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Navinbhai Bhikhabhai Shah v/s Kaushikbhai Kalidas Pancholi


Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- KALIDAS LIMITED [Dissolved] CIN = U99999MH1951PLC008490

    Second Appeal No. 320 of 2016

    Decided On, 06 March 2019

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE B.N. KARIA

    For the Appearing Parties: Ajay L. Pandav, R.D. Kinariwala, Ajay B. Vakil, Advocates.



Judgment Text

1. The present appellant, who was the original defendant in Regular Civil Suit No.152 of 2008 filed by the respondent-plaintiff-appellant before the First Appellate Court in Regular Civil Appeal No.54 of 2011, has preferred this appeal under Section 100 of the Civil Procedure Code, 1908 against the judgment and order dated 15th November, 2011 as well as 29th September, 2016 passed by the Courts below. That, this appeal was pending for hearing of the admission since 2016. But, on account of change of advocates by the appellant, it could not be proceeded. Learned Counsel for the appellant has placed on record the paper book containing the documents relied upon by the Courts below with a request to consider this appeal. On a joint request being made by learned Counsels for the respective parties, this appeal is heard and decided finally.

2. Short facts of the present case may be referred as under:

2.1 The original plaintiff has filed Regular Civil Suit No.152 of 2008 against the defendant requesting to pass a decree in favour of the plaintiff directing to hand over the vacant and peaceful possession of the suit premises to the plaintiff and granting permanent injunction restraining the defendant, his servant, agents to enter in the portion of the plaintiff where he was staying. As per the contentions raised by the plaintiff in the suit, the defendant was the friend of the plaintiff, and therefore, on his request, the suit premises was given by way of permissive user to the defendant with a condition that no rent would be accepted by the plaintiff. The suit premises was consisting of one room and kitchen. Thereafter, the intention of the defendant was changed and was trying to sold out the suit premises. That, the defendant tried to establish that he was a tenant of the suit premises, and therefore, Regular Civil Suit No.70 of 2006 was filed for declaration before the Court along with the application Exhibit 5 praying for interim injunction. That, in the another suit filed by the defendant i.e. Regular Civil Suit No.70 of 2006, prayer for interim injunction prayed by the defendant was dismissed by the Court after hearing the parties on 26th May, 2006. Thereafter, the suit filed by the defendant was dismissed by the Court on 13th March, 2008. As the defendant was trying to sell the suit premises and get possession from the plaintiff, the plaintiff was constrained to file a suit with a prayer as prayed for.

2.2 On receiving summons issued by the Court, defendant appeared through his advocate and filed written statement vide Exhibit 19 contending that the suit was not true or legal, and therefore, was liable to be dismissed. It was further contended that material facts were suppressed by the plaintiff and no cause of action arose to file the suit. That, it was barred by the principle of estoppel and no relief under Sections 6, 41 of the Specific Relief Act can be granted to the plaintiff. That, the suit was barred by delay and laches as well as law of limitation. As per the contentions, the suit premises was rented to the defendant and he was staying as a tenant since 2000 with the consent of the plaintiff. That, intention of the plaintiff was changed, and therefore, defendant was threatened to vacate the suit premises raising the demand by higher deposit, and therefore, he was constrained to file a suit before the Court of learned Senior Civil Judge, Gandhinagar against the plaintiff i.e. Regular Civil Suit No.70 of 2006. That, learned Judge was pleased to dismiss the suit for want of prosecution in absence of his Advocate. That, on 11th September, 2000 this suit premises was hired by the defendant at the rent of Rs.750/- per month. That, for renovation of the suit premises, an amount of Rs.10,000/- was given to the plaintiff in advance. There was no dispute of the ownership of the suit premises of the plaintiff as it was purchased by registered Sale Deed. The contention of the plaintiff was denied by the defendant that the suit premises was given to the defendant by way of permissive user, in fact he was the tenant of the entire premises. The intention of the selling out the suit premises was also denied by the defendant. Ultimately, it was requested by him to dismiss the suit.

2.3 Learned trial Judge, after recording the evidence of the parties, was pleased to allow the suit, directing the defendant to hand over the vacant and peaceful possession of the suit premises to the plaintiff within a period of 60 days from the date of the order and restraining him to transfer, sell, mortgage, gift or assign the interest of the suit premises vide its order dated 15th November, 2011.

2.4 The defendant, being dissatisfied with the judgment and order passed by the trial Court, preferred Regular Civil Appeal No.54 of 2011 before the Additional District Judge, Gandhinagar. The learned Additional District Judge, after hearing the parties, was pleased to dismiss the said appeal by its order dated 29th September, 2016. Hence this Second Appeal.

3. Heard Mr.Ajay L. Pandav, learned Counsel for the appellant and Mr.R.D. Kinariwala, learned Counsel with Mr.Ajay B. Vakil, learned Counsel for the respondent.

4. It was argued by the learned Counsel for the appellant that it was clearly established by the present appellant that the suit premises was rented to him at the monthly rent of Rs.750/- in the year 2000 and the defendant was in occupation of the suit premises since then as a tenant. That, witnesses including daughter of the defendant were examined before the learned trial Court and they have clearly stated on oath that rent of the suit premises was handed over to the plaintiff and it was accepted. That, being friend of the defendant, no rent receipts were issued by the plaintiff in favour of the defendant. That, learned trial Court has committed an error in not considering the deposition of the witnesses examined before the trial Court, who have specifically stated that the rent was given to the plaintiff in their presence. It was further argued that an agreement to sell was executed by the plaintiff in favour of the defendant and the dispute is pending for execution of agreement and specific performance. That, trial Court has not appreciated the evidence in proper way, however, the defendant had clearly established from the evidence that he was the tenant of the suit premises. Hence, it was requested by the learned Counsel for the appellant to quash and set aside the impugned judgment and order passed by the learned trial Court. He has referred the deposition of the either parties examined before the trial Court.

5. From the other side, learned Counsel for the respondent plaintiff supported the judgment and order passed by the trial Courts below and submitted that as the defendant was the friend of the plaintiff, on his request, the suit premises was given to him with a view to help him by way of permissive user for a limited period. That, the defendant was never considered as a tenant and no rent was accepted by the plaintiff from the beginning. That, intention of the defendant was changed and he was trying to sell out the suit premises, the plaintiff was constrained to file the suit restraining to transfer or assign the interest and rights of the suit premises to any third person and for vacating and handing over the peaceful possession to the plaintiff. That, no rent receipts or rent agreement were produced on record by the defendant as if it was rented to the defendant. That, there was no relationship of the landlord and tenant, however, the defendant has tried to establish that he was the tenant in the suit premises. That, in the Regular Civil Suit No.70 of 2006 filed by the defendant before the learned Senior Civil Judge, Gandhinagar, only permanent injunction was sought by the plaintiff and no contention of agreement to sell of the suit premises allegedly executed by the plaintiff in favour of the defendant was raised by him. That, trial Court as well as First Appellate Court has committed no error in dismissing the suit as well as Regular Civil Appeal preferred by the appellant. This Court may not interfere with the judgment and decree passed by the trial Courts in favour of the plaintiff. In support of his arguments, learned Counsel has relied upon the judgment reported in 2012 5 SCC 370. Ultimately, it was requested by him to dismiss the appeal.

6. Having perusing the record of the trial Court produced by the appellant as well as arguments advanced by learned Counsels of the respective parties, it appears that it was the case of the plaintiff that suit premises was given to the defendant, on his request, by way of permissive user with a condition that no rent would be accepted by the plaintiff. The defendant has only relied upon the document Exhibit 115 to establish that an amount of Rs.1,200/- was accepted by the plaintiff from the defendant as a deposit. It appears from the record and the findings arrived at by the trial Court that no rent receipts or rent agreement were produced by the defendant to establish his right in the suit premises as a tenant. Of course, the daughter of the defendant examined before the trial Court vide Exhibit 122 has stated that in the year 2000 the suit premises was rented by her father at the monthly rent of Rs.750/- and rent was paid to the plaintiff in her presence as well as Rs.10,000/- was paid in advance for repairing of the house, but from the cross-examination it transpires that no rent receipt was available with the witness. Other witness Jayantilal Nakhmanji Shah has also tried to support the statement of the defendant in his deposition but in absence of any rent agreement or rent receipts in favour of the defendant, the case of the defendant cannot be accepted that he was a tenant in the suit premises or it was hired by him as a tenant in the year 2000. The document Exhibit 15 showing that an amount of Rs.1,200/- was paid to the plaintiff would never establish the right of the defendant as a tenant of the suit premises. Further, this was a note on a notebook, and therefore, evidential value of this document Exhibit 115 would not be considered in absence of any supportive evidence. The plaintiff has clearly stated in his deposition before the Court that defendant was his friend and with a view to help the defendant, on his request, the suit premises was given to him by way of permissive user. The defendant has also accepted the relationship of a friend with the plaintiff in his cross-examination Exhibit 66. The defendant was running his business of printing press, and therefore, if any rent was paid by him, certainly he could secure the rent receipts from the plaintiff. In the written statement filed by the defendant, it was never contended that any rent of the suit premises was paid to the plaintiff in presence of any person. It was also the contention of the defendant that rent was offered by the money order, but no money order receipt was produced on record by the defendant. There was no evidence produced on record by the defendant that he was staying in the suit premises as a tenant. The defendant clearly failed to establish his case creating tenancy rights in the suit premises. The only oral evidence produced by the defendant cannot be considered by the Court. If entire evidence is considered by this Court, the Trial Court has committed no error in allowing the suit preferred by the plaintiff as well as dismissing the appeal preferred by the present appellant.

7. The Hon'ble Supreme Court in a case of Maria Margarida Sequeria Fernandes v. Erasmo Jack De Sequeria (Dead) Through L.Rs, (2012) 5 SCC 370 in para 101 has crystallized principles of law, which emerge from the facts of the case as under :-

"101 Principles of law which emerge in this case are crystallized as under: -

1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

5. The caretaker or agent holds property of the principal only on behalf

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of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession." 8. In the peculiar facts of the case, this Court is not satisfied to consider the case of the present appellant to interfere with the impugned judgment and order passed by the Courts below. 9. Learned Counsel for the appellant has submitted that vacant and peaceful possession has been handed over to the respondent in the execution proceedings, which was confirmed by the learned Counsel for the respondent. 10. However, considering the facts and circumstances of this case, this appeal is dismissed. judgments and decree passed by the Courts below, are confirmed. In the facts and circumstances of the case, the appellant is directed to pay cost of Rs.25,000/- to the respondent within a period of 4 weeks. ORDER IN CIVIL APPLICATION (FOR STAY) No. 1 of 2016 IN R/SECOND APPEAL No.320 OF 2016: As the appeal is decided on merits and dismissed, the present civil application would not survive and the same stands disposed of accordingly. ORDER IN CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) No. 1 of 2019 In R/SECOND APPEAL No. 320 of 2016: As the appeal is decided today, after hearing the parties, the purpose of fixing early date of hearing would not survive. Hence, present application stands disposed of.
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