Mr. Anthony Fialho vs Mr. Mukund Sukdo Naik Shirodkar and Others

N.A. Britto, J.—Heard Shri Kholkar, the learned Counsel on behalf of the appellant and Shri Bras De Sa, the learned Counsel on behalf of respondent no.1. This is defendant no.1''s second appeal arising from Special Civil Suit No. 123/1992. The said suit was filed by the plaintiff (respondent no.1 herein) for recovery of possession of a shop identified as C-3 which admittedly belongs to the Government. It appears that the plaintiff as well as the defendant no.1 had their shops near what is commonly known as Gandhi Chowk and at the time of Chogm they were displaced from there and allotted shops in the newly built market complex at Old Goa. The plaintiff claimed his title to the said shop based on agreement executed with the Government dated 1/09/1986. Defendant no.1 claimed title to the same on the basis of a note prepared by the Mamlatdar which is at page 132. It also appears that subsequently by notice dated 18/06/1990 Exhibit 48 the Government demanded payment of rent from the plaintiff. Both the Courts below have come to the conclusion that by virtue of the lease agreement with the Government, the plaintiff holds title to the disputed shop and he was put in possession of the said shop under the said agreement. According to the defendant, the possession of the suit shop was given to his wife by the Mamlatdar pursuant to the said note at Exhibit 37 (page 132). The said note also shows that the key was not given to the wife of the defendant no.1. It also shows that an order was issued in favour of the plaintiff. Considering the lease produced by the plaintiff with the Government, there was no other option for the Courts below to come to the conclusion that the plaintiff held title to the disputed shop. Counsel on behalf of defendant no.1 submits that the said document was not registered. If that be the case, such an objection ought to have been taken before the said document was exhibited on behalf of the plaintiff.

Nevertheless, it appears that there is no evidence as far as mesne profits were concerned except for the bare word of the plaintiff that in the premises earlier occupied by him, the plaintiff was earning Rs. 1,200/-per month. Counsel on behalf of both parties agree that the matter of determination of mesne profits be left open to be decided by the learned trial Court in inquiry to be held in that regard. Consequently, the Second Appeal is hereby dismissed. The plaintiff is held entitled to recover possession of the shop C-3 in terms of prayer (a) of the suit, keeping the determination of mesne profits only, open to be decided by the trial Court, in terms of prayer (b) of the suit.