Gujarat High Court
Abdul Salam Azmi Haji Mohmed Ibrahim ... vs Mohmed Ayub Haji Mohmed Ibrahim Shaikh ... on 14 August, 2024
NEUTRAL CITATION
C/FA/2224/1999 JUDGMENT DATED: 14/08/2024
undefined
R/FIRST APPEAL NO.2224 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI Sd/-
=====================================================
1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
=====================================================
ABDUL SALAM AZMI HAJI MOHMED IBRAHIM SHAIKH
Versus
MOHMED AYUB HAJI MOHMED IBRAHIM SHAIKH THRO'HEIRS &
ORS.
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Appearance:
MR JA ADESHRA(107) for the Appellant(s) No. 1
MR A R SHAIKH(815) for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5
MR CHINMAY M GANDHI(3979) for the Defendant(s) No. 1.2,2.3
PETITION/APPEAL WITHDRAWN/DISMISSED for the Defendant(s)
No. 2.4,2.5
RULE SERVED BY DS for the Defendant(s) No. 2.1,2.2
=====================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 14/08/2024
ORAL JUDGMENT
1. Present appeal is filed under Section 96 of the Page 1 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined Civil Procedure Code, 1908 (for short, hereafter referred to as `the Code') challenging the judgment and decree dated 11.1.1999 passed by City Civil & Sessions Court, Ahmedabad in Civil Suit No.2281 of 1987.
2. Heard learned advocate Mr. J. A. Adeshara for the appellant - original defendant No.1 and learned advocate Mr. Chinmay Gandhi for the respondents - original plaintiffs at length. Perused record and proceedings.
3. The brief facts leading to this appeal are as under:-
3.1 The plaintiff Dr. Mohmed Ayub Haji Mohmed Ibrahim Shaikh filed a suit for partition of the property bearing city survey No.3518, Page 2 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined Municipal Census No.2703, admeasuring 137 square yards situated at Kalupur Sodagar's Pole, Ahmedabad and prayed for the accounts, tenancy rights, goodwill etc. in the rented property bearing Survey No.2405/5, Municipal Census No.1297 situated near Peer Mohmad Roza, Kalupur, Ahmedabad. The suit property bearing survey No.3518 was purchased by father of the plaintiff Dr. Mohmed Ayub Haji Mohmed Ibrahim Shaikh vide registered sale deed dated 25.2.1955. Thereafter, the said property was divided into three sub plots being 3518/A, 3518/B and 3518/C. The property bearing survey No.2405/5 was a rented property and the father of plaintiff was the original tenant. The said property was taken on rent by father of the plaintiff from the trust. Father of plaintiff was carrying on business of scissors, Page 3 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined knives etc. under the name of `Mairuth Scissors'. Pending suit, plaintiff Dr. Mohmed Ayub Haji Mohmed Ibrahim Shaikh passed away and his heirs were brought on record. Defendant No.3 was deleted from the array of parties pending suit.
3.2 After the death of plaintiff's father, the tenancy rights of Survey No.2405/5 was transmitted in favour of mother - Gafarunnisa.
Upon death of the mother in the year 1962, the heirs of Gafarunnisa became entitled to inherit their share in the rented property. As defendant No.1 tried to usurp the shop by fabricating writing, the plaintiff filed the suit for partition of property No.3158, Municipal Census No.2703 and share in goodwill, tenancy rights in the property bearing Survey No.2405/5, Municipal Page 4 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined Census No.1297.
3.3 Defendant No.1 filed his Written Statement at Exh.22. Defendant Nos.2/1 to 2/5 filed their Written Statement Exh.20 and supported the case of plaintiff. Defendant No.1 contested the suit on the ground that the original plaintiff Dr. Mohmed Ayub Haji Mohmed Ibrahim Shaikh relinquished his share and rights of goodwill in favour of defendant No.1 by executing a writing on a stamp paper of Rs.10/- dated 17.7.1983. Heirs of deceased No.2 - Dr. Mohmed Ayub Haji Mohmed Ibrahim Shaikh also executed agreement dated 10.9.1976. It is contended that by virtue of the aforesaid writing, the plaintiffs and defendant Nos.2/1 to 2/5 have no right or share in the property. Defendant Nos.2/1 to 2/5 resisted the say of Page 5 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined defendant No.1 by contending that they have not relinquished their share in the property and further contended that defendant No.1 has not paid any amount to them under the Agreement. 3.4 Learned trial Court framed following issues at Exh.31:
"(1) Whether the Plaintiff proves that the property bearing Municipal Census No.2703 of Sodagar's Pole, Kalupur, Ahmedabad is of the co-
ownership of his and his brothers? (2) Whether the plaintiff proves that he has 1/3rd undivided share in the said property and he is entitled to claim his share in this property by partitioning the same? (3) Whether the plaintiff has any tenancy rights in the shop situated near Pir Mohmed Shah Roza?
(4) Whether the plaintiff proves that he is entitled to recover share in the goodwill of this shop from the defendant No.1?
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NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined (5) Whether the defendant No.1 proves that this shop was taken on rent by him and he is the tenant of this shop?
(6) Whether the defendant No.1 proves that the plaintiff had given up his right over this shop and he is not entitled to claim any share in the goodwill of this shop?
(7) Whether the plaintiff is entitled to ask for partition of the property bearing City Survey No.3518 by metes and bonds and also share in the goodwill of the shop situated near Pir Mohmed Shah Roza?
(8) What order and decree?"
3.5 After considering the evidence both documentary as well as oral, learned trial Court decreed the suit on 11.1.1999 by passing following order:
"It is hereby declared that the
property bearing survey No.3518
admeasuring and Municipal Census
No.2703 of Sodagar's Pole, Kalupur,
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NEUTRAL CITATION
C/FA/2224/1999 JUDGMENT DATED: 14/08/2024
undefined
Ahmedabad is of the co-ownership of the three bothers i.e. Dr. Mohmad Ayub Haji Mohmad Ibrahim, Dr. Abdul Salam Azmi and Mohmad Yasin Haji Mohmad and the plaintiffs as well as defendant No.2/1 to 2/5 being the heirs of two deceased brothers have equal share in this property. It is also declared that the plaintiffs are entitled to ask for the partition of this property and ask for their 1/3rd share in this property. It is further declared that the business run in the property bearing Municipal Census No.1297 situated on Pir Mohammad Shah Roza, Opp. Vrundavan Market is a family business wherein the aforesaid three bothers have equal undivided shares and that the plaintiffs are entitled to their 1/3rd share of the income from this business from the date of this suit and are also entitled to their share in the goodwill of this business.
It is therefore hereby ordered and decreed that the matter be referred to the Page 8 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined Commissioner for Taking Account for participating the property bearing Survey No.3518 by metes and bounds and to handover the plaintiffs their 1/3rd share in this property. If the property is not capable for being partitioned by metes and bounds in three equal shares then the Commissioner is empowered to sell this property with the right of the pre-emption to any of the co-sharers for purchasing the same and after selling the same to divide the amount realized in three equal shares.
The Commissioner is also directed to take the accounts of the income and expenditure of the business run in the suit shop from the date of the suit. He is also directed to ascertain the value of the goods and furniture, fixture etc. lying in the suit shop and also to ascertain the goodwill of the suit shop as of this date.
The Commissioner is also directed to present the account and his report to this Page 9 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined Court with all convenient dispatch after making all just allowances and that upon such report of the Commissioner bring received which shall be confirmed and countersigned subject to such modification as may be necessary after consideration of such objections as the parties to the suit may make and the final decree will follow.
Preliminary decree be drawn up
accordingly."
3.6 Being aggrieved and dissatisfied with
the impugned judgment and decree, the
appellant - original defendant No.1 is before
this Court.
4. Learned advocate Mr. J. A. Adeshra for the appellant has submitted that the assertion of tenancy rights by the plaintiff in the shop bearing Municipal Census No.1297 is a fallacy. Page 10 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024
NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined The said shop was taken on rent by the father of the original plaintiff and defendant Nos.1 and
2. Upon death of the father in the year 1957, the tenancy rights of the suit shop was transmitted in favour of mother - Gafarunnisa. Upon death of mother in the year 1966, original plaintiff, defendant No.1 and the legal heirs of defendant No.2 became joint tenants of said shop. By writing dated 17.7.1983, the plaintiff relinquished his share qua shop in favour of the defendant No.1. It is further contended that original plaintiff accepted Rs.25,000/- (Rupees twenty five thousand only) as goodwill amount. Similarly, heirs of defendant No.2 also relinquished their share from the shop by executing a writing dated 10.9.1976 and also accepted goodwill amount. Pursuant to the aforementioned relinquishment writings, the Page 11 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined tenancy rights have been vested in defendant No.1. Since 1983, defendant No.1 is in exclusive possession of the shop and carrying on the business of Ayurvedic Medicines. It is further contended that the learned trial Court has not properly appreciated the documents of relinquishment of rights and decreed the suit. No other submissions are put forward by learned advocate for the appellant.
5. Per contra, learned advocate Mr. C. B. Gandhi for the respondent submitted that since the learned trial Court has considered the oral as well as documentary evidence in detail, there is no reason to interfere in the findings which has been arrived at by the learned trial Court. It is further contended that in the entire evidence including the written statement, there is no Page 12 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined contest with regard to the fact that the father of the plaintiff and defendant No.1 have purchased the property bearing Survey No.3518, Municipal Census No.2073. Even plaintiff was not cross examined on this fact. Thus, the question with regard to the claim of co-ownership is uncontroverted and the only question remains is with regard to the tenancy rights as well as claim of goodwill in the rented shop being survey No.2405/5, Municipal Census No.1297. It is pointed out by the learned advocate for the respondent that the learned trial Court has observed that rent note which has been relied upon by defendant No.1 is of 1993 i.e. the pending the present suit. It is further pointed out that defendant No.1 has not proved by any documentary evidence that defendant No.1 was paying rent to the landlord trust prior to the suit Page 13 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined and even after writings dated 10.9.1976 and 17.7.1983. The rent receipts which are produced by defendant No.1 is of the year 1997 and the receipts which are issued by the landlord trust is pending the controversy and, therefore, those documents may not be relied upon in deriving a conclusion that defendant No.1 is tenant of the said shop. Another contention which has been raised by learned advocate for the respondent that the writings dated 10.9.1976 and 17.7.1983 claiming to be relinquishment of rights in the immovable property cannot be relied upon and cannot be considered as an evidence as both the writings are unregistered documents and when a party is alleged to have relinquished their share from the immovable property, any writings / document, if it is unregistered, cannot be Page 14 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined construed as an evidence. It is further submitted that the learned trial Court has rightly held that since both the writings are unregistered for the immovable property worth more than Rs.100/-; such writings cannot be construed to be a writing for giving up share in the immovable property. It is further submitted that plaintiff has never surrendered the tenancy rights. The transmission of tenancy is permissible only as per the provisions contained under Section 5(11)(c)(ii) of the the Gujarat Rents, Hotel & Lodging House Retes Control Act, 1947 (for short, hereinafter referred to as `the Rent Act').
6. It is further submitted that the right to terminate tenancy is a right of the landlord and the tenants inter se cannot terminate the Page 15 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined tenancy rights which are flowing from the provisions contained under the Rent Act. The learned trial Court has rightly considered the communication issued by the brothers to the City Survey Office requesting for partition of property bearing Survey No.3518, Municipal Census No.2703. However, upon the objections being raised by one of the brothers, the partition could not take place and the said property remained the property of brothers who have equal undivided 1/3rd share in the aforesaid property. No other submissions are put forward by learned advocate for the respondent.
7. I have considered the submissions canvassed by learned advocates for the respective parties and also perused the Record and Proceedings Page 16 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined which is placed before this Court.
8. The plaintiff has claimed partition and claimed share in the property bearing Survey No.3518, Municipal Census No.2703 situated at Kalupur Sodagar's Pole, Kalupur, Ward No.1, Ahmedabad and claimed tenancy rights, goodwill and accounts of business being run in the property bearing Survey No.2405/5, Municipal Census No.1297 which is admittedly in the possession of defendant No.1.
9. The undisputed fact surfaces on record is that the property bearing Survey No.3518 was purchased by the father of parties on 25.2.1955 by way of a registered sale deed. The said property was further subdivided into three sub- numbers being Survey No.3518/A, 3518/B and Page 17 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined 3518/C. From letter dated 4.10.1961, parties to the suit applied for separate numbers to be given to Survey No.3518. It is also contended in the application that parties have internally separated their shares. However, the partition could not be taken place because of some objections raised by one of the brothers. Thereafter, the said property remained a joint property. It is also culled out from the record and more particularly from the cross examination of plaintiff that defendant No.1 has not controverted the fact that the property bearing Survey No.3518 was purchased by father by a registered sale deed and the said property is being reflected in the record of City Survey as joint property. Since there is no contest on the fact with regard to the co- ownership rights of the brothers, the dispute Page 18 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined rest here and the learned trial Court has rightly concluded that the said property is a co- ownership property and rightly decreed the suit by declaring three brothers being co-owners of the property bearing Survey No.3518, Municipal Census No.2703 of Kalupur Sodagar's Pole, Ahmedabad. It has been further rightly held that each brother has equal 1/3rd share in the property and the said conclusion has been arrived at by the learned trial Court after considering the oral as well as documentary evidence in detail and I do not find any reason to interfere in the findings of fact.
10. The next question which pertains to the property bearing Survey No.2405/5, Municipal Census No.1297 which is a rented property situated near Pir Mohmad Roza, Kalupur, Page 19 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined Ahmedabad. The said property was given on rent by the trust to the father of the plaintiff as well as defendant Nos.1 and 2. Upon death of the father in the year 1955, tenancy rights of the said property was transmitted in favour of mother of parties namely; Gafarunnisa. Upon death of mother in the year 1966, all the heirs of deceased mother Gafarunnisa held joint tenancy rights in the said shop. The contention which has been raised by learned advocate for the appellant that pursuant to the writings dated 10.9.1976 and 17.7.1983, plaintiff No.1 and heirs of defendant No.2 relinquished their rights of tenancy as well as qua business in favour of defendant No.1. It is further seen from document dated 17.7.1983 (Exh.101) that defendant No.1 has decided goodwill of the shop at Rs.25,000/- (Rupees twenty five Page 20 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined thousand only) and the tenancy rights were agreed to be transferred in the name of defendant No.1. The reliance placed upon by learned advocate for the appellant on the writing dated 10.9.1976 (Exh.99) which is between the legal heirs of defendant No.2 and defendant No.1 also falls in the same line of relinquishing the possession and right in the shop.
11. On perusal of the aforesaid two writings / documents, the same are unregistered documents. It transpires from the record that Exh.78, a communication dated 1.2.1989 which is addressed to the landlord trust inter alia highlights the fact that the plaintiff objected to the transferring of tenancy rights in the name of defendant No.1. When there is a clear objection Page 21 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined with regard to transferring of tenancy rights in favour of defendant No.1, trust could not have executed any rent agreement in favour of defendant No.1 and that too pending the suit in the year 1993. Such rent note will not help defendant No.1 in asserting tenancy rights.
12. It would be apt to refer at this stage the provisions contained under Section 5(11)(c)(ii) of the Rent Act.
5(11)(c). "tenant" means any person by whom or on whose account rent is payable for any premises and includes,-
(i) xxx
(ii) in relation to premises let for business, trade or storage, any member of the tenant's family carrying on business, trade or storage with the tenant in the said Page 22 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage as the case may be, in the said premises and as may be decided in default of agreement by the Court];"
13. The provision contemplates that upon the death of the tenant, the family member who was carrying on business with the tenant at the time of death and continued the same business after the death, tenancy rights can be transmitted in favour of that person. The record in the present case reveals that the suit property being Survey No.2405/5, Municipal Census No.1297 was taken on rent by the father of the plaintiff, defendant Nos.1 and 2 for carrying on the business of scissors, knives etc under the name of `Mairuth Scissors' and as per the case of Page 23 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined defendant No.1, business of Ayurvedic medicines is being run in the suit shop.
14. The question of transmission of tenancy can only be considered in view of the provisions contained under the Rent Act. The heirs of the original tenant can certainly decide amongst themselves upon whom the tenancy rights would be devolved. But in absence of any agreement / consensus, the tenancy rights cannot be devolved upon one of the heirs of deceased - tenant. And for deciding the question upon whom the tenancy rights would devolve upon the death of the original tenant, the person who is claiming to be tenant has to get his right decided by filing appropriate proceeding before the competent Court having jurisdiction to try and decide such controversy Page 24 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined i.e. the Rent Court.
15. In the present case, in absence of such statutory compliance of deciding the tenancy rights, defendant No.1 cannot alone claim to be the tenant of the property bearing Survey No.2405/5, Municipal Census No.1297.
16. In the totality of facts, the learned trial Court has considered in detail the said aspect and thereafter has decreed the suit. Nothing adverse could be pointed out by learned advocate for the appellant, whereby, this Court can interfere in the assessment of evidence which has been done by the learned trial Court.
17. Accordingly, this appeal lacks merit and deserves to be dismissed and accordingly, it is Page 25 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024 NEUTRAL CITATION C/FA/2224/1999 JUDGMENT DATED: 14/08/2024 undefined dismissed with no order as to costs. Record and Proceedings, if any, be sent back to the concerned Court, forthwith. Interim Relief, if any, stands vacated forthwith.
Sd/-
(D. M. DESAI,J) VATSAL Page 26 of 26 Uploaded by VATSAL S. KOTECHA(HC00352) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:57:01 IST 2024