Meena Nagvenkar Dessai vs Aleixo Mendes

U.V. Bakre, J.—Heard Mr. Pangam, learned Counsel appearing on behalf of the appellants. None present for the respondents.

This appeal is directed against the Judgment and Decree dated 27/09/2007 passed by the learned Ad hoc District Judge-2, FTC-II, Margao (First Appellate Court, for short) in Regular Civil Appeal No. 42 of 2007. By the impugned judgment and decree, the judgment, order and decree dated 25/04/2007 passed by the learned First Additional Civil Judge, Senior Division, Margao (Trial Court, for short) in Regular Civil Suit No. 176/1998/I has been set aside.

The appellants were the defendants and the respondents were the plaintiffs in the said suit. The parties shall hereinafter be referred to as per their status in the said suit.

The plaintiffs had filed the said suit for eviction of the defendants from the suit premises situated near Presentation Convent at Margao. The case of the plaintiffs, in short, is as follows:

The plaintiffs are children of Custodio Mendes having their ancestral house at Bernado Costa road and suit premises which is a structure/room bearing house No. 190 in the Municipal records at Ward No. 11, near Presentation Convent, belongs to them. The suit premises are recorded in the City Survey at Margao under Chalta No. 169 of P.T. Sheet No. 179 in the name of father of the plaintiffs namely Late Cristovao Custodio Xavier Mendes alias Custodio Mendes and uncle late Joaquim Joao Santan Cipriano Mendes. The sister of plaintiffs Late Luiza Mendes was looking after the properties and house under a Power of Attorney dated 04/02/1981, given by all the plaintiffs, in her favour. The suit premises are recorded in the Municipal records in the name of late Custodio Mendes. When the plaintiffs came for funeral of their sister Luiza Mendes on 11/12/1997, they noticed that the suit premises were occupied by the defendant No. 1 and they were at a loss to understand as to who inducted her in the suit premises. They issued a notice to the defendants No. 1 on 24/12/1997 and the defendant received the same but did not send any reply. Late Luiza Mendes had no authority to let the suit premises to any person either as a tenant or licensee. Hence, the occupation of the suit premises, by the defendants, is that of trespassers. Hence, the suit.

The defendants, by way of their written statement, alleged that late Luiza Mendes, under the Power of Attorney given to her by the plaintiffs, was looking after the suit premises and had allowed the defendants (including late Mr. Nagesh Dessai, the husband of defendant No. 1 and father of defendants No. 2 and 3) to stay as tenants in the suit premises vide letter dated 23/06/1994. The defendants further stated that repairs of the suit premises were going on when the plaintiff No. 6 and his wife Ms. Conceicao Mendes had obstructed the repairs work due to which the defendant No. 1 filed police complaint on 30/07/1994. The said repairs work was started under licence dated 15/06/1994 issued by the Margao Municipal Council in the name of said Luiza Mendes. The said Luiza Mendes was given Power of Attorney by the plaintiffs and from 1982 the defendant No. 2 has been residing in the suit premises and had paid regular rent to said Luiza Mendes who expired on 11/12/1997.

The defendants had also filed a counterclaim, inter alia, for direction to the plaintiffs to issue rent receipts.

The learned trial Court framed following issues:

Where the plaintiffs prove that the plaintiffs have the suit structure near the Presentation Convent to Margao on Adeudato Barreto Road?

Whether the plaintiffs prove that the plaintiffs noticed the suit structure being occupied by one Mrs. Meena Nagvenkar Dessai on 11.12.97?

Whether the plaintiffs prove that their late sister Luiza Mendes had no authority to let the premises to any person either as tenant or licensee?

Whether the plaintiffs prove that the defendants are trespassers and the plaintiffs are entitled to recover compensation of Rs. 500/- from 24.12.97 with interest at the rate of 14% p.a.?

Whether the defendants prove that they are residing in the suit premises since 1982 and regularly paying rent?

Whether the defendant prove that late Luiza Mendes under the power of attorney given to her by the plaintiffs had allowed the defendants to occupy the suit structure as tenants?

Whether the defendants prove that plaintiff No. 6 and Conceicao Mendes had obstructed the repair work of the suit structure for which a complaint was also filed by defendant No. 1 on 30/07/1994?

Whether the defendants prove that Luiza Mendes had taken an amount of Rs. 12,500/- in 1995 from the defendants for repair of the northern wall of the suit premises and was to be adjusted towards the rent payable and that Rs. 9,350/- is due from said Luiza Mendes as on 01/04/1997?

Whether the defendants prove that the plaintiff is liable to pay an amount of Rs. 5000/- with interest at the rate of 12% p.a.?

The plaintiffs examined Mr. Severino Mendes, plaintiff No. 6 as PW1 and produced various documents. The defendants examined the defendant No. 1 as DW1 and Ms. Judith Fernandes as DW 2 and produced certain documents.

The learned Trial Court, upon consideration of the entire evidence on record, held that the Power of Attorney at Exhibit-48 given by all the plaintiffs to late Luiza Mendes clearly stated that she was given power to collect or receive any debt or rent or income due and owing to the plaintiffs from any person and on receipt of payment of any money whatsoever due and payable to the plaintiffs to give proper receipt and discharge for the same and further generally to do, execute and perform any other act, deed, matter or thing whatsoever as fully and effectually which the plaintiffs could do if they were personally present. The Trial Court further held that it is no where stated in the Power of Attorney that late Luiza Mendes was not authorised to let out the premises to any person. The Trial Court held that though there is pleading on the point of no consent of the plaintiffs for letting premises to any person, however, there was no corroborating evidence on record. The Trial Court further held that there is ample evidence on record to hold that the defendants are residing in the suit premises since 1982 as tenants and have been regularly paying rent. Accordingly, the issues No. 1, 5, 6 and 7 have been answered in the affirmative and issues No. 2, 3, 4, 8 and 9 have been answered in the negative. Consequently, the suit as well as the counter claim of the defendants stood dismissed.

The defendants did not prefer any appeal against the judgment of the Trial Court, dismissing their counterclaim. However, the plaintiffs filed Regular Civil Appeal No. 42 of 2007 before the District Court, South Goa, Margao. The learned First Appellate Court framed the following point for determination:

Did the Learned First Additional CJSD, Margao err in holding that the defendants are not trespassers in the house?

By Judgment and decree dated 27/09/2007, the First Appellate Court set aside the Judgment of the Trial Court and directed the defendants to hand over vacant possession of house No. 190, in Ward No. 11 within the city of Margao, to the plaintiffs. The learned First Appellate Court observed that the Power of Attorney should be strictly construed and that powers not given should not be implied. The First Appellate Court held that power to collect rent does not include power to give on rent and that these are two different acts and, therefore, the said Power of Attorney does not authorise Luiza Mendes to let out the premises to the defendants.

The defendants have therefore filed the present Second Appeal which has been admitted on following substantial questions of law:

(i) Whether the learned Lower Appellate Court could have reversed the findings of the learned Trial Court, inasmuch as in terms of the power of attorney dated 5/03/1982 and Clause (9) particularly, the Respondents herein had categorically authorized Luiza Mendes ''to do, execute and perform any other act, deed, matter or thing whatsoever as fully and effectually as themselves could do the same, if were personally present'' and as such, Luiza Mendes was authorized to execute Lease Deed with the Appellants?

(ii) Whether non-consideration of the definition of ''landlord'' under the Goa, Daman & Diu Rent Controller Act, 1968 has resulted in an finding by the lower appellate Court that there is no landlord-tenant relationship between the appellant and the respondents?

Mr. Pangam, learned Counsel appearing on behalf of the defendants, invited my attention to the Power of Attorney which is at Exhibit-48 in the suit and pointed out that all the plaintiffs have given power to late Luiza Mendes to recover and receive any debt or rent or income due and owing to the plaintiffs from any person and on receipt of payment of any money whatsoever due and payable to the plaintiffs, to give proper receipt and discharge for the same. He next pointed out clause No. 9 of the said Power of Attorney which authorises said Luiza Mendes generally to do, execute and perform any other act, deed, matter or thing whatsoever as fully and effectually which the plaintiffs themselves could do as if they were personally present. He submitted that combined reading of above two clauses would show that the said Luiza Mendes had power to execute the lease deed. He then submitted that there are rent receipts on record issued by said Luiza Mendes in token of having received house rent of Rs. 150/- from Nagesh S. Dessai, who is the husband of the defendant No. 1. He further submitted that there is a clear finding by the Trial Court to the effect that the defendants have been residing in the suit premises since 1982 and have been regularly paying rent. He pointed out that the above finding of the Trial court has not been displaced by the First Appellate Court. He, therefore, urged that the substantial questions of law should be answered in favour of the defendants and consequently the trial Court judgment should be restored.

I have gone through the material on record. I have considered the submissions advanced by the learned Counsel for the defendants.

In the plaint, the plaintiffs have stated that late Luiza Mendes was looking after their properties and house under a Power of Attorney dated 04/02/1981. Thus, the execution of Power of Attorney by the plaintiffs in favour of late Luiza Mendes is an admitted fact. However, the plaintiffs have further pleaded that late Luiza Mendes who is their sister had no authority to let out the premises to any persons either as tenant or licensee. We are not concerned with any Power of Attorney which is dated 04/02/1981. According to the defendants, late Luiza Mendes had a Power of Attorney of March, 1982 and the same has been produced by them. The power of attorney dated 05/03/1982 is at Exhibit-48. As has been rightly contended by the learned Counsel for the defendants, this Power of Attorney, by virtue of clause 2, gives power to the Luiza Mendes to receive rent from any person and to give receipt for the same. Again by virtue of clause 9 of the said Power of Attorney, said Luiza Mendes has been given power generally to do, execute and perform any other act, deed, matter or thing whatsoever as fully and effectually be done by the plaintiffs themselves as if they were personally present. The defendants have produced on record the receipt dated 30/08/1988 which is signed by Luiza Mendes and which speaks about payment of rent of Rs. 150/- for house near P.C.H.S., paid by Nagesh Dessai. There is no dispute that said Nagesh Dessai is the husband of defendant No. 1. The Trial Court has specifically held that the defendants have proved that they are residing in the suit premises since 1982 and regularly paying rent. The learned First Appellate Court in paragraph 25 of the impugned judgment has held that the fact that the complaint was made in 1994 against the plaintiff No. 6 shows that the defendants were in possession of the premises at least from 1994 and that the preponderance of probability is that they were inducted into the house as tenants by Luiza Mendes. The learned First Appellate Court has also specifically held that the evidence on record shows that the defendants were occupying the house much prior to the death of Luiza Mendes and therefore the case of the plaintiffs that they came to know that the defendants were residing in the house only at the time of the death of Luiza Mendes is false. Considering the contents of the said Power of Attorney, I am of the view that the learned Trial Court rightly interpreted the clauses of the said Power of Attorney whereas the learned First Appellate Court erred in holding that the said Power of Attorney does not authorise Luiza Mendes to let out the said premises to the defendants. The substantial question at Sr. No. (i) gets answered in favour of the defendants.

In terms of Section 2(j) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, "landlord" means a person who, for the time being, is receiving, or is entitled to receive, the rent of any building, whether on his own account or on account of, or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant. As already stated, admittedly, the plaintiffs had given power to late Luiza Mendes to receive rent on their behalf and it is proved that she was receiving rent for the suit premises from the husband of the defendant No. 1. There is, therefore, relationship of landlord and tenant between the plaintiffs and the defendants and therefore the Civil Court had no jurisdiction to entertain the suit. The substantial question at Sr. No. (ii) is answered in favour of the defendants.

In view of the above, the impugned judgment and decree passed by the learned First Appellate Court is not in accordance with the settled principles of law and is bound to be quashed and set aside. Consequently, the judgment, order and decree of the Trial Court is bound to be restored.

In the result, the appeal is allowed.

(a) Impugned Judgment and decree dated 27/09/2007 in Regular Civil Appeal No. 42 of 2007 is quashed and set aside.

(b) The Judgment, Order and decree dated 25/04/2007 in Regular Civil Suit No. 176 of 1998 stands restored.

(c) No order as to costs in the facts and circumstances of the case.