( 1 ) THIS is defendants second Appeal arising from the Special Civil suit No. 85/86/a and was admitted by order of this Court dated 23-06-2000, on a question of law which reads as follows: whether in the facts and circumstances the court below was right in awarding mesne profits at the rate of Rs. 75/- per day?

( 2 ) THE Respondent no. 1, now represented by the legal heirs, were duly served, but have chosen not to contest this appeal. The Respondent no. 2 as can be seen from the order of this Court dated 10-10-2002 was a firm which is no more in existence, and the partners of which are already on record as legal heirs of Respondent no. 1.

( 3 ) THE parties hereto shall be referred to in the names as they appear in the cause title of the said Civil Suit.

( 4 ) THE Plaintiffs (Respondents before this Court) had filed the said Civil Suit for the eviction of the Defendant from residential House No. E-499 admeasuring about 177 sq. mts. belonging to one Shri. Sertorio Coelho and situated at Father Agnelo road at Panaji, of which the plaintiffs were the tenants and were paying to the said Sertorio coelho a monthly rent of about Rs. 80/- upto the year 1981.

( 5 ) THE Plaintiffs filed the suit for the eviction of the defendant on the allegation that the defendant was appointed as a godown keeper of the firm/plaintiff no. 2 and was provided with effect from 26-11-1968 the said house as service accommodation on the condition that the defendant would occupy the said house only during the tenure of his service and also provided the defendant with some furniture. It was further, the case of the plaintiffs that the defendant was not required to pay any rent of the suit house nor the charges towards the furniture supplied to him but was supposed to pay water and electricity bills for the power and water consumed by him during his occupation of the suit house.

( 6 ) THE plaintiffs terminated the services of the defendant by notice dated 07-10-1985 and the defendant was directed to quit and vacate the suit house within 30 days from the termination of his service but since the defendant refused to vacate the suit house, for reasons stated by defendant, the plaintiffs filed the suit on 09-06-1986 for the eviction of the defendant.

( 7 ) DURING the pendency of the said civil Suit the defendant vacated the house on 01-06-1990 and therefore the only issue which the trial court was required to decide was the issue of mesne profits claimed by the plaintiffs for the wrongful occupation of the suit house by the defendant from 08-11-1985 to 01-06-1990 at the rate of Rs. 75/- per day. The learned trial Court after considering the evidence of p. W. 1 Purshottam M. Raithatha and that of plaintiffs valuer namely P. W. 2 Subhash chandra Bhobe came to the conclusion that the plaintiffs had failed to make out a case to claim mesne profits.

( 8 ) THE plaintiffs claim for mesne profits at the rate of Rs. 75/- per day was explained by the plaintiffs in the evidence of p. W. 1. P. W. 1 had stated that in case he had not given the suit premises to the defendant, he would have accommodated at least 20 beds to use the suit house as a lodging house and that could have fetched the profits of Rs. 75/-per day. However, he had admitted that he could not have sublet the suit house, being a tenant. P. W. 2 Shri. Bhobe had fixed the fair rent of the suit house by a report dated 25-4-1995 and in the said report he fixed the fair rent for November, 1985 in the sum of rs. 2,650/-, for November, 1988 in the sum of rs. 3,271/- and for November, 1991 in the sum of Rs. 3,984/ -.

( 9 ) THE learned trial court observed that the plaintiffs had failed to produce evidence on record to show that there was an offer made to them for converting the suit house into a lodging house or that they had made any efforts for such conversion after issuing termination notice to the defendant and that there was nothing of this sort on record. The learned trial court also noted that there was also nothi

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