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2001 DIGILAW 977 (BOM)

CATARINA FERNANDES v. VICTORIA GONSALVES

2001-11-29

P.V.HARDAS

body2001
JUDGMENT :- This Second Appeal was admitted on the following substantial questions of law:- 1. Whether failure to pay enhanced rent as demanded by the landlord could be a ground for eviction as alleged in the plaint? 2(i). Whether during the pendency of the suit, the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, has been extended to the area where the suit property is situated? (ii). If so, whether the plaintiff is entitled to an order of eviction having regard to the provisions of the Act? (iii). If, the Rent Act is not applicable, whether the landlord is entitled to an order of eviction without properly determining tenancy by giving a valid quit notice? 2. The facts necessary for the decision of the Second Appeal are set out hereunder:- Regular Civil Suit No. 77173/D was filed on 19th March, 1973, against the original defendant Nos.1 and 2. The original defendant No.2 expired during the pendency of the litigation and his legal heirs were brought on record. The original defendant No. 1 and the legal heirs of the original defendant No.2 are the Appellants in the present Appeal. The respondents in the present Appeal are the original plaintiff No.2 and the legal heirs of plaintiff No. 1. The learned Civil Judge, Junior Division, Panaji, by his Judgment and Decree dated 19th February, 1992, dismissed the suit of the plaintiffs. Being aggrieved by the said dismissal, the original plaintiffs filed Regular Civil Appeal No. 15 of 1992 before the Additional District Judge at Mapusa, who by his Judgment and Decree dated 20th April, 1995, allowed the Appeal, set aside the Judgment and Decree of the Trial Court and decreed the suit. It is the Judgment and Decree passed by the learned lower Appellate Court that is assailed in the present Second Appeal. 3. The plaintiffs had filed the suit contending that the property known as "Padriphem Batta", bearing Land Registration No. 13644 and Revenue No. 114, situated at Neura, originally belonged to one Jose Higino Raul de Noronha and the same was purchased by the plaintiffs by Sale Deed dated 7th July, 1965 for valuable consideration of Rs. 1,500/-. 3. The plaintiffs had filed the suit contending that the property known as "Padriphem Batta", bearing Land Registration No. 13644 and Revenue No. 114, situated at Neura, originally belonged to one Jose Higino Raul de Noronha and the same was purchased by the plaintiffs by Sale Deed dated 7th July, 1965 for valuable consideration of Rs. 1,500/-. It was the case of the original plaintiffs that in the said property, there was a house which was alternatively used by Original Defendants for the manufacture of bread on a daily rent of two loaves of bread, which agreement remained in force till the filing of the suit. According to the plaintiffs, the said house admeasures approximately 120 sq. metres and the land on which the said house was constructed would have fetched to the plaintiffs over Rs. 50/- per month if the said land was to be brought under cultivation. Since, the agreed rent was very meagre, the original plaintiff No.1 called upon the original defendants to execute a Deed fixing the rent at Rs. 50/- per month, failing which a suit for ejectment would be filed against them. The defendants despite the receipt of the notice from the original plaintiffs did not comply and the suit was filed, 4. The plaintiffs prayed for :- "(a) for a decree directing the defendants to acknowledge that since they did not appear on the stipulated place within the stipulated time for the alteration of the rent, they are bound to quit and vacate the said house and to pay to the plaintiffs mesne profits equal to the rent which was fixed by the said notice i.e. Rs. 50/- per month. (b) Consequently, for a decree of eviction directing the defendants to quit and vacate the suit house within such time as this Honble Court may fix, and to deliver its vacant possession to the plaintiffs. (c) for a decree directing the defendants to pay mesne profits with effect from 15th January, 1973 at the rate of Rs. 50/- per month". 5. The original defendants resisted the claim of the plaintiff by filing their written statements wherein it was contended that the original defendant No. 2 was a mundkar. No rent had been paid in respect of the suit premises. 50/- per month". 5. The original defendants resisted the claim of the plaintiff by filing their written statements wherein it was contended that the original defendant No. 2 was a mundkar. No rent had been paid in respect of the suit premises. The suit house was constructed by the original defendant No.2 in the year 1928 and since then, he had been carrying on the business of his bakery therein and was also residing in the suit house along with his family members. It was further stated in the written statements that it was a system during the Portuguese regime and even now prevalent in Goa, that one baker cannot run the bakery by himself for the entire year and, therefore, the defendant No.2 had inducted the father of the original defendant No.1 as a partner of the said bakery and after the death of the father of the original defendant No.1, the original defendant No.1 stepped into his shoes and continued the business of the bakery along with original defendant No.2, alternatively for a period of 4 months each. It was the case of the original defendants that they were running the bakery business in the suit house ever since prior to the purchase of the property by the original plaintiffs. A plea had been set up by the original defendants in their written statements that at the time of constructing the suit house, the father of the defendants had made it very clear to the predecessor in title of the original plaintiffs that the house was meant both for residential purpose as well as for manufacture of bread and the plaintiffs and predecessor in title had agreed to the same and by way of mund, the father of the defendants had agreed to pay the said predecessor in title and the plaintiffs two breads everyday. According to the defendants, the tendering of two breads everyday was never on account of payment of rent but was on account of mund. It was his case that the father of the defendant was a mundkar and as such, the plaintiffs are not entitled to demand any rent or execution of the lease from the defendants. 6. The learned Trial Judge on the basis of the pleadings of the parties framed six issues. It was his case that the father of the defendant was a mundkar and as such, the plaintiffs are not entitled to demand any rent or execution of the lease from the defendants. 6. The learned Trial Judge on the basis of the pleadings of the parties framed six issues. The first issue was whether the plaintiffs prove that the defendants were paying two loaves of bread per day as rent of the house occupied by them, by an agreement renewed every year from the month of January and that the said rent is being paid up to now by the defendants to the previous owner Maria Alice as an usufruct on the property. The second issue was whether the plaintiffs prove that from the land wherein the house stands, they could get a rent of Rs. 50/- per month as the same lies at the side of the road and in good locality and also if the land is cultivated, they could earn Rs. 50/- per month. The third issue was whether the plaintiffs are entitled to the relief claimed in the suit. The fourth issue was whether the defendants prove that the suit house has been built by defendant No.2 and by the father of defendant No. I at their own cost with the consent of the previous owner Aquino Noronha, about 48 years back, for their residence as well as for the industry of bakery. The Fifth issue was whether the defendants prove that they are mundkars in respect of the said house and that the payment of two breads per day to the bhatkar is not a rent but is the payment on account of mund. The sixth issue was whether the defendants prove that it is a practice with all the bakers in Goa to reside in such houses during the period of their business only and the seventh issue was whether the defendant No.2 proves that during his young days, he used to render his services to the previous owner by doing various types of work at his residence. 7. The plaintiff and the defendant No.2 examined two witnesses each and the learned Trial Judge after appreciating the evidence recorded a negative finding in respect of the first two issues and an affirmative finding in respect of issues 4 to 7. Thus, the learned Trial Judge dismissed the suit. 7. The plaintiff and the defendant No.2 examined two witnesses each and the learned Trial Judge after appreciating the evidence recorded a negative finding in respect of the first two issues and an affirmative finding in respect of issues 4 to 7. Thus, the learned Trial Judge dismissed the suit. In respect of the first issue, the learned Trial Judge has held that since the plaintiff had not constructed the suit house after she had purchased the property, therefore, there was no iota of evidence on record to show that the defendants were paying rent in kind of two breads per day to the previous owner Maria Alice as an usufruct on the property. In respect of the second issue, the learned Trial Judge held that the area where the suit bakery is existing had been converted for non agricultural purposes even from the year 1928 and it was not a fit place for cultivation. In respect of issue No.4, the learned Trial Judge relied on the testimony of D.W.1, who was the son of deceased original defendant No.2 that the original defendant No.2 had constructed the suit house in the year 1928 at his expenses. The learned Trial Judge also relied upon the documentary evidence produced by D.W.1 of Form No.3 which is the index of land at Exh. DW1/A, which showed that the suit house was owned by the defendant NO.2 and the ration card at Exh.DW1/B which showed that he is running a bakery/restaurant for which he is supplied/sold commodities. Reliance was also placed on the house tax receipt at Exh.DW1/C which acknowledged the receipt of house tax paid to the Village Panchayat, Neura by the deceased, original defendant No.2. On the basis of this material, the learned Trial Court came to the conclusion that the defendants had succeeded in proving that the suit house had been built by defendant No. 2 at their own cost. In respect of issue No.5, the learned Trial Court relied on the Judgment of the Judicial Commissioner, at Exh.DW1/C, in Special Civil Application No. 158 of 1978, assailing the Judgment of the Mamlatdar of Tiswadi Taluka holding the Petitioner not to be a mundkar. The learned Judicial Commissioner by his Judgment dated 23rd June, 1982, dismissed the Special Leave Application (Writ Petition) No. 158 of 1978. The learned Judicial Commissioner by his Judgment dated 23rd June, 1982, dismissed the Special Leave Application (Writ Petition) No. 158 of 1978. According to the learned Trial Court, the learned Judicial Commissioner had held that the Mamlatdar should have held enquiry under the Mundkar Act which came into force from 1976 and should have passed orders under the new Mundkar Act of 1975. According to the learned Trial Court also, the learned Judicial Commissioner had not held that the deceased original defendant No.2 was not a mundkar and, therefore, the question of mundkarship still remained undecided. Therefore, according to the learned Trial Court, the original defendant No.2 was a mundkar and answered issue No. 5 in the affirmative. In respect of issue No.6, the learned Trial Court held that the house means and includes a structure connected with business or profession and, therefore, said bakery can be used as residence during the business. In respect of issue No.7, the learned Trial Judge accepted the evidence of D.W.1 and the plaintiffs had admittedly purchased the property in the year 1963 and were not aware about the services rendered by the defendants to their predecessor in title. The learned Trial Judge, therefore, dismissed the suit of the plaintiff. 8. The learned lower Appellate Court by its Judgment and Decree dated 20th April, 1995, allowed the Appeal filed by the plaintiffs and decreed the suit. The learned lower Appellate Court held that in view of the Judgment of the Mamlatdar and the Judgment of the learned Judicial Commissioner, the original defendant No.2 cannot be considered as a mundkar and, therefore, the finding of the learned Trial Judge in respect of issue No.5 was incorrect. The learned lower Appellate Court held that since the defendants were paying two loaves of bread per day as consideration of the occupation of the land and since the defendants were held not to be mundkars, the said payment of two loaves of bread to the owner of the property by the defendants shall have to be treated as by way of rent and not mund. The learned lower Appellate Court also held that the defendants had failed to prove the ownership of the suit house as the defendants had failed to produce any licence issued by the local Panchayat to prove that the suit house had been constructed by the defendants. The learned lower Appellate Court also held that the defendants had failed to prove the ownership of the suit house as the defendants had failed to produce any licence issued by the local Panchayat to prove that the suit house had been constructed by the defendants. According to the learned lower Appellate Court, mere payment of house tax and electricity bills by the defendants does not create any title or right over the suit house in favour of the defendants. The learned lower Appellate Court also held that the provisions of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 was not applicable to Neura Village in the year 1973 when a suit for eviction was filed. The learned lower Appellate Court then proceeded to hold that since the original defendants had failed to get themselves declared as mundkars in respect of the suit house from the competent authorities, the plaintiffs had established their case and, therefore, they were entitled to the reliefs as claimed for in the suit. The learned lower Appellate Court, therefore, allowed the Appeal, set aside the Judgment and Decree of the learned Trial Court and decreed the suit of the plaintiff. 9. Mr. S. G. Dessai, the learned Senior Advocate appearing for the Appellants has submitted that by virtue of Notification No. RD/BLDG/77/69-II. dated 23rd December, 1980, the provisions of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 had been made applicable since that date to Neura where the suit property is situated. Thus, during the pendency of the litigation before the learned Trial Court, the provisions of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, in short referred to as the Rent Act for the sake of brevity, were applicable. 10. Mr. M. B. da Costa, the learned Advocate appearing for the respondents has also stated that during the pendency of the suit the provisions of the Rent Act had been extended to the area where the suit property is situated. Thus, in respect of the substantial questions of law at 2(i), I hold that during the pendency of the suit, the provisions of the Rent Act had been extended to the area where the suit property is situated. 11. Thus, in respect of the substantial questions of law at 2(i), I hold that during the pendency of the suit, the provisions of the Rent Act had been extended to the area where the suit property is situated. 11. In respect of the substantial questions of law whether failure to pay enhanced rent as demanded by the landlord would be a ground as alleged in the plaint. It is submitted before me by the learned Advocate appearing for the Appellants that under Decree 43525 such a ground is not available. 12. According to Mr. S. G. Dessai, the learned Senior Advocate appearing for the Appellants, the plaint refers to an unilateral decision taken by the plaintiffs for enhancing the rent. The prayer clause (a) refers to a decree of declaration that as the defendants had not appeared at the stipulated place within the stipulated time for the alteration of rent, they are bound to quit and vacate the suit house. According to the learned Advocate appearing for the Appellants, the Decree No. 43525 does not carve out that on failure to pay the enhanced rent as demanded by the landlord, the tenant could be evicted. According to the learned Advocate appearing for the Appellants, there could in law be no unilateral alteration to the terms of the tenancy at the behest of the landlord. 13. Mr. M. B. da Costa, the learned Advocate appearing for the respondents has placed before me a translation of Article 80 of Decree No. 43525. Both the Advocates agree that this translation from Portuguese to English is authentic. The said Article 80 of Decree No. 43525 is reproduced hereunder :- Art. 80 of Decree No. 43525 7. The landlord may at the end of the period of 5 Years of the lease increase the rent. The quantum of rent shall be fixed by mutual consent, or, if there is no consent, by valuation under Art. 107. 8. The lessee who does not accept the increase may vacate the premises at the end of the period without any right to compensation or renewal provided in this Decree. 9. The notice to increase the rent shall be given 3 months before the end of the said period and shall call upon the lessee to accept within 30 days from the date of receipt. 10. 9. The notice to increase the rent shall be given 3 months before the end of the said period and shall call upon the lessee to accept within 30 days from the date of receipt. 10. If the lessee, after having been given notice of the increase, neither vacates as provided in the paragraphs nor pays the new rent the landlord shall have the right to rescind the contract under Art.46-A. 11. The increase, when fixed by mutual consent, shall be recorded in the respective title documents in their possession, which shall thereafter be presented within the period fixed for the initial deed in the Revenue Office of the respective Taluka, which after making an endorsement of the increase in the triplicate of the document or on the notarial copy in their respective possession shall return the same to the presenter with the respective endorsement. 14. Perusal of Clause 1 of Article 80 would show that after a period of 5 years, the increase in the quantum of rent can be fixed either by mutual consent or by valuation under Article 107. Clause 2 of Article 80 refers that ales see who does not accept the increase may vacate the premises at the end of the period. Clause 3 of Article 80 refers to a notice to increase the rent may be given before the end of the said period, calling upon the lessee to accept the increase within 30 days of the receipt of the said notice. Clause 4 of Article 80 provides that if the lessee after having received the notice contemplated under Clause 3, neither vacates nor pays the new rent, the landlord shall have a right to rescind the contract under Article 46-A. Clause 5 of Article 80 provides that in case the rent is increased by mutual consent, the same shall be recorded in the respective title documents etc. 15. Relying on Clauses 3 & 4 of Article 80, it is submitted by Mr. M. B. da Costa, the learned Advocate appearing for the respondents that the plaintiffs had given a notice to the defendants regarding increase of rent and as the defendants had neither vacated the suit house nor had they paid the new rent, the plaintiffs were entitled to a Decree of eviction. M. B. da Costa, the learned Advocate appearing for the respondents that the plaintiffs had given a notice to the defendants regarding increase of rent and as the defendants had neither vacated the suit house nor had they paid the new rent, the plaintiffs were entitled to a Decree of eviction. Clauses 2 to 4 of Article 80 provide or cater to a situation which may arise after the increase in the rent under Clause 1 of Article 80. Clause 1 of Article 80 provides increase in the rent either by mutual consent or by valuation under Article 107. Clause does not contemplate any unilateral increase in the rent. It is not averred in the plaint that the increase in the rent demanded by the plaintiffs was as a result of either mutual consent or valuation under Article 107. That being the case, the very foundation of the plaintiffs case is weakened. On the basis of the prayer which was made in the plaint, the plaintiffs could not have succeeded in getting an eviction Decree on the ground that the defendants had failed to pay the enhanced rent and, therefore, the plaintiffs were entitled to a Decree of eviction. Thus, in respect of the substantial questions of law at item 1, I hold that failure to pay enhanced rent, if the rent was enhanced unilaterally by the plaintiffs, would not be a ground available for evicting the tenant. 16. In respect of the substantial questions of law at item 2(ii) whether the plaintiffs are entitled to an order of eviction having regard to the provisions of the Rent Act, it is submitted by Mr. M. B. da Costa, the learned Advocate appearing for the respondents that the Courts below can take into consideration the provisions of the Rent Act of 1968. According to him, the provisions of section 21 and 22 of the Rent Act provides a ground to the landlord for evicting the tenant. 17. My attention is invited to section 59 of the Rent Act which repealed the provisions of Decree 43525 and Legislative Diploma No. 1409. The provisions of section 59 read as under ;- 59. Repeals and savings. 17. My attention is invited to section 59 of the Rent Act which repealed the provisions of Decree 43525 and Legislative Diploma No. 1409. The provisions of section 59 read as under ;- 59. Repeals and savings. - (1) As from the date on which this Act is brought into force in any local area, the provisions of Decree No. 43525, dated the 7th March, 1961, and Legislative Diploma No. 1409, dated the 14th February, J 952 and the corresponding provisions of any other law for the time being in force shall stand repealed in that area. (2) Notwithstanding the repeal of the laws by sub-section (1), all suits and other proceedings under a repealed law pending at the commencement of this Act before any Court or authority shall be continued and disposed of in accordance with the provisions of the repealed law as if that law had continued in force and this Act had not been passed. Provided that in any such suit or proceeding for the fixation of fair rent or for the eviction of a tenant from any building, the Court or other authority shall have regard to the provisions of this Act. Provided further that the provisions for appeal under repealed law shall continue in force in respect of suits and proceedings disposed of thereunder. The proviso to sub-section 2 of section 59 amply makes it clear that the Court or the authority before whom such suits or proceedings either for fixation of fair rent or for eviction of a tenant from any building are pending shall have regard to the provisions of this Act. The question which remains to be answered is whether the plaintiffs were entitled to an order of eviction having regard to the provisions of the Rent Act. 18. Mr. M. B. da Costa, the learned Advocate appearing for the respondents, relying on sections 21 and 22 has contended that the defendants had set up a plea that they were mundkars and not tenants and consequently sections 21 and 22 furnished a ground for evicting the tenant. 18. Mr. M. B. da Costa, the learned Advocate appearing for the respondents, relying on sections 21 and 22 has contended that the defendants had set up a plea that they were mundkars and not tenants and consequently sections 21 and 22 furnished a ground for evicting the tenant. The proviso to section 21 reads as under :- "Provided that where the tenant denies the title of the landlord or claims a right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this Chapter even though the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded". 19. The proviso to section 22(ii)(g) provides thus :- "That the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building; and if the Controller is not so satisfied he shall make an order rejecting the application". 20. Perusal of the proviso to section 21 would show that it is not mere denial of title of the landlord or the claim of the tenant of a right of permanent tenancy that furnishes the ground for eviction. The proviso contemplates that only on the Controller recording to a finding that the denial or the claim is not bona fide, the landlord may sue for eviction. Section 22(ii)(g) also provides that in the event, the claim of the tenant for right of permanent tenancy or the denial of title of the landlord is not bona fide, the landlord may seek to evict the tenant. Thus, what is contemplated by these two provisions is a finding to be arrived at by the Courts that either the denial of the title or the claim for permanent tenancy which is set up by the tenant is not bona fide. "Bona fide" in the present sense would mean where setting up of such claim is not genuine/justified or is vexatious. 21. "Bona fide" in the present sense would mean where setting up of such claim is not genuine/justified or is vexatious. 21. In the present case, neither the Trial Court nor the Appellate Court have recorded any finding in this behalf. Apparently, it seems this point was also not urged before the Trial Court or the lower Appellate Court. At the stage of Second Appeal, such point cannot be allowed to be raised in order to defend the Judgment of the lower Appellate Court. In fact, the learned lower Appellate Court has recorded a finding that the original defendants were the tenants and were paying rent of two loaves or bread. In the face of this finding, the respondents cannot be permitted to urge that the defendants had denied their title and were, therefore, trespassers and the plaintiffs were entitled to a Decree of eviction. 22. Since, the Appellate Court has recorded a finding that the defendants were tenants and as the ground of non payment of enhanced rent enhanced unilaterally by the landlord, was not available to the plaintiffs for seeking a Decree of eviction, it follows that the tenants/defendants could not have been evicted without determination of their tenancy in accordance with law. The Judgment of the learned lower Appellate Court, therefore, according to me, cannot be sustained. 23. In the result, therefore, the Second Appeal is allowed on the substantial questions of law as framed and the Judgment and Decree of the learned lower Appellate Court, dated 20th April, 1995, passed in Regular Civil Appeal No. 15 of 1992 is hereby quashed and set aside and the Judgment and Decree of the learned Civil Judge, Junior Division, Mapusa, dated 19th February, 1992, passed in Regular Civil Suit No. 77173/D, dismissing the plaintiffs suit is restored. Thus, the plaintiffs suit No. 77173/D stands dismissed. There shall be no order as to costs. Appeal allowed.