Oral Judgment: 1. Heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants and Shri Bhobe, learned Counsel appearing for the Respondent. 2. The above Appeal came to be admitted on the following substantial question of law by Order dated 06.01.2010: i) Whether the learned First Appellate Judge District Judge-I, Panaji, erred in holding that the respondent/defendants had inherited the tenancy right in respect of suit shop as legal heirs of deceased late Sakharam Bhikaro Naik and as such could not be evicted from the suit premises on the basis of the pleadings of the defendants that they are tenants of the suit premises in their own right without spelling out the facts indicating the inheritance of the tenancy right? ii) Whether the first appellate Court misdirected itself in concluding that the tenancy was commercial on the basis of the facts that the premises were let out for business purpose and not on the basis of user of the said premises? 3. Briefly, the facts of the case as stated by the Appellants, are that the Appellants are the owners of a property bearing chalta no. 10 of P.T. Sheet no. 146 of City Survey of Mapusa, Bardez, Goa. The said chalta number was leased by the Appellants on 08.12.1983, in favour of Sakharam Bicaro Naik. After the death of said Sakharam, Shri Chandrakant Bicaro Naik who was the original defendant in the suit, started occupying the suit shop without any consent of the Appellants. It is further their case that said Chandrakant sent a reply, to the notice served on him by the Appellants on 19.06.2001 calling upon him to vacate the suit premises; that the suit shop as well as the licenses were already transferred in his name. He also raised a claim that he was the tenant of the premises. Accordingly, the suit was filed by the Appellants, inter alia, on the grounds that the Respondent has no right to occupy the said premises upon the death of said Sakharam and, as such, sought for the eviction of the Respondent. The written statement came to be filed by the Respondents, inter alia, contending that he was the brother of the said Sakharam and was carrying out his business in the suit shop as he was handicapped and as such the business was being carried out in the name of said Sakharam. The written statement came to be filed by the Respondents, inter alia, contending that he was the brother of the said Sakharam and was carrying out his business in the suit shop as he was handicapped and as such the business was being carried out in the name of said Sakharam. It is further their case that the Agreement for lease was executed in the name of Sakharam as the business was carried out in his name and upon his death, as he was a bachelor, the son of said Chandrakant continued to carry out said business. It is also the case of the Appellants that the Court had no jurisdiction to entertain the suit as there was landlord and tenant relationship between the Appellants and the Respondent. 4. After issues were framed and recording of evidence, by Judgment and Decree dated 15.11.2008, the suit filed by the Appellants came to be decreed. An appeal was preferred before the Appellate Court which was disposed of by Judgment dated 16.04.2009 whereby the Appeal was allowed and the impugned Judgment passed by the Courts below was set aside. Being aggrieved by the Judgment passed by the Appellate Court, the Appellants preferred the above Appeal which came to be admitted on the aforesaid substantial question of law. 5. Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants, has raised the following contentions in support of the aforesaid substantial question of law. The learned Senior Counsel has first contended that the Respondent has not pleased in the written statement that they are claiming the tenancy on the basis of inheritance from the said brother Sakharam and, as such, as no such plea was raised by the Respondents, the Appellate Court was not justified to come to the conclusion that the tenancy has been inherited by the Respondents. Learned Senior Counsel has thereafter taken me minutely through the written statements and pointed out that it is the case of the Respondents that they were the tenants of the said Appellants along with the said deceased Sakharam and as such plea has not been established by the Respondents, the learned Judge was not justified to dismiss the suit of the Appellants. Learned Senior Counsel further pointed out that though it is not in dispute that commercial tenancy is heritable by the legal representatives but, according to him, as no such plea was raised of tenancy by inheritance, it was not open to the Lower Appellate Court to examine the dispute in that direction. The learned Senior Counsel has thereafter pointed out that as the learned Judge has gone beyond the pleadings in the written statements filed by the Respondents, the impugned Judgment passed by the Lower Appellate Court deserves to be quashed and set aside. 6. The next contention of Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants, is that merely because the suit premises were being used for business purposes by itself does not suggest that the building itself is a commercial building. Learned Senior Counsel further pointed out that it was incumbent upon the Respondents to establish that the premises were a commercial building in order that they could claim that the tenancy was heritable. Learned Senior Counsel has taken me through the pleadings of the Respondents and pointed out that as no such material was produced by the Respondents, the learned Judge was not justified to come to the conclusion that the tenancy was for commercial purpose and, as such heritable. In support of his submissions, learned Senior Counsel has relied upon the Judgment of the Division Bench of this Court reported in 1990 (1) GLT 58 in the case of Shri Vinayak Jaiwant Camotim vs. Shri Gopal Budu Naik & 2 Ors. Another contention raised by the Learned Senior Counsel is that the Respondents could not inherit the tenancy in favour of Sakharam within the provision of the Goa Rent Control Act. 7. On the other hand, Shri S. G. Bhobe, learned Counsel appearing for the Respondent, has supported the impugned Judgment. Learned Counsel pointed out that upon a notice for eviction of the disputed premises was issued to the Respondent in the suit, a reply was sent by the Respondents especially claiming that in view of the inheritance from said Sakharam who was a bachelor, the Respondent was entitled to occupy the suit premises. Learned Counsel further pointed out that even the Judgment of the Apex Court holding that commercial tenancies were heritable was quoted in the said reply. Learned Counsel further pointed out that even the Judgment of the Apex Court holding that commercial tenancies were heritable was quoted in the said reply. Learned Counsel has thereafter taken me through Para 14 of the written statement and pointed out that the claim of the Respondents of heritability of commercial tenancy was clearly stated therein. Learned Counsel has thereafter submitted that considering that the Appellants were very well aware about the claim of tenancy of the Respondents, it is not open to the Appellants to now contend that the Respondents were not claiming such right of tenancy on the basis of heritability. Learned Counsel has pointed out that in any event, this contention was not even raised before the Lower Appellate Court and, as such, it is not open to the Appellants to raise such contention in the present Second Appeal. With regard to the next contention of Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants, Shri Bhobe has pointed out that the Judgment of the Division Bench of this Court is not at all applicable to the facts and circumstances of the case as, according to him, though the tenancy was given for residential purpose, it was sought to be contended that merely because he was using a room for commercial purpose, he was entitled to inherit the tenancy. Learned Counsel further pointed out that this contention was rejected by the Courts below and whilst holding that the purpose of giving the tenancy was for residential purpose, such tenancy could not be inherited. Learned Counsel further pointed out that as per the lease Agreement what was leased to the deceased Sakharam was a shop which was being used for commercial purpose. Learned Counsel as such submits that the contention of the Appellants as such deserves to be rejected. 8. I have considered the submissions of the learned Counsel. I have also gone through the records. With regard to the first substantial question of law, though essential particulars with regard to the claim of the Respondents on the basis of the heritability of the tenancy might not have been specifically pleaded nevertheless, on perusal of Para 14 of the written statement, there was a specific plea taken by the Respondents that the commercial tenancy in favour of the deceased Sakhatam was heritable by the Respondent brother Chandrakant. Apart from that, it is now well settled that the pleadings have to be liberally construed. The Appellants were very well aware about the claim of tenancy of the Respondents by inheritance as it is not in dispute that the fact that the tenancy was a commercial tenancy and was heritable in view of the Judgment of the Apex Court was clearly brought to the notice of the Appellants in reply to the notice served on the Respondents before the filing of the suit. In such circumstances, merely because specific particulars might not have been in the pleadings by itself does not disentitle the Respondents to take such plea which was appreciated by the Lower Appellate Court whilst passing the impugned Judgment. 9. It is not in dispute that in view of the Judgment of the Apex Court reported in AIR 1985 S.C. 796 in the case of Smt. Gian Devi Anand vs. Jeevan Kumar & Ors, commercial tenancies are held to be heritable. In such circumstances, considering that it is not in dispute that the deceased was occupying the suit shop and died a bachelor, the commercial tenancy is heritable by the Respondents. Though Shri S. D. Lotlikar, learned Senior Counsel has pointed out that under the relevant Rent Control Act, there can be no difference with regard to the heritability of commercial or residential premises nevertheless in view of the judgment of the learned Single Judge of this Court reported in 2000(1) Goa Law Times 378 in the case of Hirabai Gurudas Talaulikar & Ors V/s Shri Joao Manuel Santa Rita Piedade Camara & Ors, it cannot be said that commercial tenancies are not heritable in terms of the provisions of the Rent Control Act. In the said judgment, this Court has observed at para 8 thus:- “8. After observing that some of the Rent Acts provided for regulating heritability of the commercial premises whereas some of the Rent Acts do not make such provisions either in respect of residential or commercial premises, the Apex Court held that the absence of provision relating to the rights of the heirs to inherit the tenancy rights in respect of the tenanted premises which are commercial in nature would not stop the tenancy rights from being devolved on the heirs of such statutory tenants under the law of succession. In other words, in the absence of specific provision dealing with the situation of death of a tenant in respect of a commercial premises and the consequences thereof in a Rent Act, would not that by itself obstruct the right for inheritance in the tenancy of the deceased in commercial premises under the law of succession in favour of the legal heirs of such tenant. Bearing in mind the said law laid down by the Apex Court and considering the fact that the Rent Act in force in the State does not make specific provision prohibiting inheritance of tenancy rights in commercial premises in favour of the legal representatives of the tenants, it is to be held that the late Gurudas B.S Talaulikar being a tenant in respect of premises of commercial nature and petitioners undisputedly being the legal representatives of the late Gurudas, are legally entitled to inherit the tenancy rights of late Gurudas in the suit premises. The finding of the trial Court, therefore, that the lease came to an end on the death of Gurudas B. S. Talaulikar is totally contrary to the law laid down; by the Apex Court in Gian Devi's case (supra) and, therefore, cannot be sustained. Once it is held that the tenancy rights in the suit premises are heritable in favour of the petitioners, then the petitioners would be entitled to claim protection under the provisions of the Rent Act in force in the State of Goa. Viewed from this angle, therefore, the issue relating to devolution of tenancy rights framed by the trial Court could not have been considered as an issue which can be tried along with the other issues in the suit. The issue in proceedings against the petitioners and requires no evidence to decide the same. The said issue is necessarily to be decided on the basis of the pleadings in the plaint and, therefore, the finding of the trial Court that the issue in question cannot be tried as preliminary issue is not sustainable.” Considering the ratio laid down in the said judgment, I find that the learned Judge was justified to come to the conclusion that commercial tenancies are heritable and considering that the original defendant was the brother of the original tenant, he was entitled to inherit such commercial tenancies. The first substantial question of law is answered accordingly. 10. The first substantial question of law is answered accordingly. 10. With regard to the second substantial question of law, on perusal of the lease agreement at exhibit 52, it clearly provides that the tenancy was of a shop for carrying out business. Even on perusal of the plaint, the Appellants have admitted that the premises were being used as business premises. In such circumstances, the contention of Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants, that the premises cannot be held to be for nonresidential purpose merely because business was being carried out, cannot be accepted. In the present case, considering that the leased premises was a shop wherein commercial activity was carried out, the contention of Shri S. D. Lotlikar, learned Senior Counsel, relying upon the Judgment of the Division Bench of this Court, cannot be accepted. In any event, the facts in the Judgment of the Division Bench, were totally different then the facts in the present case. The second substantial question of law is answered accordingly. 11. In view of the above, I find no merit in the above Second Appeal, which stands accordingly rejected.