The provisions of Section 23(3) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 are not attracted to the facts of a case where the landlord had filed, right from the beginning, a suit for the eviction of both the tenants of the house on the ground that she required the same house for occupation of her family and her own.

JUDGEMENT :- This appeal is directed against the judgment and decree dated Oct.16, 1976, passed by the Civil Judge, Jr. Dvn., Mapusa, whereby the appellant was ordered to vacate the three rooms occupied by her and to give vacant possession thereof to the respondent herein.

2. A suit for eviction has been instituted against the appellant by the respondent herein in the exercise of the right conferred by Sec.53 of the Decree No.43525 on the grounds that the suit house, situate at Mapusa and belonging in equal shares to her sons Waman, Raghunath and Shantaram, was required for her personal occupation and that of her sons. The suit was resisted by the appellant herein but ultimately decreed by the impugned judgment.

3. The case of the appellant against the impugned judgment is that the trial Court misdirected itself by extraneous consideration and therefore, failed to address itself to the real questions at issue. In fact, the trial Judge wrongly held that the premises occupied by the appellant are required by the respondent for the personal use of her family, when the portion occupied by the same respondent is more than adequate and sufficient for the accommodation of the respondent and her family. Further, the trial Court wrongly held that it is not proved that the respondent and her family never occupied the rooms eviction from which is sought, as wrongly held that Sec.23 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 is not applicable to the facts of this case.

4. Elaborating the above grounds, Mr. P. Mulgaonkar, learned advocate appearing for the appellant, argued before me that the respondent is residing in the portion of the house which was earlier occupied by Dr. Kuvelkar along with only one son. The said portion is sufficiently ample to comfortably house her and her son, being a fact that the rooms occupied by the appellant are situated at the back of the house, have an independent entrance and had been always occupied by servants and persons of low status. Further, respondent ought to have applied under S.23 (3) of the G.D.D. Buildings (Lease, Rent and Eviction) Control Act, 1968 and could have got the rooms occupied by the appellant only in case she had succeeded to satisfy that she required the said additional accommodation for her own use and for the use of her family. Finally, Mr. Mulgaonkar submitted that appellant is prepared to vacate two out of the three rooms rented to her as shortage of accommodation is well known to exist at Mapusa.

5. As against this, Mr. M.S. Usgaonkar, learned advocate appearing for the respondent, contended that the evidence on record shows that the portion of the house at the present occupied by the respondent is not sufficient for her own use and that of her family members. In any case, Mr. Usgaonkar further argued, appellant is holding on lease three rooms, but actually she is occupying for her own use only one room, being a fact that she has been giving on rent the other two rooms, giving cause to nuisance, specially when the portion occupied by her is not independent from the portion of the house occupied by the respondent. Insofar as the provisions of S.23(3) of the Act are concerned, Mr. Usgaonkar submitted that the said provisions are not at all attracted to the facts of this case because the respondent had initially filed a single suit against Dr. Kuvelkar and the appellant herein, but as the Court felt that she had to institute two separate suits, she had to amend the original suit and file a second suit against the appellant. However, right from the beginning, respondent sought possession of the whole house. He also invited my attention to the evidence and submitted that it is not proved that respondents did not occupy the rooms at the present in possession of the appellant, as the statement of Raghunath Joshi corroborates.

6. The challenge of the appellant against the impugned judgment is based in two main facts, namely: (i) the portion of the

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