SH. PELICIO DSOUZA Vs. SH. DAMIAO DCOSTA

JUDGEMENT

(1.) This second appeal is directed against the judgment of the learned District Judge, Panaji, dated 2nd Sept., 1988 which has affirmed the dismissal of the suit filed by the appellant by the learned Civil Judge, Junior Division, Mapusa in Civil Suit No. 77/79. The appellant has filed the said suit on 27.4.1979 for eviction for the respondent from the suit room and for mesne profits from 11.3.1979.

(2.) It was the case of the appellant that he had allowed the respondent to use the suit room for inning a bar by mere tolerance from the year 1968 on humanitarian grounds without accepting any compensation. The said structure was part of an old house existing in the appellant's property known as 'Tontem' or 'Velichem Tembe' or Ventenchem Temba', situated at Gauravaddo of Calangute. The said house collapsed except for the suit room. In the Year 1964 the appellant constructed the room after obtaining building licence from the Bardez Municipality. Thereupon in 1968, the respondent who had been evicted from the premises which he was occupying to run a 'tavema' in the property of one Salvador de souza, approached the appellant and prayed that he should be allowed to carry on his business of 'taverna' in the suit room. The appellant allowed the respondent to occupy the suit room because he has been earlier his plucker on compassionate grounds without payment of any rent or compensation. However on 18.2.1979 the respondent without obtaining the appellant's permission decided to retile the roof of the suit room by replacing the old country tiles with Mangalore tiles and also cemented the front portion of the room. Therefore the appellant served a notice on the respondent dated 28.2.1979 terminating the licence granted to him since he did not any longer desire to permit the respondent to occupy the said premises and directing him to vacate the room within seven days. As the respondent failed to comply with the terms of the notice, since 11.3.1979 he is in wrongful occupation of the room as a trespasser. The respondent is therefore bound to pay to the appellant Rs. 50.00 per month as he would have to pay as rent if he had occupied the room on lease. He therefore prayed that the respondent be evicted from the suit room with a direction to hand over its peaceful possession to the appellant with a further prayer that pending disposal of the suit he should be made to pay mesne profits to the appellant of Rs. 50.00 per month.

(3.) The respondent resisted the suit claiming that he was a tenant of the premises. His case was that he had taken the suit room on rent from the year 1961 and that the initial rent was Rs. 3/- per month which subsequently was increased to Rs. 5.00 per month and this was adjusted towards the drinks which the appellant used to have at the tavern which was running in the said premises. His further case is that it was the respondent who had been asked to leave the room which he was occupying in the property of Salvador de Souza and asked the appellant's permission to reconstruct the suit room at his own cost and occupy the same for running his tavern, on payment of monthly rent of Rs. 3/- which the appellant agreed. Accordingly the respondent constructed all the walls of the room and put a complete new roof. For the first four years the rent was paid regularly to the appellant at the rate of Rs. 3/- per month and thereafter increased to Rs. 5.00 per month and which rent was adjusted towards drinks which the appellant used to have at his tavern.