Gujarat High Court
Arjanbhai Vardhaji Kapdi vs Vardhaman Tap Ayambil Trust on 12 September, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/347/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 347 of 2017
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ARJANBHAI VARDHAJI KAPDI
Versus
VARDHAMAN TAP AYAMBIL TRUST
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Appearance:
MR ANKIT Y BACHANI(5424) for the PETITIONER(s) No. 1
MR N P CHAUDHARY(3980) for the RESPONDENT(s) No. 1
MR VIJAY R DESAI(5315) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/09/2018
ORAL ORDER
1. This second appeal under section 100 of the CPC is at the instance of the original defendant and is directed against the judgement and order dated 15th April, 2017 passed by the 2nd Addl. District Judge, Banaskantha in the Regular Civil Appeal No.36 of 2014 arising from the judgment and decree dated 2nd September, 2014 passed by the Principal Civil Judge, Dhanera in the Regular Civil Suit No.37 of 2006.
2. For the sake of convenience, the appellant herein shall be referred to as the defendant and the respondent herein shall be referred to as the plaintiff.
3. The plaintiff instituted the Regular Civil Suit No.37 of 2006 in the court of the Principal Civil Judge, Dhanera for possession of the suit property. The suit property is a house situated at village Aedal, Taluka: Dhanera, Dist: Banaskantha. The plaintiff is a charitable trust. The suit property came to be Page 1 of 5 C/SA/347/2017 ORDER purchased by the plaintiff from the original owner sometime in the year 1979. There is no dispute in this regard. The case of the plaintiff is that the defendant is a rank trespasser. The defendant is occupying the suit premises without any right, title or interest.
4. The defendant appeared before the Trial Court and contested the suit by filing his written statement vide Exh.19. According to the defendant, he is in possession and occupation of the suit property past 40 years. It is his case that he was put in possession of the suit property by the original owner, namely, Bhuriben Gulabchand Shah as a tenant and he used to pay Rs.5per month by way of a rent to the owner namely Bhuriben Shah. It is his case that there is no written agreement as regards the terms of the tenancy. According to the defendant, it was an oral contract. In such circumstances, the defendant pleaded that as he is in settled possession of the suit property past 40 years in his capacity as the tenant of the original owner, his possession cannot be said to be unlawful in any manner.
5. Having regard to the pleadings of the parties, the Trial Court framed the following issues;
"(1) Whether the plaintiff proves that he is entitled to institute a proceedings in accordance with law in relation to the properties of the ownership of the trust in his capacity as the administrator of the Vardhman Tap Ayambil Trust?
(2) Whether the plaintiff proves that he purchased the suit property of the ownership of the trust, situated within the limits of the Dhanera Nagar Palika being City Survey No.225 paiki, admeasuring 152-95 square meters consisting of two rooms, open space and Madh from the Page 2 of 5 C/SA/347/2017 ORDER original owners by way of a registered agreement of sale?.
(3) Whether the plaintiff proves that the defendant, without obtaining any permission, takes possession of the suit property and is using the same for his residence and inspite of giving notice, has not given the possession of the suit property?
(4) Whether the defendant proves that he had taken the suit property on rent for Rs.5/ per month from the original owner, namely, Bhuriben Gulabchand Shah 40 years ago by way of an oral agreement and since then he is in possession of the suit property?
(5) Whether the defendant proves that he is in possession of the suit property by way of an adverse possession?
(6) Whether the plaintiff is entitled to get the relief in terms of para-12 of the suit?
(7) What order and decree?"
6. The issues framed by the Trial Court, referred to above, came to be answered as under;
"(1) In the affirmative
(2) In the affirmative
(3) In the affirmative
(4) Partly in the affirmative
(5) In the negative
(6) In the affirmative
(7) As per the final order?
7. The Trial Court, upon appreciation of the oral as well as documentary evidence, came to the conclusion that the plaintiff has been able to prove his case and, accordingly, allowed the suit and passed a decree of eviction against the defendant. The defendant being dissatisfied with the judgment and decree passed by the Trial Court, preferred Regular Civil Page 3 of 5 C/SA/347/2017 ORDER Appeal No.36 of 2014 in the court of the District Judge, Banaskantha. The first appellate court, upon re-appreciation of the oral as well as documentary evidence, thought fit to dismiss the appeal and thereby affirmed the findings recorded by the Trial Court. Being dissatisfied with the judgment and order passed by the first appellate court, the original defendant is here before this Court with this second appeal under section 100 of the CPC.
8. The following questions have been formulated as the substantial questions of law in the memorandum of the second appeal;
"(1) Whether both the lower courts have erred in law in discarding the oral evidence produced by the defendant-
present appellant?
(2) Whether both the Trial and Appellate Court have erred in not appreciating documentary evidence produced by present appellant?
(3) Whether both the lower Courts have erred in not considering that the suit is time barred as per Limitation Act?
(4) Whether both the Lower Courts have erred in not considering issue of adverse possession?
(5) Whether the plaintiff-respondent has the legal right to carry out proceedings in property of Trust on behalf of Shri Vardhman Tap Ayambil Trust?
(6) Whether both the Lower Courts failed to appreciate that since said suit had not been filed under Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and thus, is not maintainable?"
9. Having heard the learned counsel appearing for the Page 4 of 5 C/SA/347/2017 ORDER parties and having considered the materials on record, the only question that falls for my consideration is whether there is any substantial question of law involved in this second appeal.
10. The concurrent finding of fact recorded by the courts below is to the effect that the defendant has not been able to establish any right, title or interest over the suit property. The defendant has not been able to explain as to in what circumstances, he is in occupation and possession of the suit property. The two courts below have recorded a finding that the defendant has not been able to prove any tenancy rights in the suit property.
11. On the other hand, the plaintiff is the owner of the suit property by virtue of a sale deed executed by the original owners way back in the year 1979. Both the courts below have rejected the plea of adverse possession.
12. In my view, none of the questions formulated in the memorandum of the second appeal can be termed as the substantial questions of law. I see no good reason to disturb the findings recorded by the two courts below in exercise of powers under section 100 of the CPC.
13. In the result, this second appeal fails and is hereby dismissed.
(J.B.PARDIWALA, J) Vahid Page 5 of 5