-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 5 OF 2007 1. Shri Resurreicao alias Roberto Pereira since deceased by his legal representatives: (a) Shri Seby Bosco Pereira (b) Shri Willy Pereira (c) Kum. Nelly H. Pereira All residents of House No.101, Comba, Margao-Goa. 2. Smt. Maria Ines Pereira, r/o House No.101, Comba, Margao-Goa. ... Appellants V e r s u s 1. Shri Santosh N. Naik 2. Smt. Usha Santosh Naik, both r/o House No.141/B, Comba, Margao. 3. The Asstt. Engineer, Sub-Division VI, Electricity Department, Vidyut Vhavan, Aquem, Margao, Goa. 4. State of Goa through its Chief Secretary, with Office at Secretariat, Panaji-Goa. ... Respondents Shri A. F. Diniz, Advocate for the Appellants. Shri S. G. Bhobe, Advocate for Respondent Nos.1 and 2. -2- CORAM : F. M. REIS, J. DATE : 11TH AUGUST, 2011. JUDGMENT The above Appeal challenges the Judgment and Decree dated 30.08.2006, passed by the learned Addl. District Judge, South Goa, Margao, in Civil Suit no. 170 of 2004 (New). 2. The suit came to be filed by the Appellants for declaration, mandatory injunction and other reliefs on the ground that there exists a property which is known as “Bogtancho Dando” alias “Comba”, which corresponds to 1/25th of the property described in the Land Registration Office at Margao under no. 34497 which was purchased by the father of the Appellant no.1 in the name of his brother namely Antonio Francisco Pereira, by virtue of a Deed of Sale dated 14.02.1934. It is further their case that half of the property was sold by the said party to the Appellant no.1 by virtue of a Deed of Sale dated 18.11.1967 and in view of the Deed of Rectification, the western portion of the said property belongs to the Appellants and the eastern portion belongs to the said Antonio Francisco Pereira. It is further the case of the Appellants that in the said property, there existed a structure which formed an outhouse which was repaired by the Appellant no.1 and his brother. The said outhouse is surveyed in the said Survey Records under Chalta no. 42, 43, 44, 45, 46, 47 of P. T. Sheet no. 209. It is further their case that the Appellant no.1 allowed the father of the Respondent no.1 to use and occupy -3- one room on Leave and Licence basis on payment of Licence Fee of Rs.25/- per month. The said room bears House no. 141/B and is surveyed under Chalta no. 42 of P. T. Sheet no. 209. It is further their case that in May 2001, the Appellants terminated the Licence and, consequently, the said father of the Respondent no.1 and his family vacated the said room. It is further their case that after termination of the said Licence, the occupation by the Respondent of the suit premises is illegal and that they are trespassers in the suit premises. It is further their case that despite of termination of the said Licence, the Respondent no.1 approached the Respondent no.3 to obtain electricity connection. It is further their case that as the occupation of the said Respondents is illegal, they are entitled for mesne profits at the rate of Rs.500/- per month on such illegal occupation. Accordingly, the suit came to be filed praying, inter alia, for a declaration that the occupation of the Respondent nos. 1 and 2 in the said premises is unauthorised and illegal and for a Decree to vacate the suit premises and hand over the suit premises to the Appellants besides a permanent and mandatory injunction. 3. The Respondent nos. 1 and 2 filed their written statement and claimed, inter alia, that the suit premises was leased out to the father of Respondent no.1 about 35 years back and that the Respondents are residing in the said premises as lawful tenants. The said Respondents also disputed the contention of the Appellants that his father Narsinha Naik and his family had vacated the suit premises and that only the said Respondents were occupying the suit premises. It is their case that the said Respondents always paid the monthly rent regularly to the Appellants. For the reasons stated in the said written -4- statement, the Respondents submitted that the suit be dismissed. 4. The Respondent no.3 also filed their written statement and claimed that the suit has been filed on false grounds and prayed that the suit be dismissed. 5. The learned Judge after framing the issues and recording of evidence, by the impugned Judgment and Decree dated 30.08.2006, dismissed the suit filed by the Appellants. The learned Judge, whilst passing the impugned Judgment, has noted that it was the claim of the Appellants that the suit premises were given on Licence basis to the father of the Respondent no.1 and that the said Respondents are their Licensees whereas the Respondents claimed that they are the tenants of the suit premises. The learned Judge has found that admittedly a Licensee has no right to continue in possession after the Licence is revoked. But, however, as the Respondent nos. 1 and 2 are in possession of the suit premises for the last 35 years and they were paying an amount of Rs.25/- per month towards such user, the learned Judge found that the Respondent nos. 1 and 2 were in settled possession of the suit premises for a long time and refused to believe the claim of the Appellants that the Respondent nos. 1 and 2 are their licensees. The learned Judge also found that the Respondent nos. 1 and 2 were in actual possession of the suit premises and, as such, they were entitled to the electrical connection. The learned Judge further found that whether the Respondents are tenants of the suit premises, cannot be decided by the Civil Court and, for that purpose, they have to approach the authorities under the Rent Control Act. The learned Judge as such found that the Appellants have failed to establish their case -5- and, consequently, dismissed the said suit. Aggrieved by the said Judgment, the Appellants have preferred the present Appeal. 6. Shri A. F. Diniz, the learned Counsel appearing for the Appellants has essentially assailed the impugned Judgment on the ground that the learned Judge whilst deciding the issue no.3 has wrongly come to the conclusion that he had no jurisdiction to decide as to whether the Respondents are the tenants or not of the suit premises. The learned Counsel further submitted that the case of the Appellants is that the father of the Respondent no.1 was the Licensee and that the occupation of the Respondents is that of a trespasser in the suit premises after revocation of the said licence. The learned Counsel further submitted that despite of the fact that the father of the Respondent nos. 1 and 2 had vacated the suit premises in the year 2001, the Respondent no.1 was illegally occupying the suit premises as a trespasser and, as such, is liable to vacate the suit premises. The learned Counsel further submitted that whilst deciding issue no.1, the learned Judge has erroneously come to the conclusion that merely because the Respondents were in settled possession of the suit premises, they cannot be considered to be Licensee therein. The learned Counsel further submitted that the learned Judge has not at all scrutinized the evidence on record nor appreciated the material adduced by the Appellants to substantiate their claim that the Respondents were trespassers in occupation of the suit premises. The learned Counsel further submitted that there is no application of mind by the learned Judge to the real matter in controversy and, as such, has erroneously dismissed the suit filed by the Appellants. The learned Counsel has further taken me through the -6- pleadings of the Appellants and pointed out that at Para 7 of the plaint, there is a specific plea that the said Respondents were trespassers in the suit property. The learned Counsel has taken me through the issues framed by the learned Judge and pointed out that the issue no.1 has been wrongly framed and, as such, prejudice has been caused to the case advanced by the Appellants. 7. On the other hand, Shri S. G. Bhobe, the learned Counsel appearing for Respondent nos. 1 and 2 has supported the impugned Judgment. The learned Counsel has taken me through the finding of the learned Judge and pointed out that the learned Judge has come to a correct conclusion that the Respondents were in settled possession of the suit premises. The learned Counsel has further pointed out in fairness that the findings of the learned Judge on issue no.3 are not in accordance with law. But, however, it was his contention that it is well settled that the learned Judge had jurisdiction to decide as to whether there was any tenancy in favour of the Respondent no.1 as claimed by him in the suit. The learned Counsel further submitted that considering that the Respondent nos. 1 and 2 were the tenants of the suit premises, the question of seeking an eviction before the Civil Court would not arise as such remedy, if available to the Appellant is before the Rent Control Act and, as such, there is no infirmity committed by the learned Judge in dismissing the suit filed by the Appellants. 8. Having heard the learned Counsel and on perusal of the record, the following points for determination arise in the present Appeal : -7- POINT FOR DETERMINATION 1. Whether the issues framed by the learned Judge deserves to be re-framed on the basis of the pleadings of the parties ? 2. Whether the learned Judge was justified in dismissing the suit filed by the Appellants ? 9. Dealing with the first point for determination, the first issue framed by the learned Judge is as to whether the Appellants prove that the Respondent nos. 1 and 2 are licensees in the suit premises and that they had revoked the said licence? At para 7 of the plaint, it is the case of the Appellants that the occupation of the said Respondents is that of a trespassers in view of the fact that the Licensee was the father of the Respondent no.1 who had vacated the suit premises on termination of such Licence. There is nothing in the pleadings of the Appellants to suggest that it was their case that the Respondent nos. 1 and 2 were the Licensees of the suit premises. The case advanced by the Appellants was that the father of the Respondent no.1 was a Licensee and that the Respondent nos. 1 and 2 were illegally occupying the premises after the licence came to be revoked. As such, I find that the issue no.1 has not been reframed in accordance with the pleadings of the parties. Shri S. G. Bhobe, the learned Counsel for the Respondent nos. 1 and 2 also did not dispute the said aspect before this Court. The first point for determination is answered accordingly. 10. Dealing with the second point for determination, I find that the learned Judge has not at all scrutinised the evidence on record produced by the parties in support of their respective claims. It was incumbent upon the learned Judge to -8- discuss the evidence adduced by the Appellants as well as the Respondent nos. 1 and 2 and ascertain as to whether the claim put forth by them can be accepted on the basis of the material on record. The learned Judge has not at all dealt with the evidence of the parties on record whilst passing the impugned Judgment. Merely drawing inferences on the basis of the evidence to hold that the Respondent nos. 1 and 2 are in settled possession of the suit premises, would not by itself dis-entitle the Appellants to put forward their claim for restoration of possession in case they are so entitled. The finding of the learned Judge to the effect that the Court has no jurisdiction to decide as to whether the Respondent nos. 1 and 2 are not the tenant of the suit premises, is also erroneous and not in accordance with law, as fairly conceded by the learned Counsel Shri Bhobe for the Respondents. 11. Considering the evidence on record and the submission of the learned Counsel, I find, in the interest of justice that, it would be appropriate that the impugned Judgment be quashed and set aside and the matter be remanded to the learned Judge to decide the suit afresh after hearing the parties in accordance with law. At this stage, both the learned Counsel pointed out that the issues are to be reframed on the basis of the pleadings of the parties. After framing of such issues, in case any of the parties want to lead further evidence, liberty is given to both the parties to file a proper application to that effect and the same will be considered by the learned Judge in accordance with law. All contentions raised by the parties are left open. The second point for determination is answered accordingly. -9- 12. In view of the above, I pass the following : ORDER (i) The Appeal is partly allowed. (ii) The impugned Judgment and Decree dated 30.8.2006 is quashed and set aside. Civil Suit no. 170 of 2004 is restored to the file of the learned Addl. District Judge, Margao. (iii) The learned Addl. District Judge is directed to decide the said suit afresh in the light of the observations made hereinabove in accordance with law. (iv)All the contentions of the parties are left open. (v) The Appeal stands disposed of accordingly with no orders as to costs. (vi)Parties to appear before the learned Judge on 19.09.2011 at 10.00 a.m. F .M. REIS, J. arp/*