Gujarat High Court
Administrator Of Ravinagar Malaji ... vs Owenr Of Chandramauli Coal Traders ... on 8 May, 2024
NEUTRAL CITATION
C/SA/88/1997 JUDGMENT DATED: 08/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 88 of 1997
With
CIVIL APPLICATION NO. 1 of 1998
In R/SECOND APPEAL NO. 88 of 1997
With
R/SECOND APPEAL NO. 89 of 1997
With
CIVIL APPLICATION NO. 1 of 1998
In R/SECOND APPEAL NO. 89 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ADMINISTRATOR OF RAVINAGAR MALAJI CHAMPAJI THAKORE & ANR.
Versus
OWENR OF CHANDRAMAULI COAL TRADERS LALITABEN PRATAPRAI
SINCE DIED THROUGH LHR & ORS.
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Appearance:
MR GC RAY(721) for the Appellant(s) No. 1
MR MEHUL S SHAH(772) for the Appellant(s) No. 2
MR. VARUN G RAI(7135) for the Appellant(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 1
VENU H NANAVATY(7458) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5,1.6
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NEUTRAL CITATION
C/SA/88/1997 JUDGMENT DATED: 08/05/2024
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/05/2024
COMMON ORAL JUDGMENT
1.1 Both these appeals, under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the CPC') arise from the impugned common judgment and decree dated 29.01.1997 passed by the learned 3 rd Joint District Judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad in Regular Civil Appeal No.31 of 1994 and Regular Civil Appeal No.32 of 1994, whereby the learned appellate Court below has dismissed both the appeals, which were arising from the common judgment and decree dated 31.03.1994 passed by the learned Joint Civil Judge (J.D.), Ahmedabad (Rural) at Mirzapur, Ahmedabad in Regular Civil Suit No.903 of 1985, dismissing the same and Regular Civil Suit No.908 of 1985, allowing the same.
1.2 Since the parties, facts, issues, land in question and the arguments are common, with consent of the learned advocates, both these appeals are heard and decided together by this Court today by this common order.
2. The brief facts of the present appeals are as under :
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NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined 2.1 The appellants are the administrators of Ravinagar purchased land of Survey No.446 & 449 of village Vejalpur and it was divided in 13 final plots and each final plot was further divided in 9 sub-plots. In all 117 plots were made and allotted to the members and the holders of the plots have started the construction on the said plots. Out of the said plots, one final plot No.14 was kept for the common use of all the plot holders which was admeasuring 2000 sq.years and out of the said plot, 132 ft. land was gone into the road. The land in question would be the said common plot.
2.2 The appellants are the plaintiffs of Regular Civil Suit No.903 of 1985. The said suit is filed for permanent injunction restraining the defendants from disturbing the possession of the plaintiffs suit plot and also restraining the defendants from removing the iron hedges and entering into the suit plot and to start wooden factory or from making any type of construction upon the suit land and also restraining the defendants from allowing any person upon the suit land.
2.3 The respondents have filed Regular Civil Suit No.908 of 1995 for declaration that they are the legal tenant of plot No.14 of Survey No.446 & 449 known as Ravinagar and also prayed to restrain the defendants from taking the Page 3 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined possession of the suit land from the plaintiffs and obstructing the plaintiffs from entering into the suit land.
2.4 Both the suits were consolidated and tried together since issues, facts and parties are same.
2.5 The learned trial Court has taken into consideration the various evidence - documentary as well as oral and framed the various issues separately in both the suits and answered them accordingly.
2.6 Ultimately, the learned trial Court has dismissed Regular Civil Suit No.903 of 1985 and allowed Regular Civil Suit No.908 of 1985 and thereby held that the present respondents are the tenant in the suit land and also restrained the present appellants from disturbing the possession of the respondents.
2.7 Being aggrieved, the present appellants have filed appeals against both being Regular Civil Appeals No.31 & 32 of 1994, which are dismissed by the learned appellate Court below on merit.
2.8 It is these judgments and decrees which are challenged by the present appellants - original plaintiffs Page 4 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined before this Court in these second appeals.
3. Heard learned advocates.
4.1 Learned advocate Mr. P.K. Shukla for learned advocate Mr. G.C. Ray for the appellants has submitted that the suit preferred by the wife of the respondent is not a house rent possession suit; and that both the Courts below have erred in holding that the amount of Rs.2,000/- paid by the respondent was paid towards the rent of the suit plot;
and that near tendering of any amount does not necessarily meant that the said amount was tendered towards the rent of the suit plot; and that both the courts below have erred in declaring that the plaintiff of the Regular Civil Suit No.908 of 1985 - tenant of the whole suit plot as the said plaintiff has pleaded for the injunction only in respect of the portion of the suit land, which was possessed by the said plaintiff and not in respect of the whole suit plot admeasuring 2000 sq.yrds.; and that the learned trial Court has no jurisdiction to hear and decide the civil suit/s; and that the suit plot is a common plot and therefore, the other side cannot be declared as tenant of the said plot in question.
4.2 In support of his submissions, he has relied upon Page 5 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined the following decisions :
(i) 2001 (4) GLR 3350 - Kotecha Brothers versus Bileshwar Khand Udyog, Paras : 6 & 8 thereof.
(ii) AIR 2020 SC 4321 - Nazir Mohamed versus J. Kamala, Para 37 thereof.
(iii) (2023) 4 SCC 788 - BSES Rajdhani Power Limited versus Delhi Electricity Regulatory Commission, Paras 30 to 34 thereof.
4.3 He has submitted that both these appeals may be allowed.
5.1 Learned senior advocate Mr. Anshin Desai with learned advocate Ms. Venu Nanavaty for the respondents has submitted that the documentary evidence of diaries produced by the party showing details of payment of rent; and that in absence of any evidence suggesting to contrary and any militating circumstance being absent, diaries to be believed and relied upon; and that diaries reflected state of affairs of those early years and could be well said to be indicative of intention parties; and that the landlord tenant relationship in absence of any written agreement to be ascertained from the intention of the parties gathered from surrounding and Page 6 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined attendant aspects; and that long occupation of defendant coming out of all evidence above read together in itself a strong circumstance to suggest that relation of tenant and landlord was created between the parties; and that when particular documents are not filed in the Court, then the Court must presume that the party not filing the documents is not relying upon the contents of the documents or the Court may presume that produce of such documents would have worked against the interest of the party if the said documents were filed by the said party; and that there are concurrent findings of both the learned Courts below; and that the respondent/s has categorically provided that the possession of the suit land in with hem since 1980 and the possession is legal and valid which is also supported by various documentary evidence as well as oral evidence; and that passing of consideration, deposit, rent, etc., is proved and all the details which the present respondents has produced is exhibited and that too supported by oral evidence
- depositions of both sides; and that the appellants deliberately did not produce any documentary evidence to controvert the fact of passing of consideration like bank account statement and nor did they examine any such witness except themselves, no independent witness is examined, despite admitting that the appellants do maintain books of accounts, therefore, adverse inference has been Page 7 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined correctly drawn against the present appellants. 5.2 In support of his submissions, he has relied upon the following decisions :
(i) 2023 SCC OnLine SC 875 - Gubachan Singh versus Gurcharan Sing, Paras : 7, 14 & 15 thereof.
(ii) Second Appeal No.45 of 2023, dated 13.02.2024 - Leelaben Dineshbhai Bhagora versus Nileshbhai Bhesdaiya, Paras : 7.6 to 7.9 thereof.
(iii) Second Appeal No.257 of 2023 -
Haseenabibi Sariyakhan Patahin versus Estate Officer, Paras 15, 18 to 20 thereof.
(iv) (2019) 1 SCC 595 - State of Madhya Pradesh versus Sabal Singh, Para 5 thereof.
(v) (2019) 7 SCC 641 - Gurnam singh versus Lehna Singh, Paras 13.1 to 17 thereof.
(vi) (2016) 10 SCC 315 - Syeda Rahumunnisa versus Malan Bi, Headnote : B, C & D and Paras : 28 to 35 thereof.
(vii) (2021) 2 SCC 718 - Iqbal Basith versus N. Subbalakshmi, Headnote : B & Paras 9 & 10 thereof.
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NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined
(viii) 2023 (0) AIJEL-SC 70437 (SC) -
Sirajuddheen versus Zeenath, Headnote : B and Paras : 11, 14 & 15 thereof.
(ix) 2007 (2) GLR 1690 - Ravjibhai Prabhudas Patel versus Additional Collector and Competent Authority, ULC, Headnote : C and Para : 5 thereof.
(x) 2014 JX (Guj.) 455 - Subhashbhai Rasiklal Modi versus Sarlaben Chimanlal Vyas, Paras : 6 to 9 thereof.
5.3 He has submitted that both these appeals may be dismissed.
6.1 I have heard the rival contentions made by the learned advocates for the respective parties. I have considered the documents available on record. I have perused the impugned judgments and decrees passed by both the learned Courts below.
6.2 Both these appeals are admitted by this Court vide order dated 10.07.1997 and granted status-quo qua the suit plot, which were tried to flout by the respondents and therefore, one civil application for appropriate direction was filed by the present appellants which was allowed and the Page 9 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined situation ante was ordered to be restored. 6.3 While admitting these appeals, this Court has observed that the following substantial question of law is involved :
"Whether in face of the finding arrived at by the courts below that there is no cogent proof of payment of Rs.35000/- as pleaded by Lalitaben and there is no cogent proof of payment of any rent to the administrator of Ravinagar and there having been admittedly no written document of tenancy, whether there was any material before the courts below to reach a finding that the property in question was let out to Lalitaben and Lalitaben was in possession of the property as tenant and consequently decreed the suit/ s filed by the respondent/appellant ?"
6.4 The above substantial question of law suggests two sub-questions :- (i) Whether there was any material before the courts below to reach a finding that the property in question was let out to Lalitaben or not ? and (ii) Whether Lalitaben was in possession of the property as tenant or not ? Keeping these in mind, the observations made by both the Courts below are Page 10 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined as under :
6.4.1 With regard to the question at to whether there was any material before the Courts below to reach a finding that the property in question was let out to Lalitaben or not is concerned, both the Courts below have observed that, the wife of the respondent - Lalitaben has hired the suit plot at the rent of Rs.100/- per month and he has paid Rs.8,000/- by cash and Rs.2,000/- by cheque to the appellants on 20.03.1980 for the same;
and that Prataprai Dhulaji, a husband of said Lalitaben, has deposed at Exh.67 and has produced the counter-foil of the cheque vide Exh.68 and the certificate issued by the bank to show that the said amount is debited from their account; and that he has also produced the books of account of the business, wherein he has debited Rs.100/- per month as rent paid to the appellants; and that the learned appellate Court has specifically observed that the wife of the respondent has been in possession of the suit plot since 1980 and the appellants have suppressed these facts though they were knowing that the respondents are in possession of the suit land; and that the learned trial Court has observed that there are ample material on record to prove that the respondents are the tenant of the plot in question; and that the respondents are entitled to pray for injunction against the appellants. Thus, there are material before the Courts below to reach a finding that the property in question was let out to Lalitaben by the appellants at that point of time.
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NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined 6.4.2 With regard to the question at to whether Lalitaben was in possession of the property as tenant or not is concerned, both the Courts below have observed that, the respondents are in possession of the plot in question since 1980 and were doing the business of coal at that time; and that various independent witnesses supported the case of the respondents that the respondents are in possession since the year 1980; and that adverse inference is drawn against the appellants by the Courts below; and that considering the various documentary evidence i.e. map, panchnama, etc., it cannot be said that the respondents have encroached upon the plot in question; and that the appellants have failed to produce the supportive evidence before the Courts below to show that the respondents are in illegal possession of the plot in question; and that the various documentary evidence - diaries, etc., as well as oral evidence produced by the respondents to prove that they are in possession of the plot in question since the year 1980 as tenant and have paid the deposit as well as were paying the rent regularly; and that the respondent has valid possession as tenant; and that the respondents are not the trespasser. Thus, it can be said that Lalitaben was in possession of the property as tenant. 6.5 At this stage, it is relevant to refer to the judgment of the Hon'ble Apex Court in the case of Gurbachan Singh (Dead) Through Lrs Gurcharan Singh (Dead) Through Lrs and Others., reported in 2023 SCC Page 12 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined Online SC 875, more particularly paragraphs 7, 14 and 15 thereof, which read as under :
"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section
100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:--
"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of Page 13 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para 21) "21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article Page 14 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law"
as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v.
Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Page 15 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] :
(Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5) '5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.' Page 16 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined
28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)
14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court.
However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:--
"(i) the courts below have ignored material evidence or acted on no Page 17 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from Page 18 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined material irregularity" the court will be justified in interfering with such findings."
6.6 There cannot be any dispute with regard to the law enunciated in the decisions of the Hon'ble Apex Court relied upon by the learned advocate for the appellants, however, it cannot be helpful to the appellants any further in view of the facts and circumstances of the present case. The present case does not fall within the purview of these decisions with such facts. Therefore, the present appeals deserve to be dismissed.
7. Thus, from the above facts and circumstances of the case and considering the impugned judgments and observations made by the learned Courts below, this Court is of the opinion that learned Courts below have not committed any error in passing the impugned judgments. The impugned judgments of the learned Courts below are just, proper, in accordance with law and in consonance with the material available on the record as well as after properly appreciating the documentary as well as oral evidence produced on the record. There is no perversity or illegality in the impugned judgments passed by the learned Courts below. Both these appeals, therefore, need to be dismissed and are dismissed Page 19 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024 NEUTRAL CITATION C/SA/88/1997 JUDGMENT DATED: 08/05/2024 undefined accordingly. Interim relief, if any, stands vacated.
8. In view of dismissal of appeals, respective Civil Applications would not survive and are disposed of accordingly.
(SANDEEP N. BHATT,J) M.H. DAVE Page 20 of 20 Downloaded on : Thu May 09 20:49:18 IST 2024