Gujarat High Court
Subhashbhai Rasiklal Modi vs Sarlaben Chimanlal Vyas on 12 June, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SA/146/1995 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 146 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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SUBHASHBHAI RASIKLAL MODI....Appellant(s)
Versus
SARLABEN CHIMANLAL VYAS....Respondent(s)
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Appearance:
MR IS SUPEHIA, ADVOCATE for the Appellant(s) No. 1
MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 12/06/2014
ORAL JUDGMENT
Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 is preferred by the Page 1 of 7 C/SA/146/1995 JUDGMENT appellant-original plaintiff seeking to challenge judgment and order dated 31st March, 1995 of learned Extra Assistant Judge, Vadodara in Regular Civil Appeal No.277 of 1995. Thereby, the said Civil Regular Appeal of the original defendant came to be allowed, and judgment and decree dated 25th September, 1985 passed by the Trial Court in Regular Civil Suit No.1112 of 1975 came to be set aside.
2. Allowing aforesaid Regular Civil Suit No.277 of 1995of the appellant herein, Court of learned Civil Judge (J.D.), Padra, at Deputation at Vadodara, held that the defendant was licencee and further directed the defendant to hand over vacant and peaceful possession of the suit property. In the Civil Suit, it was the case of the plaintiff that house property situated in the Shyamal Bechar's Street in Vadodara bearing Survey No.76/1 and Census No.SH-3/575 originally belonged to one Chandaben wd/o. Das Chimanlal Jethalal. Plaintiff stated that the said property was purchased by him by registered sale deed dated 15th June, 1974. Since the defendant happened to be the daughter of the said predecessor-in-title Chandaben, and was staying in the ground floor portion of the property occupying two small rooms situated beyond the open space. It was claimed that the defendant was a licencee occupying the said portion on permissive basis. The plaintiff stated that he was to construct new house and therefore, the entire property was required to be demolished. It was averred that it was agreed between the plaintiff and the defendant that defendant would execute a licence agreement for a Page 2 of 7 C/SA/146/1995 JUDGMENT period of 10 months, however subsequently she had a change of mind and did not execute the agreement. It was stated that the defendant was not giving overall possession and therefore, the Suit for necessary relief was instituted.
2.1 Exhibit 9 was the written statement filed by the defendant to contest the Suit. She denied the averments in the plaint and claimed that original owner Chandaben had given possession of the premise to her as a tenant; that her husband had asked the plaintiff to execute rent agreement, but the writing which was prepared was one of leave and licence. She was pressurised to put her signature on that agreement which she did not. It was the case of the defendant, that she with her husband had been occupying and staying in the property in the capacity as tenant. It was contended that the Suit was not maintainable.
3. The Trial Court framed issues at Exhibit 10 and proceeded to decide the suit on the basis of evidence on record. It held that the defendant was licensee in the suit premises. It further held that defendant had failed to prove that her husband or she was tenant in the premises as contended in the written statement. Consequently it passed decree for handing over possession. The first appellate court in the appeal upturned the judgment and decree of the Trial Court.
4. Heard learned advocate Mr.I.S. Supaiha for the appellant and learned advocate Mr.Mehul Suresh Page 3 of 7 C/SA/146/1995 JUDGMENT Shah for the respondent. This Court also perused Record and Proceedings with the help of learned advocates. Record and Proceedings were called for as per order dated 22nd February, 2013 of this Court.
5. The main issue before the Courts below was that the defendant was occupying the suit property as licensee or that she was a tenant. In other words, what was to be examined was whether the relationship was landlord and tenant existed between the parties. In a particular case whether relationship of landlord and tenant was created or it was one of mere licence is one of intention of the parties. In Mrs.M.N. Clubwala Vs Fida Hussain Saheb and others [AIR 1965 SC 610], the Supreme Court observed that whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee, the decisive consideration is the intention of the parties. The intention has to be ascertained, it was held, from the total reading of the agreement. It was further observed that in absence of a formal agreement, the intention of the parties must be inferred from the circumstances and conduct of the parties. It is also trite principle in judging the nature of relationship that the exclusiveness of possession, though not sole, but is an important criteria. The length of the period for which the party remained in exclusive possession of the property is also a weighing consideration.
6. In the present case, no written agreement was executed between the parties. Therefore the Page 4 of 7 C/SA/146/1995 JUDGMENT question whether the relationship between the parties gave rise to jural relationship of landlord and tenant as to be ascertained from the intention of the parties to be gathered from surrounding circumstances and attendant aspects. Applying the principles noted above, the foremost amongst the evidence relied on by the first appellate court in holding that the defendant was a tenant and that it was a landlord- tenant relationship created, were the diaries (Exh.56, 63 to 65) produced by the defendant. They were written by defendant's father Chimanlal Vyas. Therein the details of payment of rent to the plaintiff was written and the amount was mentioned. It was the case of the defendant inter alia that she was occupying the property on payment of rent which was subsequently increased, derived fortification from the said documentary evidence-the diaries. In absence of any evidence suggesting to the contrary and any militating circumstance being absent, the first appellate court was right in relying on those evidence. The diaries in question reflected state of affairs of those early years and could be well said to be indicative of the intention of the parties.
7. If the long exclusive possession to be taken as a yardstick, the defendant was residing in the property since 1956 and continued to stay there for long years, the sale deed (Exh.36) by which the plaintiff purchased the property on 15.06.1974 as well as the agreement to sell (Exh.43) executed prior to the aforesaid sale deed contained a mentioning of fact of the disputed premises to be in possession of the Page 5 of 7 C/SA/146/1995 JUDGMENT defendant and that she was occupying the same. The long occupation of the defendant coming out of all the evidence above read together, was in itself a strong circumstance to suggest that relationship of tenant and landlord was created between the parties.
8. It was possible to countenance the submission of the learned advocate for the respondent that it was for the first time in the suit notice (Exh.32) that the plaintiff put-forth the case that defendant's occupation was in capacity of licensor and licence fee was fixed at Rs.30/- per month. Not only that this case of the plaintiff remained unsupported by any acceptable evidence, the Trial Court misdirected itself in relying on Municipality's Assessment List of the year 1974 (Exh.35) to arrive at a conclusion trying to read it with evidence of the plaintiff (Exh.27), which again remain no more than his oral say. The Municipal Assessment Register by itself in absence of any cogent corroboration, could not provide a valid conclusion on the relationship of parties, merely because it did not contain the name of the defendant as tenant, as the attendant circumstances and the surrounding factors emanating from evidence, discussed above, suggested that it was a relationship of landlord and tenant. The finding recorded by the Trial Court that the occupation of the defendant was permissive and she was a licensor was clearly unsustainable, in reversing of which the first appellate court was eminently justified.
9. The first appellate court is the last court Page 6 of 7 C/SA/146/1995 JUDGMENT on finding of fact. In reaching a conclusion that relationship of landlord and tenant existed between the parties, the findings arrived at by the first appellate court were proper, reasonable and were based on correct reading of evidence. They did not book any error of the kind of misreading of evidence or perversity so as to warrant interference therein by this Court while exercising jurisdiction under Section 100 of the Code of Civil Procedure, 1908.
10. In light of above, no question of law muchless any substantial question of law arises in this Appeal. Accordingly the Appeal is summarily dismissed.
(N.V.ANJARIA, J.) Anup Page 7 of 7