ATCHUT DATTA NAIK DALAL Vs. VASANT TILU SHIRODKAR

JUDGEMENT

(1.) THE substantial question of law which arises for consideration in this case is whether a Municipal licensee who in consideration of agreeing to pay extra rent, is permitted to extend the leased premises on the adjoining area which is used by another person on payment of sopo charges can such licensee on such extension being done, be allowed to occupy the extended area to total exclusion of such another person.

(2.) THE facts in brief relevant for the decision are that the appellant, who is the original plaintiff in Special Civil Suit No. 46/84, filed the said suit claiming that he is a businessman having his shop at New Market in the Municipal building known as "pavelhao Grande No. 1"; that the said shop was granted on lease to the appellant since 1936 and on southern side of the said shop there is a Margao Station Road whereas on the western side there is an open cemented space which forms part of Margao new Market; that the shop of the appellant has two doors, one opening on the station road and the other towards the western side; that the appellant had not been using regularly the door on the western side as there was no need to do so in view of the other door facing the station road; that in the open space many persons had been sitting for business purposes and they were paying sopo charges to Margao Municipal Council for such temporary occupation; that on an application made by Haji Mohidin and other including the appellant, Margao Municipal Council granted permission to occupy the open space in the Margao Municipal Market as a matter of extension of their respective shops and permitted to raise the structure with doors and shutters and to occupy such area on payment of rent of Rs. 7/- per month; that as per the said permission the appellant raised the extension on the western side of his shop in the open space corresponding to the door on that side with a rolling shutter, that before such permission was granted and the said extension was made, the respondent had been sitting in the open space; that on 13th October, 1982 the respondent interfered with the extended portion and tried to forcibly occupy the same. The respondent on the other hand contended that Margao Municipal Council had permitted the occupants of the space inside the market to fix shutters to their sopos and to occupy the additional space in the market and the respondent is one of such occupants; that the open space on the western side occupied by the respondent was for running his retail business; that the respondent on an application moved by said Haji Mohidin, collectively put wooden frames in front of their sopos alongwith others and covered the roof with new corrugated sheets and fixed shutters towards the entrance in the said area; that the shutter of the sopo of the respondent was got fixed by one Suresh Sony from where the shutters were purchased and the payment thereof was made by the respondent; that the respondent was forcibly dispossessed from the said area on 5th November, 1982 by the appellant and thereafter pursuant to the order of the trial Court he was restored to the area.

(3.) THE trial Court dismissed the suit by its Judgment and Decree dated 7th April 1986 and aggrieved by the same the appellant preferred an appeal before the District Court, Margao, which came to be heard by the Additional District Judge at Margao, who by his Judgment and Decree dated 18th July, 1994 dismissed the appeal.