard. In other words, it was required on the part of the petitioner to show that the suit structure was her only residential abode and there was no other house available to her and/or to her children to stay. However, the notes of evidence recorded by the Mamlatdar and which were placed before me by the petitioner's learned Counsel reveal that in her deposition the petitioner has clearly admitted that her husband who was residing at Curtorim prior to his occupation of the old house in the suit property was having his own house at Curtorim which, by itself, rules out the possibility of the petitioner claiming to occupy the suit house as her fixed habitation so as to make it a dwelling or Mundkarial house within the meaning of Clause (i) of section 2 of the Act.
11. This apart and from the circumstance already pointed out by Shri Bruto D'Costa of the exercise indulged by the petitioner in her application before the Mamlatdar regarding vital facts which is patently different from the stand taken by her learned Counsel it is seen that since the very beginning the petitioner and her husband are purported to have started living in the property of the landlord, about 35 years age, as Mundkars. It was even in this capacity that, according to the petitioner herself, they were occuying the old structure which was demolished and replaced by the new one. The learned respondents' counsel is therefore justified in arguing that this conduct of the petitioner in blatantly distorting the admitted position that a lease agreement was executed by the petitioner's late husband Francisco on 27th March, 1950 with the landlord in respect of the old structure existing therein and which started being occupied by them since then till the shifting took place in 1964 casts a serious doubt on the very credibility of the petitioner and of the case sought to be made out with regard to her alleged status of Mundkar in respect of the suit premises.
12. It is the case of the petitioner's learned Counsel that once it was proved by the petitioner that she was occupying since about 1964 the house where she is living with a deemed lawful consent of the landlord she is bound to be declared as Mundkar because there is nothing to show that the said occupation was permitted against the payment of any consideration to the landlord. It is further the petitioner's case that the respondents have also not been able to substantiate their contention that the said occupation was of a lessee and that if any lease might have been operating in respect of the old house which was demolished, however, after its demolition there is nothing to substantiate that the said leases continued in respect of the new house.
13. Indeed the petitioner seems to dispute the genuineness of the document of 1967 from which it is shown that both the parties to the lease agreement of 1950 have expressed their willingness to extend the operation of the original lease of 1950 in the same Terms and Conditions. The factual position at that time was that although the lease agreement dated 1950 is in respect of the old structure admittedly when the document of 1967 was executed the same had been already demolished and replaced by a new one. Therefore this same document has to be understood in its proper perspective and in the actual context of the circumstances then prevailing since it cannot be conceived that such document could have intended by the parties to relate to a property which did not exist.
14. It is nobody's case that at the time of its execution any situation which allegedly prompted the petitioner to raise the claim of mundkarship before the Mamlatdar could have been even visualized by the landlord so as to create in our mind a least doubt that the same document was sought to be fabricated for a hidden purpose and the petitioner also at no time has disputed that the signature in the aforesaid document is not of her late husband Francisco.
15. It thus stands to reason to hold as sound and deserving acceptance the submission of the learned respondent's counsel that this appears to be a clear case of an understanding reached between the landlord and the tenant of the demolished old house whereby it has been agreed, otherwise in terms of one of the clauses of the lease itself, that at the time of the construction by the landlord of his new house the lessee should vacate the leased premises and occupy the new one which the landlord had erected for this effect. Being so it seems obvious that when the petitioner and her late husband were made to occupy the new house the same old relationship was to continue and if any different situation was intended or contemplated by the parties the same would have been expressly stipulated in any contract or document, namely, in the document of 1967.
16. On the other hand the facts brought on record, namely, through the evidence of the petitioner herself with regard to her admission that the suit house is situated on the backyard of the landlords' own residence and within the very compound which encircles the suit property goes to strongly suggest that, when the petitioner and her husband shifted to the said house irrespective of the question as to who has actually borne the cost of its construction, there was no question of the petitioner or her late husband going to stay therein as watch and wards of the property which at the relevant time was one of the main requirements for the purpose of a person being declared as a Mundkar. It is true that the declaration of mundkarship sought for by the petitioner in 1978 is to be dealt with in terms of the new prevailing law but, in my view, this circumstance seems to be irrelevant for the purpose and in no manner is going to disturb the reasonable conclusion that the fact by itself is likely to cast serious doubts on the very probability of the petitioner's case as well as on the credibility of the evidence led by her in support of her claim of mundkarship with regard to the suit house.
17. This being the position I am unable to appreciate the contention of the learned petitioners counsel that once it was proved by the petitioner that she was the lawful occupant of the suit house it was for the respondents to establish that such occupation was by way of tenancy so as to bring the petitioner within the exclusion category of sub-clause (i) of Clause (p) of section 2 of the Act. The petitioner has obviously failed to establish that, besides that requirement of lawful occupation in view of the legal presumption of deemed consent, she was living in the suit house also as its fixed habitation.
18. On the other hand both documentary and other evidence on record substantially corroborate the case of the respondents that the petitioner and her late husband shifted their residence to the suit premises after the demolition of the old house wherein they were living as tenants consequent upon the deed of lease dated 27-3-1950 and went to stay there since then also as lessees in continuation of the same old agreement. In this regard, obviously, the respondents were supposed to prove that the petitioner was a lessee only by the consideration of the existence of a lease agreement which ostensibly was executed by the landlord with the late husband of the petitioner although it refers to the old house which they were originally occupying. After its demolition and the construction of the suit premises the respondents have sought to produce a declaration to establish that the old agreement continued to subsist on the same Terms and Conditions. The said declaration is shown to have been signed by the petitioner's husband. The petitioner although disputing the validity and genuineness of this document nowhere has denied that the signature appearing in the same was not of her husband or that the document is forged and fabricated one. It was otherwise difficult for the petitioner to say so because the document ostensibly is shown to have been registered in the Taluka Revenue Office and contains the signature of the then Secretary of the Fazenda too. The records of the case reveal that the original lease had been extended or renewed by way of an endorsement made by the said Secretary of the Fazenda. Thus the document of 1967 is to be construed as amounting to a valid declaration made by the concerned parties in the agreement of lease as a pre-requisite for such an endorsement to be made in respect of the renewal of the old agreement of 1950 for a further period of 3 years. This document has been admittedly executed after the demolition of the old structure and since it purports to refer to an agreement concerning the same the inescapable conclusion is that both the parties in the old agreement have intended and meant, by that document, that the renewal was related to the new structure occupied by the petitioner and her late husband after the same replaced the old one.
19. I have therefore no hesitation in holding that the said document of 1967 is a perfectly valid document to prove that the lease executed by the late husband of the petitioner with the owner of the old house continued in respect of the new house by mutual consent of the parties. Indeed it does not lie in the petitioner's mouth to contend now that merely because the old tenanted house was demolished by the owner who replaced it by a new house for its occupants the petitioner and her husband went to stay in the new structure as Mundkars of the same landlord. Obviously the respondents could not be in a position to prove payment of rents by the petitioner and/or her husband through receipts of such payments because the same are to be necessarily in their possession. The respondents through evidence led by their witnesses have conclusively proved that the husband of the petitioner had always paid some consideration to the landlord for the occupation of the house. This evidence has not been able to be rebutted by the petitioner so much so in view of the inconsistent stand taken by her in this whole affair the question of her own credibility becomes doubtful with regard to the relevant requirements which she was supposed to prove in order to establish, on the basis of the evidence available, her case of mundkarship in respect of the new house.
20. The learned Counsel for the petitioner has sought to attack the validity of the document of 1967 on the ground that the same could not be accepted in view of the lack of its registration in terms of section 49 of the Indian Registration Act. According to the learned Counsel at the most such evidence could be accepted to suggest only a permissive occupation of the house by the petitioner's husband on the strength of such document. The submission is, however, impermissible in view of the fact that in the year 1967 leases were still being governed by Decree No. 43535 which came to be repealed only by virtue of section 59 of the Rent Control Act, 1968 and according to its Article 52, the same were deemed to be automatically renewed on the expiry of the lease period. But even assuming that Decree No. 43535 on this point was not in the field, as contended by the petitioner's learned Counsel, and the provisions of the Transfer of Property Act would come into play it cannot be disputed that if a tenant is in possession of leased premises for a fixed period of time at the end of that period he continues to be a tenant holding over. Further and in case it is to be held that registration of the document of 1967 was required in terms of the Indian Registration Act that would not also prevent that the document could be considered as valid as a lease operating on a month to month basis.
21. It thus follows that the judgment of the Administrative Tribunal affirming the judgment of the Deputy Collector, although sketchy and quite cryptic, need not be faulted with insofar as both the decisions appear to have properly assessed the material facts and upheld the correct law with due application of mind while arriving at the finding that no case of mundkarship has been able to be made out by the petitioner on the basis of the evidence available on record. Nothing therefore survives in this petition which is thus to be dismissed. Rule accordingly discharge with costs.