1 IN THE HIGH COURT OF BOMBAY AT GOA Second Appeal No.59 of 2009 and Civil Appeal No. 200 of 2009 Dr. Sunanda Narendra Bhangui Through Attorney Dr. Narendra Bhangui , aged about 67 years, occupation, doctor, “Lintus” Building, Shop NO.3, Church Road, Curcorem, Goa represented herein by her constituted Attorney Dr. Narendra Bhangui, son of Bhanudas R. Bhangui, aged 68 years, occupation : doctor, r/at Flat no.4, Anusuya Building, Durganand Nagar, Curchorem, Goa ..... Appellant V e r s u s Justino Vaz, aged about 68 years, retired represented by his attorney Luis Justino Vaz, son of Justino Vaz, major in age, residing at House No.841 (B), Morailem, Curchorem, Goa. ..... Respondent. Coram: A. P. Lavande, J. Date: 21st September,2010. ORAL ORDER: Heard Mr. Sardessai, learned counsel for the appellant and Mr. Pangam learned counsel for the respondent. 2 2. By this second appeal the appellant has challenged the two decrees ordering her eviction and granting mesne profits. The appeal is admitted on the following substantial questions of law: i) Whether the Courts below committed illegality in directing the appellant to deposit an amount of Rs.50/- per day as compensation/damages for the alleged unauthorised use w.e.f 11.12.2001 till the possession of the suit premises is handed over, in the absence of there being any quantification in the pleadings on evidence with that regard on record and further in the absence of any finding or discussion on the said issue in the impugned judgment and decree more in view of the fact that the agreement pursuant to which the appellant/appellant's predecessor was inducted in the suit premises cast an obligation on the appellant to pay only Rs.150/- for the whole month? ii) Whether the findings of the courts below that the suit property was given to the Appellant/Appellant's predecessor on Leave and Licence basis, is perverse for having totally ignored the fact that the appellant was in possession of the suit premises after the death of the original alleged Licensee and the respondent had in fact accepted the monthly amounts from the appellant towards the suit shop without any demur or reservation form the date of death of the said alleged licenses till December 2001? iii) Whether the finding of both the courts below that the 3 transaction between the father-in-law of the appellant and the respondent was that of leave and licence is perverse? 3. In so far as interim relief is concerned there is no dispute that the appellant has paid the amounts due in respect of the suit premises till 11.12.2001. Admittedly, the appellant has not paid any amounts in respect of the suit premises to the defendants thereafter. Both the Courts below have granted mesne profits at the rate of Rs.50/- per day which has been challenged by the appellant on the ground that neither issue has been framed nor any evidence has been led in support of the mesne profits. Considering that the suit premises are situated at Curchorem and the same admittedly admeasures 23 sq.metres, I am of the considered opinion that the equities between the parties shall be balanced, if the appellant is directed to deposit an amount of Rs.1.00 (one lakh only) for the period from January 2002 till September, 2010 and the appellant is further directed to deposit the amount at the rate of Rs.1500/- (Rupees one thousand five hundred only) every six month. 4. The execution of the impugned decrees is stayed subject to the appellant depositing in this Court the amount of Rs. 1.00 lakh within a period of 6 weeks from today and subject to the appellant depositing in this Court the amount of Rs.1500/- (Rupees one thousand five hundred only) per month, beginning from October, 2010 till the disposal of the appeal on or before 10th of every month. Failure to deposit the amount of Rs.1.00 lakh and/or the amount, as directed, at the rate of Rs.1500/- per month shall entail in vacation of the interim relief. 4 5. The amounts deposited shall be invested in Nationalized bank, initially for a period of one year, which shall be renewed from time to time. 6. The appellant shall not change the nature of the suit property nor create any third party interest in respect of the suit property. 7. In view of the above order, the civil application no. 200/2009 stands disposed of. A. P. Lavande, J. Ap/- 5