MARIA TECLA GOES PEREIRA Vs. DENZYL LOBO

JUDGEMENT

(1.) THIS second appeal is directed against the judgment of the learned Addl. District Judge, Panaji, dated 16th December, 1987 in Regular Civil Appeal No. 5 of 1986 whereby he affirmed the judgment and decree of the learned Civil Judge J. D. , Mapusa dated 30-11-1985 in Civil Suit No. 128/84. That was a suit for declaration, title and permanent injunction filed by the respondent No. 1 (hereinafter called the respondent) against the appellant and the late respondent No. 2/p ascoal Goes. It was partly decreed by the trial Court as a result of which the respondent was declared tenant of two rooms with a carpet area of 37 sq. metres in respect of a demolished building belonging to the appellant and entitled to possession of equal area in the new building erected in its place on rent to be determined as per the provisions of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (hereinafter called the Act ). An appeal filed by the appellant and the late respondent No. 2 Pascoal was dismissed by the learned Addl. District Judge by judgment which is under challenge in this second appeal. The respondent claims to be a tenant of the ground floor consisting of a room of the building bearing No. M-8/16 belonging to the appellant and two rooms of another building bearing No. M-13/17 also belonging to her and situated at Mapusa. He claims that the tenancy was created somewhere in the year 1966 by one Pascoal Goes who according to him was managing these two buildings. It appears that Pascoal was the appellants father. The tenancy was not for respondents residence but for commercial use meant for recharging batteries. Admittedly there is no written instrument or lease executed between the respondent and the said Pascoal nor rent receipts were regularly issued by Pascoal to the said respondent. The respondent has pleaded that neither Pascoal nor the appellant gave him any receipt. However, he purported to produce two written documents being P. W. 1/a Colly, being one a writing which on one side there are some calculations made by the respondent admittedly in his own handwriting with regard to some rents in respect of "goes House" while on the other side there is some acknowledgment with regard to the receipt of an amount of Rs. 170/- purportedly signed by Pascoal. The other documents consists of a letter dated 15-11-1972 which the respondent alleges to be a notice sent to him by Pascoal for his failure in timely paying the rents of the leased premises. From these documents the respondent wants the Court to infer the existence of a tenancy relationship between him and the appellant as evidence of a lease agreement entered into by Pascoal on behalf of the appellant with the said respondent. Later on and after the respondent returned from the Gulf where in he was living at the time the relationship was established by pascoal with the respondent the appellant-landlady demolished the premises i. e. both the buildings and it seems that in its place two new buildings came up. The respondent claims an equal area in the new buildings and the stand taken by the appellant is that the respondent is not at all her tenant and as such the question of giving him an equal area in the new construction does not arise.

(2.) THE respondent therefore filed the aforesaid suit against pascoal and the appellant wherein he has prayed that he be declared tenant of the ground floor of the building No. M-8/16 and of the two rooms of the building No. M-13/17 and also a permanent injunction to restrain the appellant and Pascoal, their agents, etc. from commencing the construction of the new building in place of the old building. An additional prayer for compensation was also sought for by him. In his plaint the respondent has stated that Pascoal was managing the two houses for a number of years and in this capacity has leased the respective portion of the two houses to him about nine years back for a monthly total rent of Rs. 45/- being Rs. 25/- in respect of the ground floor of house No. M-8/16 and in respect of house No. M-13/17 for an amount of Rs. 20/ -. the respondent thus does not say in his plaint that Pascoal had any authority or power of attorney to create a tenancy on behalf of the appellant and what he avers in the plaint is that Pascoal was only managing the two houses belonging to her. In his written statement the appellant has denied the pleadings of the respondent and stated that since she was out of Goa for some time Pascoal who is her father was just looking after her houses. The appellant has expressly challenged Pascoals authority to create any lease on her behalf and on behalf of her husband who is also the owner of the houses. As such she denied that there was lease of any kind either oral or written between the respondent and the appellant either personally or through her father Pascoal and asserted that the respondent never paid to her any rent in respect of the suit premises. It is further the case of the appellant that Pascoal allowed to the respondent merely a temporary occupation of one room of building bearing No. M-8/16 without payment of any rent or compensation which since then was admittedly in his possession but the respondent thereafter forced entry in other two rooms of the adjoining building bearing No. M-13/17 which were both in a dilapidated conditions. The appellant had purchased those buildings for the purpose of its reconstruction and in order to erect a new building in its place meant for her residence after she and her husband returned from the Gulf.

(3.) ON behalf of the appellant several contentions were advanced by Shri Kakodkar, learned Senior Advocate, which were sought to be met with by the respondents learned Senior Counsel Shri Usgaonkar who also has urged several counter contentions in this respect.