1 IN THE HIGH COURT OF BOMBAY AT GOA Second Appeal No.53 of 2001 1. Godfree Cardozo, 2. Felix Cardozo and his wife, 3. Viva Cardozo or Biserla Megerle, 4. Gladys Cardozo, 5. Mary Cardozo, 6. Benjamim Cardozo, bachelor, major, 7. Amita Cardozo, spinster, 8. Annie Cardozo, spinster, major, All r/o Murda Grande, Nuvem, H.No.90, 9. Anthony (Antonio) Cardozo, r/o Murda Pequeno, Nuvem, H.NO.18, 10. Fr. Caitano Cardozo, bachelor, major, r/o Mardol Church, 11. Leopoldina Cardozo and her husband' 12. Peter Joanes, 13. Liberio Cardozo (Mariano Liberio Cardozo), and his wife 14. Bella Cardozo, All those r/o Murda Pequeno, Nuvem, H.No.18. .... Appellants 2 V e r s u s Francis Borges, (Indo Eng. Works Service Centre) vis-a-vis Post Office, Povoacao, Nuvem, Salcete, as also C/o Rosada Santana Noronha, Nurse, Borda, Margao. ..... Respondent. Ms. S. Mordekar, Advocate for the Appellants Mr. S.S. Kakodkar, Advocate for the Respondent. Coram: A. P. Lavande, J. Date: 30th September, 2010. ORAL JUDGMENT: By this appeal the appellants takes exception to the judgment and decree dated 8/3/2001 passed by the District Judge, South Goa, in Regular Civil Appeal No. 87/1999 dismissing the appeal preferred by the appellants against the judgment and decree 3/8/1999 passed by the Civil Judge Junior Division, Margao in Regular Civil Suit no.193/92/C. 3 2. The appellants are the legal representatives of the original plaintiffs Fr.Caitano Piedade Santana Cardoz who filed the suit against the respondents seeking compensation of Rs.200/- per month from June 1990 to November, 1990 and Rs.250/- per month from December, 1990 onwards till handing over of the suit area and also demolishing and removal of the shed structure erected therein. The plaintiffs also sought cancellation of the agreement dated 4/6/1990 and eviction of the defendants. The parties hereinafter shall be referred to as per their status before the trial Court. 3. The defendant resisted the suit and he claimed that he was in possession and in occupation of the property mentioned in the agreement for the last about 15 years as tenant. The defendant also contended that he was a tenant under the Rent Control Act. On the basis of the pleadings of the parties the following issues were framed: 4 1. Whether the plaintiff proves that by agreement dated 4.6.1990, he allowed the defendant to occupy the suit property? 2. Whether the plaintiff proves that the defendant failed to honour the terms of th agreement by non-payment of the compensation? 3. Whether the defendant proves that he is the tenant of the suit premises? 4. In Regular Civil Suit no.193/92/C the plaintiff examined Caetanho Piedade Cardozo, PW.1 who produced the agreement dated 4/6/1990 and the notice issued to the defendant Antonio B. Cardoz,PW.2, Lucy Cardozo, PW.3 and Sebastiao Paes, PW.4. The defendant examined himself and Rosario D'Mello, Dw.2. The trial Court upon appreciation of the oral and documentary evidence led by the parties held that the defendant was the tenant of the suit premises from 1986 onwards and consequently the 5 Civil Court had no jurisdiction to decided the suit. Being aggrieved by the judgment passed by the trial Court, the appellants herein preferred Regular Civil Appeal No. 87/1999 to the District Court. The District Court framed the following points for determination: a) Whether the plaintiffs have proved that the transaction between the original plaintiff and the defendant was only for an area of land and not for the shed/structure? b) Whether the transaction is of leave and licence or of lease/tenancy of building? c) What relief, what order? 5. The lower Appellate Court re-assessed the evidence and held that the agreement dated 4/6/1990 was not a mere Leave and License Agreement but held the relationship created by the said document was of lease i.e of landlord and tenant. The lower Appellate Court consequently dismissed the appeal. 6 6. Ms. Mordekar, learned counsel appearing for the appellants submitted that both the Courts below have totally misconstrued the agreement dated 4/6/1990 and have come to th conclusion that the respondent is the tenant in respect of the structure existing in the property of the appellants. She further submitted that the evidence on record clearly suggests that initially the defendant was given permission to occupy a portion of the plaintiff's property on payment of compensation and merely because he was permitted to erect the structure the same did not amount to creation of lease between the parties. She further submitted that the findings given by both the Courts below that the relation between the plaintiff and the defendant was of a landlord and tenant is absolutely unsustainable in law and therefore the decrees passed by both the Courts below deserve to be quashed and set aside. According to Ms. Mordekar since the defendant was only permitted to occupy a portion of the plaintiff's property to 7 carry out his business in the year 1986, it was a case of licence and not lease and as such, the transaction between the parties was governed by provisions of Decree no. 43, 525 and not The Goa Rent Act. 7. Per contra, Mr. Kakodkar, learned counsel for the defendant submitted that there are concurrent findings of fact and both the Courts below have come to the conclusion that the relationship created by the said document between the parties is of landlord and tenant and therefore the decrees passed by both the Courts does not deserve any interference in the second appeal. He further submitted that both the Courts below have correctly assessed the oral and documentary evidence led by the parties and have come to correct conclusion and as such no interference is warranted. 8. I have considered the rival submissions and 8 perused the record. 9. The second appeal was admitted on the following substantial questions of law: i) Whether the Courts below were right in dismissing the suit on the ground that Civil Court has no jurisdiction? ii) Whether Rent Control Act is applicable in respect of lease of open plot of land or such lease is governed by provisions of Decree no.43,525? iii) Whether in view of law laid down by this Hon'ble Court in case of Gangadhar N. Agarwal V/s. Alina D'Costa E. Pinto and others (1989 (2) Goa Law Times) the judgments of Courts below can be sustained? iv) Whether Civil Court has jurisdiction to grant eviction of a person who holds plot of land on lease.? v) Whether agreement dated 4/6/1990 is an agreement 9 of license and not of lease? 10. As stated above, both the courts below have interpreted the agreement dated 4/6/1990 entered between the parties and have come to the conclusion that the same created relationship of landlord and tenant between them. Bare perusal of the agreement dated 4/6/1990 relied upon by the petitioner discloses that much prior to the agreement the defendant no.1 had erected the shed of cement sheets, which was subsequently dressed with stones, comprising an area of 8 x 3 sq.mtrs for the purpose of repairing motor vehicles and for which he was paying the amount to the original plaintiff. Clause 6 of the agreement stipulates that the defendant was not allowed to transfer in favour of any other person the use or ownership or occupation of the said structure or the business carried on therein. Clause 9 stated that no tenancy was created between the first and second party by the said agreement. 10 The agreement further provided that the the first party had right to enter the said structure in order to inspect the same. It also provided the first party was not handing over the possession of the respective portion of land occupied by the structure to the second party. It also provided that at the end of two years, stipulated in this agreement, or in case of its rescision prior to that, the second party shall remove all the materials of the said structure, keeping the land underneath in its original position. It is pertinent to note that the plaintiff in the suit claimed that the defendant was allowed to occupy temporarily the said structure from 4/6/1990. The averments in the plaint are contrary to the agreement. Therefore the question whether the respondent was occupying the premises of the plaintiff with permission from the year 1986 on licence basis does not assume much relevance in view of the agreement entered between the parties subsequently. The plaintiff in a suit is expected to come to the Court with correct facts without 11 any suppression thereof. Be that as it may, the fact remains that in terms of the agreement the possession of the structure was given to the defendant on payment of Rs. 200/- per month which was to be increased to Rs.250/- per month. Therefore, in my considered opinion the findings recorded by both the Courts that the relation between the parties were of landlord and tenant cannot be faulted. Atleast by virtue of the agreement entered into between the parties on 4/6/11990 the relationship of the landlord and tenant was created. Once it is held that the relationship of landlord and tenant was created between the parties by virtue of the agreement the findings recorded by both the Courts below the defendant was protected under the Rent Act cannot be faulted. Under the Rent Act a tenant is protected and his eviction can be secured only on the grounds mentioned under the Act. 11. In view of the above, I do not find any merit in 12 any of the submissions of Ms. Mordekar, learned counsel for the appellants. Both the Courts below have rightly held that the relations between the parties was that of landlord and tenant. Consequently, the findings given by both the Courts below on this issue cannot be faulted. 12. In view of the above discussion all the substantial questions of law formulated are answered against the appellants. 13. Although it has been not specifically argued one point appears to have been missed by both the Courts below. The plaintiff in the suit claimed compensation at the rate of Rs.200/- per month from June 1990 to November, 1999 and Rs.250/- per month from December, 1990 till handing over of possession. The suit was filed in November,1992. 13 14. Both the Courts below gave the finding that relation between the parties was of landlord and tenant, but both the Courts have not given any reason as to why the amount claimed by the plaintiff has not been awarded. Although both the Courts below were right in holding that there was relationship of landlord and tenant between the parties, both the courts have clearly erred in not granting the amount claimed in prayer clause (a) of the plaint. Even if the defendant is held to be a tenant in respect of the suit structure he was bound to pay the amount to the plaintiff in terms of the agreement dated 4/6/1999. To that extent both the courts below have erred in rejecting the prayer clause (a). Therefore, while holding that the relationship between the parties was of landlord and tenant the plaintiff is held entitled to recover of the amount at the rate of Rs.200/- per month form June 1990 to November, 1990 and at the rate of Rs.250/- from December, 1990 till September, 1992. The defendant is liable to pay the said 14 amount to the plaintiffs. 15. For the reasons aforesaid, the appeal is partly allowed. The findings of both the Courts that the relationship between the parties was of landlord and tenant is maintained. However, the defendant is ordered to pay Rs.6700/- with interest thereon at the rate of 6% per annum from the date of of filing of the suit till payment. 16. The appeal stands disposed of in the aforesaid terms with no order as to costs. A. P. Lavande, J. Ap/-