Gujarat High Court
Jagdishbhai Kantibhai Patel ... vs Kiritbhai Narandas Patel on 19 June, 2025
NEUTRAL CITATION
C/FA/4827/2022 JUDGMENT DATED: 19/06/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4827 of 2022
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4827 of 2022
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2024
In R/FIRST APPEAL NO. 4827 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/FIRST APPEAL NO. 4827 of 2022
With
R/FIRST APPEAL NO. 4826 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
✔
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JAGDISHBHAI KANTIBHAI PATEL PROPRIETOR OF SHREE UMIYA
SALES
Versus
KIRITBHAI NARANDAS PATEL
==========================================================
Appearance:
DHRUVIK K PATEL(7769) for the Appellant(s) No. 1
ANAND R PATEL(7352) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 19/06/2025
COMMON ORAL JUDGMENT
1. The captioned First Appeals are filed under Section 96 read with Order 41 of the Civil Procedure Code, 1908 by the appellants - Jagdishbhai Kantibhai Page 1 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined Patel - original defendant of Civil Suit No.687 of 2016 and original plaintiff of Civil Suit No.2710 of 2014, challenging the common judgment and decree dated 30.08.2022 passed by the City Civil Court, Ahmedabad in Civil Suit Nos.2710 of 2014 and 687 of 2016.
2. Heard learned advocate Mr.Dhruvik Patel for the appellants and learned advocate Mr.Anand Patel for respondent.
3. First Appeal No.4826 of 2022 is arising out Civil Suit No.2710 of 2014 which was filed by Jagdishbhai Kantibhai Patel - appellant herein seeking relief of declaration and permanent injunction and First Appeal No.4827 of 2022 is arising out of Civil Suit No.687 of 2016 which was filed by Kiritbhai Narandas Patel - respondent herein for recovery of possession of suit premises coupled with prayer of mesne profit. Page 2 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025
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4. Since both the suits were filed for the same property and controversy and parties in both the suits were common, both the suits were tried together and by a common judgment and decree dated 30.08.2022, Civil Suit No.2710 of 2014 came to be dismissed and Civil Suit No.687 of 2016 came to be decreed.
5. Brief facts of the case are as under:
5.1 Plaintiff of Civil Suit No.687 of 2016 Kiritbhai Narandas Patel is the owner of Shop No.33 situated in Panchvati Estate, Naroda Road, Taluka City Mauje:-
MEMCO District and Sub-district- Ahmedabad. The said property has been referred to as the "suit property" in both the suits.
5.2 Plaintiff- licensor gave suit property to the de-
fendant - licensee on an unregistered Rent Agreement dated 05.07.2010 for a period of 11 months and 29 days. Page 3 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025
NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined The agreed rent was Rs.2,500/- per month. The Rent Agreement expired on 04.07.2011. Upon expiry, plaintiff requested possession of the suit property. Although, the defendant promised to vacate the premises, instead of doing so, defendant - licensee Jagdishbhai Kantibhai Patel, filed a suit for declaration and permanent injunction being Civil Suit No.2710 of 2014 before the City Civil Court, Ahmedabad. Plaintiff - licensor in Civil Suit No.687 of 2016 claimed possession of suit property and also claimed mesne profit at Rs.9,000/- per month with a 20% increase on the said amount as mesne profits.
6. For the sake of convenience, parties are referred to as the appellant and respondent herein.
7. Summons were served upon respective defendants of respective suits. Respondent herein appeared and filed Written Statement at Ex.21. Appellant, who was Page 4 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined defendant in Civil Suit No.687 of 2016, appeared and filed Written Statement at Ex.15. On the basis of pleadings, the learned Trial Court framed the following Issues at Exhibits 34 and 19 respectively:
Issues of Civil Suit No.2710 of 2014
1.Whether the plaintiff that the suit property has been given on rent to the plaintiff by the defendant by way of agreement with monthly rent of 2500/-
as alleged?
2. Whether the plaintiff proves that under the (sic) defendant is trying to take possession of the suit property forcefully from the plaintiff?
3. Whether the plaintiff is entitled to get decree for possession of the suit premises?
4. Whether the plaintiff is entitled to get decree for mesne profit? If yes, what amount?
5. Whether the defendant is entitled to retain pos- session of the suit property?
6. Whether the plaintiff is entitled to get the relief as prayed for in the plaint?
7. What order and decree?
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NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined Issues of Civil Suit No.867 of 2016
8. Whether the plaintiff proves that he had given the suit property to the defendant by way of agree- ment with monthly fees of Rs.2,500/- as alleged?
9. Whether the plaintiff proves that though the time of agreement is over, the defendant has failed to hand over possession of the suit property as al- leged?
10. Whether the plaintiff is entitled to get decree for possession of the suit property?
11. Whether the plaintiff is entitled to get decree for mesne profits? If yes, what amount? 12 Whether the defendant is entitled to retain pos- session of the suit property?
13. Whether the plaintiff is entitled to get the relief as prayed for in the plaint?
14. What order and decree?
8. Appellant-Kiritbhai Narandas Patel examined himself at Ex.24. Respondent - Jagdishbhai Kantibhai Patel examined himself at Ex.37. Documentary evidence such as Rent Agreement, Corporation Tax Bills, Sales Tax, Page 6 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined Registration Certificate, Trade Mark Registration Certificate, Invoices and other relevant documents were produced. After considering the evidence on record, learned Trial Court dismissed Civil Suit No.2710 of 2014 and decreed the Civil Suit No.687 of 2016 by directing appellant - licensee to handover peaceful and vacant possession of the suit property within 90 days from the date of judgment and further directed to pay mesne profit at monthly rent of Rs.2500/- with 15% increase every year to respondent - licensor-plaintiff from 04.07.2011 till realization. The amount deposited by appellant-defendant- licensee before the Court was ordered to be adjusted.
9. Being aggrieved and dissatisfied with dismissal of the suit and decreeing the suit, appellant has filed present First Appeals.
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10. Learned advocate for the appellant -Jagdishbhai Kantibhai Patel submitted that the appellant is carrying on business of wholesale crockery and glassware in the name and style of Umiya Sales at the suit property since 2008 as a tenant. The Rent Agreement dated 05.07.2010 was exe- cuted between the appellant and respondent. Agreed rent was Rs.2500/- per month excluding liability of Municipality Tax. Appellant was regularly paying rent amount to the re- spondent. Appellant was ready and willing to pay rent. However, no rent receipts were issued by respondent to the appellant. Respondent threatened the appellant with illegal dispossession. Under the pretext of requirement of suit property, respondent threatened appellant to dispossess. Such threat was given by respondent before one week of institution of the suit. Facing threats from respon- dent, appellant filed a suit seeking prayers of declaration of tenancy and a relief of permanent injunction. After Page 8 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined about 2 year of the institution of the said Suit, respondent herein filed a suit for possession and mesne profit against appellant.
11. It is submitted that prior to the institution of suit, appellant was not in arrears of rent and respondent was accepting rent from the appellant. Appellant deposited rent amounts in Court after the institution of Civil Suit. In the absence of any notice of termination of tenancy, the suit of the respondent is barred under Section 106 of the Transfer of Property Act. The appellant is a tenant at sufferance as after the expiration of Rent Agreement on 04.07.2010, respondent was accepting rent regularly without any protest.
12. So far as mesne profits are concerned, the agreed rent was Rs.2500/-. However, respondent did not Page 9 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined led any evidence to substantiate the claim rise of 20% increase on Rs.9,000/- per month as mesne profit. There is no documentary evidence to substantiate the claim of mesne profits, and learned Trial Court has erred in directing the appellant - defendant to pay mesne profit of Rs.2500/- with 15% yearly increase from 04.07.2011.
13. It is submitted that, the respondent, in his cross-examination at Ex.24, has admitted that the appellant has regularly paid rent upto 04.07.2011. Respondent has also admitted that no notice of arrears was given by respondent. The first Rent Agreement was executed between appellant and respondent on 02.02.2008 for a period of 11 months 29 days and after expiry of the said agreement, renewal Rent Agreement at Ex.29 was executed between the parties on 05.07.2010 on the same terms and conditions. Appellant has established by documentary Page 10 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined evidence such as Corporation Tax Bills, Registration Certificate issued by Central Sales Tax (Registration and Turnover), Rules 1957 and various retail invoices of Shri Umiya Sales that he is in possession of the suit property and enjoying the same as a tenant.
14. Per contra, learned advocate for respondent - licensor has supported the judgment and decree passed by the learned Trial Court. It is further submitted that the Rent Agreement at Ex.28 was the first document, under which, the suit property was given to the appellant. On completion of the lease period, a renewal Rent Agreement at Ex.29 was executed between the parties on 05.09.2010. Both documents are unregistered. After completion of period of Rent Agreement i.e. 04.07.2011, no further renewal agreement was executed.
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NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined 14.1 It is further submitted that, on completion of the period of lease, the status of appellant would be that of a permissive user and when the specific demand of possession was made by the respondent, it would amount to termination/revocation of permission to use. The appellant in his suit, has alleged that respondent sought possession of the suit property which was culminated into the suit for declaration and permanent injunction filed against the respondent. It is further submitted that once the period of agreement expires, the appellant has no other option but to surrender possession. It is submitted that though the agreement is nomenclature as rent agreement, the intention of the parties was to create a leave and license agreement.
14.2 Notification dated 30.10.2001 issued by the State of Gujarat, whereby vide Gujarat Act No.27 of 2001 Page 12 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined amendment was made after Sub-section 1A of Section 4 of the principal Act, which is reproduced as under:
"1(A) This Act shall not apply to -
(a) any premises constructed on or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Second Amendment) Act, 2001 (hereinafter referred to as 'the amending Act")
(b) any existing premises which is self-occupied by the owner of vacant on or after the commencement of the amending Act, and is let after such commencement.
For a period of ten years from the date of the commencement of the amending Act.
Explanation: For the purpose of this section "existing premises" means any premises which exists on the date of the commencement of the amending Act".
The Notification dated 30.10.2001 issued by the State Government, the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 has been suspended w.e.f 2001 for a period of 10 years. It is further submitted that once the Rent Act has been suspended, the question of relationship of landlord and tenant between the parties Page 13 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined would not arise at all and the parties would be governed under the provisions of Transfer of Property Act. 14.3 It is further contended that once a suit for declaration and permanent injunction is filed by the appellant wherein it has been alleged that the respondent has sought possession of the suit property that would amount to a deemed notice to the appellant - licensee and therefore, no separate notice is required to be given to the appellant terminating/revoking permission to use and asking for possession. The respondent, thereafter, filed a suit for recovery of possession coupled with a prayer for mesne profits would also amount to a notice to the appellant revoking his permission to use and therefore also no separate notice terminating tenancy/licence is required to be given to the appellant.
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NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined 14.4 It is submitted that, appellant in the aforesaid set of facts, appellant cannot be termed as a tenant at sufferance since the Bombay Rent Act has been suspended and the provisions contained under the Bombay Rents Act are not applicable to the parties to the present proceedings. Question of claiming tenant at sufferance is out of place and such question would not arise when the appellant has occupied the suit property after suspension of the Bombay Rent.
14.5 In support of his contention, learned advocate for respondent has relied upon the following decisions:-
(i) Maria Margarida Sequeira Fernandes and Others Vs. Erasmo Jack De Sequeira (Dead) Through LRS.
Reported in (2012) 5 SCC 370;
(ii) Satendra Singh Vs. Vinod Kumar Bhalotia reported in 2014(0) AIJEL-SC 56024;
(iii) Dipak Rasbiharilal Goyel Vs. Nalinben H. Raval reported in 2012(0) AIJEL-HC 226723.
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NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined 14.6 Reliance is placed upon the case of Maria (supra), in paragraph No.97, the principles of law has been crystallized as under:-
"97 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 of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.Page 16 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025
NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined 14.7 Reliance is placed upon the case of Satendra Singh (supra), in paragraph No.15, the Hon'ble Supreme Court has observed as under:
"15.The consideration recorded hereinabove demonstrates, how the process of law has been sought to be misused, to defeat a simple claim of eviction, on the expiry of a rent agreement. Even though, as already noticed hereinabove, the rent agreement was for a period from August, 1981 to June, 1982, and the petitioner should have voluntarily vacated the suit premises, and should have handed over the possession of the suit premises voluntarily to the respondent- landlord in July, 1982, he has successfully repulsed all attempts of the respondent-landlord, to recover the possession of the suit premises. The petitioner-tenant is still in occupation of the premises even though more than 32 years have been elapsed, since the expiry of the rent agreement. It was in the instant background, that this Court had issued notice to the petitioner, calling upon him to show cause, why he should not be required to pay user charges at the rate of Rs. 1,000/- per month with effect from 1.7.1982".
14.8 Reliance is placed upon the case of Dipak Goyel in paragraph No.10, this Hon'ble Court has observed as under:
"[10] Another facet of the arguments which have been emphasized by learned advocate Mr.J. R. Shah referred to the provisions of the Transfer of Property Act Page 17 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined particularly section 106 and section 111(a) to emphasize that the Transfer of Property Act would be attracted even if the Rent Act is not applicable. In that case such possession cannot be recovered without following the procedure and issuance of notice as contemplated under the provisions of the Transfer of Property Act particularly section 106 is also misconceived. Both the aforesaid submissions, proceed on the assumption that it is a lease and the agreement is a lease agreement. It is required to be noted again, as per the leave and licence agreement at Ex.26, it has been specifically stipulated in the agreement itself that the possession of the premises is given on leave and licence basis for the period of 11 months only and not as a lessee or tenant. Further, the provisions of Section 106 of the Transfer of Property Act provides with regard to the termination of a lease and the notice in absence of any agreement or written contract. However, in the facts of the case, there is specific leave and licence agreement between the parties which provides for the aspects like, the possession is handed over on leave and licence agreement for a period of 11 months making it clear that it is not a lease and that the appellant cannot claim any right or possession as a lessee or a tenant. Therefore, when there is is expressed stipulation in the contract / leave and licence agreement providing for such aspects that Section 106 of the Transfer of Property Act will not have any application as it refers to the lease. Further as stated above again it refers to the lease where there is no contract whereas in the facts of the case there is a separate leave and licence agreement at Ex.26 between the parties. Therefore, this submission made by learned advocate Mr.J. R. Shah also would not have any application. The submission made by learned advocate Mr.J. R. Shah to claim any right as a tenant or a lessee cannot be accepted in light of the specific leave and licence agreement at Ex.26 coupled with the fact that the operation of the Rent Act has been suspended for Page 18 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined 10 years and the statutory provisions of the Rent Act would not be attracted. Therefore, the submissions made by learned advocate Mr.J. R. Shah cannot be accepted. The submissions made by learned advocate Mr.J. R. Shah to claim any right as a tenant or a lessee cannot be accepted in light of specific leave and licence agreement at Ex.26 coupled with the fact that the operation of the Rent Act has been suspended for a period of 10 years and the statutory provisions of the Rent Act would not be attracted. The reliance has been placed by learned advocate Mr.Shah referring to the decision in the case of Lalchand etc. Vs. State of Haryana, reported in AIR 1984 SC 226, will not have applicable. Similarly the reliance has been placed by learned advocate Mr.Shah referring to the decision in the case of P. Ramasami Naidu Vs. Venkataramajulu Naidu and another, reported in AIR 1914 Madras 301 again would not be applicable as it refers to the lease whereas in the facts of the case, it is a case of leave and licence agreement. Similarly, the reliance has been placed by learned advocate Mr.Shah the decision of Calcutta High court in the case of Shyam Sundar Ganeriwalla Vs. Delta International Limited, reported in 1998 (2) RCR 199, does not apply in light of the specific notification issued by which the provisions of the Rent Act have been suspended. Similarly, unless it could be proved prima facie with the evidence that it was a lease, the Transfer of Property Act would also not be any applicability. Therefore, as discussed above, the submission has to be considered in the background of the facts and material on record and there is no doubt about the fact that it was not an agreement of lease but it was an agreement for leave and licence. The observations which have been referred to are made with reference to the facts applicable in a given case of lease and not in the present case".Page 19 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025
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15. I have considered rival submissions canvassed by learned advocates for the respective parties and also perused the record and proceedings. The suit property which is a shop given to the appellant - plaintiff of Civil Suit No.2710 of 2014 by executing an unregistered Rent Agreement dated 02.02.2008 Ex.28 for a period of 11 months and 29 days. The agreed rent was Rs.2500/- per month excluding Municipal Taxes. On completion of period of agreement, renewal Rent Agreement at Ex.29 was exe- cuted between the parties on same conditions on 05.07.2010. Undisputedly, the subsequent Rent Agreement expired on 04.07.2011 and thereafter there was no renewal or fresh Rent Agreement executed in favour of appellant.
It appears from the averments made in the plaint that owner- defendant gave threats of eviction and upon such cause of action, licensee - appellant filed a suit for declaration of tenancy and permanent injunction. It is Page 20 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined the contention of appellant that he is the tenant of suit property enjoying possession since 2008 and carries on business of selling wholesale crockery and glassware in the name and style of Umiya Sales. It is also the case of ap- pellant that, he is having all valid licences issued by Ahmedabad Municipal Commissioner for running the busi- ness. He is also having a certificate of registration issued by Ahmedabad Municipal Corporation for professional Tax and he has been regularly paying rent and Municipal Taxes. Documents are produced by appellant are sufficient evidence that he is in possession of suit property and run- ning a business.
16. Be that as it may, what is under considera- tion is whether an occupier/lincensee/permissive user of the property be permitted to retain possession of the prop- erty after the expiration of period of rent agreement/leave Page 21 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined and licence agreement. When the parties agreed by rent agreement that the duration of the Rent Agreement would be 11 months and 29 days, unless there is an extension of rent agreement in writing, the occupier licnesee/lessee looses his right to retain possession over the property. The possession of a licensee/lessee permissive user can be protected only during subsisting and valid written agree- ment. Once the agreed period to retain possession is com- plete, the person occupying the property would be termed as a permissive user and on day, on which, licensor/owner demands actual, peaceful and vacant possession of the property, permission to occupy the property is cancelled/ revoked and the status of occupier on such eventuality would be that of a trespasser. Even if the document is ti- tled as rent agreement, the intention of parties can be gathered from the terms and conditions stipulated in the agreement. Merely because agreement is labeled as rent Page 22 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined agreement, the agreement would not be treated as lease agreement/rent agreement.
In the present case, it is the specific contention of appellant in the plaint that before one week of the in- stitution of the suit, by not accepting the rent by respon- dent - owner, appellant was threatened by respondent to be evicted from the suit property. The suit for declaration of tenancy is misconceived and ill advised litigation. When the parties are not governed by the provisions of the Bom- bay Rent Act/Gujarat Rent Act, declaration of tenancy is nothing but an abuse of process of law by dragging the rightful owner into a lengthy and complicated process of litigation.
17. It is pertinent to observe at this stage that, the plaintiff -Jagdishbhai Kantibhai Patel, for reasons best known to him, has deliberately suppressed in the plaint Page 23 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined first Rent Agreement executed between the parties on 02.02.2008 and has mentioned only the second Rent Agreement dated 05.07.2010. Plaintiff did not aver that no further renewal of the Second Rent Agreement was exe- cuted between the parties. Merely by having permissions issued by Government/Corporation to run a business can- not be construed to retain possession as a tenant/licensee after the period of completion of period of agreement. Such license/ permission issued by Government/Corporation is for a different reason i.e. for levying taxes from the per- sons, who is running a business in the premises. Paying of Municipality Tax and Education Tax also would not led to a tenancy since such taxes are levied by Corporation under a different statute. Reflecting name in tax bill, electricity bills are for fiscal purposes. To substantiate a claim of tenancy, there has to be either a written contract of tenancy or rent receipts or by direct Page 24 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined and specific conduct of the landlord/owner/licensor ac- cepting the person as a tenant. Long standing possession of a property would not led to a tenancy unless expressly agreed upon between the parties. To claim a tenancy, mere possession is not a sufficient evidence.
18. If the oral evidence of parties are perused, it appears that, there is no quarrel on a fact that two Rent Agreements were executed between the parties and after 04.07.2011, there is no renewal. What is only contended at this stage by learned advocate for the appellant is that since expiry of the Rent Agreement, respondent has been accepting rent till 2016 and even pending suit, rent amount has been regularly deposited by appellant in the Court and therefore, appellant is a holding over a tenant.
19. Section 116 of Transfer of Property Act, 1882 has been reproduced as under:-
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NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined "116. Effect of holding over.--
If a lessee or under-lessee of property remains in pos- session thereof after the determination of the lease granted to the lessee, and the lessor or his legal repre- sentative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the con- trary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106."
20. Section 116 of the Transfer of Property Act pro- vides for creation of tenancy by holding over in two cir- cumstances, one, where the lesser or his legal representa- tive accepts rent from the lessee and second assents to his continuing in possession. The words accept rent or other- wise, assents to his continuing in possession in section 116 contemplates that from the side of lessee, there should be an offer to take a new lease and on the side of lessor there must be a definite consent to the continuation of possession. tenancy of holding over is a creature of a bi- lateral act and does not come into existence by mere uni- Page 26 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025
NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined lateral intendment of declaration of one of the parties. The expression holding over means that relationship of landlord and tenant was allowed to continue with consent of both the parties.
If a tenant after termination of lease is in pos- session without the consent of the landlord, he is a tenant by sufferance.. It is only where a tenant will continue in possession with the consent of the landlord that he can be called a tenant holding over or a tenant that will.
The plaintiff has not claimed his tenancy as a holding over tenant or tenant at sufferance. But has only pleaded that when the appellant went to offer a rent, the owner refused to accept rent and threaten the apple to the suit property. In paragraph number six of the plaint, it is pleaded by the plaintiff that time and again the applicant offered the rent, but the respondent refused to accept the rent. It is during the pendency of the proceedings, appli- Page 27 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025
NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined cant has deposited the amount with the court. In exhibit 37, examination in chief appellant tried to improvise his stand made a statement for the first time that after com- pletion of the period of rent agreement, respondent has ac- cepted rent from appellant. Thus, two exactly opposite stand has been raised by appellant. There is no evidence on record that after alleged threat given by respondent to appellant , with the consent of respondent, the appellant continued to remain in possession and the rent was paid pursuant to such consent given by respondent.
21. The submission on claiming tenancy at suffer- ance is misconceived for the simple reason that the agree- ment between the parties have been executed after 2001 and even if the document referred parties as 'tenant' and 'landlord' respectively, would not establish a relationship of a tenant and landlord respectively. Page 28 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025
NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined
22. As discussed above, the Bombay Rent Act has been suspended by Notification dated 30.10.2001 provi- sions of the Bombay Rent Act would not apply to the par- ties to this proceedings.
23. To make the statement made in Examination-in- chief considered, there has to be a pleading/averment in the plaint. Any statement on facts stated in examination in chief not pleaded in the plaint or written statement has no evidentially value, unless a new facts have developed af- ter plaint or written statement is filed.
24. Sub-section (12) of Section 2 of the Code of Civil Procedure, 1908 defines mesne profits, which is re- prodduced as under:-
"2(12) "mesne profits" of property means those profits which the person in wrongful possession of such prop- erty actually received or might with ordinary diligence have received therefrom, together with interest on such Page 29 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined profits, but shall not include profits due to improvements made by the person in wrongful possession".
25. The aforesaid provision mandates that those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom together with interest on such profit be called mesne profits. A claim for mesne profits would ordinarily be made in a suit for recovery of immov- able property or suit for eviction from an immovable property. However, in cases where in the suit claiming for mean profits, a precise estimation of claim is not available. The plaintiff may mention an approximate amount or call upon the court to measure the amount after taking all un- settled accounts between the parties into consideration. The burden of proof in such cases lies upon the Party who is claiming that the other party is in illegal possession of the property of which the claimant is a rightful owner. Page 30 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025
NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined Mesne profits are the calculated on case to case basis and there is no singular method of calculation. Mesne profits is the amount paid to the lawful owner of the property in damages by the wrongful possessor. The court has to de- termine the amount on a comparative assessment of the nature of suit property, its location, age, and condition as well as an analysis of the valuation of the lease in the concerned area, the rental price of the property, the rental price claimed in the plaint among several other factors.
26. In the present case, respondent in his plaint has claimed 20% increase on Rs.9,000/- per month from 03.07.2011 as mesne profit. In the plaint, the area and lo- cation, where the suit property is situate is pleaded. It has also pleaded that area has developed on a large scale after 2010 and the market value of the suit property has also increased to a great extent. The nearby properties of other Page 31 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined owners/occupiers, market value has increased on a large scale. The appellant - licensee is occupying the suit prop- erty without any written permission and because of the possession being retained by appellant, respondent is not in a position to use and develop property for his own pur- pose. The owner is deprived of income that may be de- rived by using the suit property. The licensee fees/rent of properties surrounding suit property has been increasing every two years. The said contentions are simply and casu- ally denied by appellant in his Written Statement at Ex.15. If the Examination-in-chief of the respondent recorded at Ex.24 is perused, the same contentions are narrated in Ex- amination-in-chief but respondent - owner has not been contradicted by appellant with regard to development of area where suit property is situate which has undergone after 2010. There is neither contrary questions put to the respondent nor serious contest is raised by appellant on Page 32 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined appreciation of market value of the suit property as well as properties surrounding the suit property.
27. On the other hand, if the cross-examination of the appellant, which is recorded at Ex.37, is considered, appellant has admitted in the cross-examination that the road on which the suit property is situated, has been developed, and rate of rents of other properties surround- ing the suit property has been increased. The area and the location were the suit property is situated has been developed and if a shop is taken on rent in the year 2021, the rent is prevailing is Rs.12000-15000/- per month. On considering such oral deposition of the parties, a fact which has emerged on record is that, the area and location where the suit property is situated has been developed and the businesses have been flourished and considering such evidence, learned Trial Court directed the Page 33 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025 NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined appellant to pay mesne profit of monthly rent of Rs.2500/- with 15% increased in every year from 04.07.2011 till real- ization. The conclusion on mesne profit is not without any base. However, the same is arrived at by learned trial Court on undisputed facts emerge during the course of oral deposition. Admitted oral statements during deposition of parties is best available evidence in determining mesne profits in such type of cases. In absence of any documentary evidence, oral deposition of parties is the best available evidence and Court can certainly rely upon such oral evidence.
28. In the background of the above discussions and in view of the facts and circumstances of the case, I do not find any merit in First Appeals. Resultantly, both First Appeals are hereby dismissed. Interim relief, if any, stands vacated.
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NEUTRAL CITATION C/FA/4827/2022 JUDGMENT DATED: 19/06/2025 undefined
29. After completion of dictation, learned advocate for the appellant has requested for stay of this order.
30. Learned advocate for respondent has objected to such request and submitted that since January 2024, appellant has not deposited any amount as directed by this Hon'ble Court while granting stay. Therefore, no stay may be granted.
31. Request for stay is rejected.
32. In view of the dismissal of present First Appeals, connected Civil Applications stand disposed of accordingly.
33. Record and proceedings, if any, received, be sent back to the concerned Court/Tribunal.
(D. M. DESAI,J) MANOJ Page 35 of 35 Uploaded by MANOJ KUMAR(HC01092) on Tue Jul 15 2025 Downloaded on : Fri Jul 18 21:21:33 IST 2025