Gujarat High Court
Jagjitsingh Bhagsingh Arora vs Vibhaben Rajpal Tyagi C/O Navalbhai ... on 31 January, 2022
Author: Vaibhavi D. Nanavati
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/FA/3579/2017 JUDGMENT DATED: 31/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3579 of 2017
With
R/FIRST APPEAL NO. 910 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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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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JAGJITSINGH BHAGSINGH ARORA
Versus
VIBHABEN RAJPAL TYAGI C/O NAVALBHAI ARORA & 1 other(s)
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Appearance:
MR AM DAGLI for the Appellant(s) No. 1
MRS SANGITA PAHWA for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 31/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. The First Appeal No.3579 of 2017 is filed at the instance of the appellant - original plaintiff of the Regular Civil Suit Page 1 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 No.217 of 2014 (Old H. R. P. Suit No.352 of 2017) and the First Appeal No.910 of 2017 is also filed at the instance of the appellant - original defendant No.1 of the Special Civil Suit No.807 of 2012.
Both the above captioned first appeals under Section 96 of the Code of Civil Procedure, 1908 are arising out of common judgment dated 31.1.2017 passed by the 4 th Additional Senior Civil Judge, Ahmedabad (Rural) in Regular Civil Suit No.217 of 2014 (Old H. R. P. Suit No.352 of 2017) and the Special Civil Suit No.807 of 2012 by which the learned Judge dismissed the Regular Civil Suit No.217 of 2014 (Old H. R. P. Suit No.352 of 2017) and partly allowed the Special Civil Suit No.807 of 2012. Being aggrieved and dissatisfied by the judgment dated 31.1.2017 the appellant has instituted the present first appeals.
Both the captioned first appeals are at the instance of the original tenant in view of the fact that the suit being Regular Civil Suit No.217 of 2014 filed by the tenant came to be dismissed and the suit being Special Civil Suit No.807 of 2012 filed by the landlady came to be allowed and, therefore, original tenant being aggrieved by the impugned judgment and decree has filed the present first appeals.
2. The facts giving rise to the present appeals may be summarized as under (as stated by the plaintiff) :-
Page 2 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 (A) Facts of the First Appeal No.3579 of 2017 - Regular Civil Suit No. 217/14 (Old HRP No. 352/07) First Appeal :-
2.1 The plaintiff initially filed a suit being HRP Suit No. 352/07 in the court of Small Causes Court, Ahmedabad. The plaint was returned back to the plaintiff under the provisions of Order 7 Rule 10 of the Civil Procedure Code, 1908. The plaintiff then filed plaint in the Court of Principal Senior Civil Judge, Ahmedabad [Rural] which was numbered as Regular Civil Suit No. 217/14. The brief facts leading to the filing of the Regular Civil Suit No. 217/14 are summarized thus :-
The property bearing bunglow No.12 situated in 'Pahelgaun Bunglows', Premdeep Co-operative Housing Society Ltd., Opp. Akash Tower, Judges Bunglow Road, Vastrapur, Ahmedabad is the suit premises herein. The suit property is of the ownership of defendant no.1. The defendant no.1 is residing out of India since last many years. The defendant no. 2 is the manager, rent collector and representative of suit premises. The suit premises was taken on rent by the plaintiff from the defendant No.1 on date 01/07/2001 on deposit of Rs.
50,000/- (of which receipt is not given) and Rs. 5000/- as monthly rent. The Panchayat tax and society maintenance of the suit premises was to be paid by the plaintiff. Further the suit premises are included within the limits of the Municipal Corporation, hence the Municipal tax is also to be paid by the Page 3 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 plaintiff. The lease is month to month and ends on the last date of each month.
2.2 The plaintiff has further averred in the plaint that the plaintiff and his family members are occupying the suit premises since the said premises was taken on rent. The plaintiff's two sisters are using the said premises in the name of 'Jadi-Butty Real Herbal' Beauty Parlour in the suit premises. Though the defendant no.2 has collected rent from the plaintiff on regular basis, the defendant no.2 has not given rent receipts from the very beginning. The plaintiff used to ask the defendant no. 2 to issue rent receipts, but the defendant no. 2 used to say that he did not wish to give the suit premises on rent if receipts are required. Since the plaintiff was in need of house, he used to make payments of rent without receipts. The plaintiff has paid regular rent upto dated 31/12/2006. But when the plaintiff went to pay the rent for the month of January 2007, the defendant no. 2 did not accept the same and asked to pay Rs. 10,000/- as rent or else evict the suit premises. The defendant no.2 threatened the plaintiff that the possession of the suit premises will be taken forcibly through high-headed persons. Hence the plaintiff has filed this suit praying for relief of declaring him as tenant of the suit premises and also praying for permanent injunction restraining the defendants from disturbing the possession of the plaintiff in the suit premises and also restraining the defendants from Page 4 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 evicting the plaintiff from the suit premises without following the due process of law.
2.3 The defendants in Regular Civil Suit No. 217/14 filed their written-statement vide Exh- 9 in which they have denied the averments made in the plaint and further stated that the plaintiff is not a tenant of the suit premises. The defendant no. 1 is the owner of the suit premises and mostly residing and residing at foreign (Kuwait) since many years. The plaintiff has taken advantage of non-occupation of the property and behind the back of the defendant no.1, trespassed the suit premises and started residing in the same. The Court below decided the application Exh-5 filed by the plaintiff on merits vide judgment dated 07/08/07 wherein the Court below came to the conclusion that the plaintiff failed to establish that he was a lawful tenant of the suit premises and thus dismissed the application below Exh- 5. The plaintiff challenged the said order passed below Ex.5 before the Appellate Bench of the Small Causes Court being AFO No. 82/07. The Appellate Bench of the Small Causes Court was also pleased to dismiss the appeal on date 28/02/12. Thereafter the plaintiff preferred S.C.A No.3915/12 before the this Court wherein the Court was pleased to uphold the order passed by the Courts below by order dated 02/07/12.
2.4 The defendants further stated in their written-statement Page 5 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 that the plaintiff has failed to establish that he was a tenant of the suit premises. The plaintiff's use, occupation and possession in the suit premises is unauthorized and illegal. It is not true that the plaintiff has paid Rs. 50,000/- by way of deposit. It is also not true that the rent of the suit premises is Rs. 5000/- per month. The plaintiff is a trespasser in the suit premises, hence the defendant no.1 filed a Special Civil Suit No. 807/12 for the recovery of possession and mesne profit. The defendants have submitted that in view of above the suit filed by the plaintiff being Regular Civil Suit No. 217/14 be dismissed and the Civil Suit No.807 of 2012 be allowed.
Cause of action :-
2.5 The cause of action of instituting the Regular Civil Suit No.217 of 2014 (Old H. R. P. Suit No.352 of 2017 - Suit filed by the tenant) is produced thus :-
"The cause of action has arisen in the jurisdiction of this Court in Ahmedabad City when - I, the plaintiff rented the premises in suit from the respondents. I have been paying the amount of rent to the respondent No.2 since I rented and started using the premises to date. The respondent No.2 never gave any receipt for the rent. The respondent No.2 has told me to pay Rs.10,000/- per month as a rent of the premises or vacate the premises and threatened to throw my goods outside and occupy the premises engaging hard headed persons if I, Page 6 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 the plaintiff do not vacate the premises."
(B) Facts of the First Appeal No.910 of 2017 - Special Civil Suit No. 807/12 :-
2.6 The landlady- Vibhaben Rajpal Tyagi is the plaintiff is Special Civil Suit No. 807/12. The facts leading to the filing of the suit are summarised thus :-
The plaintiff Vibhaben Rajpal Tyagi is the owner of the suit premises. The plaintiff is mostly residing and staying at foreign since last many years. The defendant trespass in the suit premises behind the back of the plaintiff. Thereafter some months the defendant Jagjitsingh Bhagsingh Arora filed a H.R.P. Suit No. 352/07 dated 13/02/07 in the Small Cause Court, Ahmedabad. In the said suit the defendant Jagjitsingh Bhagsingh Arora also filed an application for the grant of interim temporary injunction Exh-5. The Judge of the Small Cause Court has decided the application Exh-5 filed by the plaintiff on merits vide judgment dated 07/08/07 wherein the Hon'ble Judge came to the conclusion that the plaintiff has failed to establish that the he is a lawful tenant of the suit premises and thus dismissed the application Exh- 5. The plaintiff challenged the said order before the Appellate Bench of the Small Causes Court being AFO No. 82/07. The Appellate Bench of the Small Causes Court was also pleased to dismiss the appeal on date 28/02/12. Thereafter the plaintiff preferred Page 7 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 S.C.A No. 3915/12 before the High Court of Gujarat wherein the High Court was pleased to upheld the order passed by both the Courts below on date 02/07/12. As per the reasoning, finding and conclusion as recorded by the Courts below Ex.5, present defendant is not a tenant of the suit premises and relationship of landlady and tenant does not exist between the plaintiff and the defendant. The defendant's use, occupation and possession in the suit premises is completely and absolutely unauthorized, illegal and hence plaintiff is entitled to recover the possession of the suit premises. Hence the plaintiff filed Special Civil Suit No.807 of 2012 and prayed for directing the defendant to hand over the possession of the suit premises to the plaintiff. The plaintiff has also prayed for restraining the defendant from alienating the suit premises in favour of third person in any manner till the plaintiff hands over the possession to the defendant.
Cause of action :-
2.7 The cause of action of instituting the Special Civil Suit No.807 of 2012 (Suit filed by the landlady) is produced thus :-
"The cause of action has arisen to file the present suit for the recovery of the possession of the part of the above stated suit property as and when the defendant committed trespass in the part of the above said bungalow prior to the some months from the date of institution of the said H.R.P. Page 8 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 Suit No.352/2007 dt.13.02.2007 by the defendant and when the defendant fails to establish to be tenant of the said portion of the above stated property in H.R.P. Suit No.352/2007 vide judgment and order passed below application EXH.5, dt.07.08.2007 and when the same was affirmed by the Appellate Bench of the Small Cause Court, in Appeal From Order No.82/2007 dt.28.02.2012 and when the same were affirmed by the Hon'ble Gujarat High Court S.C.A. No.3915/2012 on dt.02.07.2012."
3. Both the suits i.e. Regular Civil Suit No.217 of 2014 and Special Civil Suit No.807 of 2012 came to be consolidated.
4. The following common issues came to be framed by the Court below in Regular Civil Suit No.217 of 2014 and Special Civil Suit No.807 of 2012 :-
(1) Whether plaintiff in Regular Civil Suit No. 217/14 proves that he is a tenant of suit premises and he has taken the suit premise on rent from date 01/07/2001 ?
(2) Whether plaintiff in Regular Civil Suit No. 217/14 proves that the defendant gave the suit premises to the plaintiff on rent on date 01/07/2001 on rent of Rs. 5000/- per month and received deposit of Rs. 50,000/-?
(3) Whether plaintiff in Regular Civil Suit No. 217/14 proves Page 9 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 that he is regularly paying rent amount to the defendant?
(4) Whether plaintiff in Regular Civil Suit No. 217/14 proves that the defendant is trying to illegally snatch away the possession of suit premises from the plaintiff?
(5) Whether plaintiff in Regular Civil Suit No. 217/14 proves that he is entitled to get the relief as prayed for?
(6) Whether plaintiff in Special Civil Suit No. 807/12 proves that the defendant is a trespasser in the suit premises?
(6A) Whether defendant in Special Civil Suit No. 807/12 proves that this court has no jurisdiction to try and decide the suit?
(7) Whether plaintiff in Special Civil Suit No. 807/12 proves that he is entitled to get the relief as prayed for?
(8) What order and Decree?
5. The issues Nos.1, 2 and 3 were answered by the trial Court in negative. The discussion with regard to the issues Nos.1 to 3 is produced thus :-
"18. As discussed above the plaintiff has not produced any evidence either oral or documentary to prove that the suit premises was given on rent to the plaintiff by defendant no. 2 on behalf of defendant no. 1 from date 01/07/01 for monthly rent of Rs. 5000/- and he has tendered Rs. 50,000/- to Page 10 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 defendant no. 2 as deposit. The plaintiff has not produced any evidence to prove that he has regularly paid monthly rent of Rs. 5000/- to defendant no. 2 till date 31/12/06. The plaintiff has not produced any evidence to prove that he is a tenant of suit premises. The plaintiff has not examined any independent witness who would give evidence of factum of oral lease. It cannot be believed that there would not be a single person who would have knowledge about the existence relationship of plaintiff and defendant as tenant and landlord within a span of seven years. The plaintiff has relied upon the conduct of the defendants to prove his case. But even the conduct of the plaintiff is such that no prudent man would believe. It is the say of the plaintiff that he was in need of residence and he could not find any other premises, hence he agreed to take the suit premises on rent without rent receipts. But whether it can be believed that for seven years the plaintiff could not find any other suitable premises whose owner would give rent receipts. A prudent man would certainly find another premises whose owner would agree to give rent receipts. If the defendant no. 2 was not giving rent receipts, the plaintiff could have found another premises. There was enough time for the plaintiff to find another premises. The plaintiff has only relied upon the circumstances proving the conduct of the defendants. But when there is no direct evidence nor any corroborative piece of evidence produced by the plaintiff, the conduct of the defendants cannot be relied upon to decide factum of tenancy. When the case is dependent upon circumstantial evidence, all the circumstances must meet each other and it must form the Page 11 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 whole chain. Different sets of circumstances without forming the whole chain, cannot be relied upon to prove a fact. In present case, there is no direct evidence produced by the plaintiff. The plaintiff has not even produced any corroborative piece of evidence to prove his case. The plaintiff has relied upon various circumstances forming conduct of the defendants. But as discussed above, even assuming the conduct of the defendants to be non believable, at no stretch of imagination it can be inferred that the plaintiff is a tenant of the suit premises. From the documentary evidence produced by the plaintiff, it can at the most be believed that the plaintiff is in possession of the suit premises since year 2001. Furthermore, from the oral evidence of the defendants, even assuming that defendant no. 2 was in the knowledge about the occupancy of the plaintiff in the suit premises, at the most it can be inferred that the plaintiff was a permissive user. Furthermore, there is no evidence or even any circumstance which would lead the court to believe that defendant no.1 who is the owner of the suit premises was in the knowledge of occupancy of the plaintiff in the suit premises. The plaintiff has failed to prove the fact of implied agency between defendant no.1 and defendant no. 2. Thus it cannot be inferred that the plaintiff is a tenant of the suit premises.
19. The learned advocate for the defendant has argued that the plaintiff must succeed on his own and he cannot rely on the weakness of the defendant. To substantiate his say the learned advocate for the defendant has relied on the judgments Page 12 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 of (1) State of W.B. Vs. Subimal Kumar Mondal and another, AIR 1982 Calcutta 251, (2) Jugnabi S.K. Chand Vs. Jamilakhanum Abdul Rasaque Ansari, 2016 (1) Mh.L.J 800, (3) Punjab Urban Planning and Development Authority Vs. Shiv Saraswati iron and Steel Re Rolling Mills, 1998(0) GLHEL-SC 21776 and (4) Sri Chand Vs. Inder, 1992(0) GLHEL-SC 4736. The learned advocate for the plaintiff has argued that all these judgments only lay a principle. In present case the plaintiff has not relied on any weakness of the defendant but relied on oral evidence.
(19.1) I have considered the rival arguments. I have read the judgments (supra). In all the above judgments it has been observed that the plaintiff must succeed by establishing his own case and he cannot rely on the weakness of defendant's case to strengthen his case. The principle laid down by the Higher Courts in the said judgments has to be considered. In present case the plaintiff has relied on the conduct of the defendant's to prove his case. The plaintiff has not produced any direct or corroborative piece of evidence to prove his case. The circumstances on which the plaintiff relies are not such that leads the Court to believe that the suit premises were let on rent to the plaintiff by the defendant. Thus the argument on behalf of the plaintiff is not acceptable and the judgments relied on by the defendant are helpful to the defendant.
20.As discussed above the plaintiff has failed to prove that he is a tenant of suit premises and he has taken the suit premise on rent from date 01/07/01 on rent of Rs. 5000/- per month and Page 13 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 the defendant received deposit of Rs. 50,000/-. Hence issues no. 1, 2 and 3 are answered in negative."
6. The issue No.4 came to be answered in negative. The said issue as discussed by the trial Court is produced thus :-
"(21.1) The plaintiff has pleaded that when he went to give rent amount for the month of January 2007 to defendant no. 2, the defendant no. 2 demanded Rs.10,000/- as rent and threatened the plaintiff that he would cause to illegally evict the plaintiff from suit premises and also cause to throw all his belongings out of the suit premises by highheaded persons. The plaintiff has stated the same averments in his affidavit of examination-in-chief. But the plaintiff has in his crossexamination stated that after such incidence he has not filed any criminal complaint against defendant no. 2. The plaintiff has also stated that after Navalbhai demanded more amount of rent, he did not contact Vibhaben on telephone or by sending letter. Thus it transpires that the incident as stated by the plaintiff is not proved. The plaintiff has not filed any criminal complaint. The plaintiff has not even tried to contact the owner of the suit premises. Furthermore, the plaintiff has failed to prove any incident thereafter in which the defendant no. 2 would have acted on his threats. The plaintiff has not produced any evidence to prove that defendant no. 2 had sent highheaded persons to throw out the belongings of the plaintiff from the suit premises. Hence it cannot be said that the defendant is trying to illegally snatch away the possession of Page 14 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 the plaintiff from the suit premises. Hence the plaintiff has failed to prove that defendant is trying to illegally snatch away the possession of the suit premises from the plaintiff. Hence issue no. 4 is answered in negative."
7. Issue No.6 came to be answered in affirmative. The said issue as discussed by the trial Court is produced thus :-
"The defendants have stated that when the summons of H.R.P.Suit No. 352/07 was received by defendant no. 2, the defendants came to know that the plaintiff has committed trespass. Simply because the defendants have not stated the exact date of trespass does not lead the court to believe that the factum of trespass is also not proved. Hence the arguments on behalf of the plaintiff is not acceptable. The plaintiff has pleaded that he has paid rent till date 31/12/06. Though the plaintiff has failed to prove such fact, but assuming it to be so, then the plaintiff has not paid any amount after 31/12/06 till date. The defendant no. 1 is the owner of the suit premises. The plaintiff has not established that he is a tenant and that he is entitled to be protected under the Rent Act. Hence the plaintiff can be said to be a trespasser in the suit premises. Hence issue no. 6 is answered in affirmative."
8. Issue No.6(A) came to be answered in negative. The said issue as discussed by the trial Court is produced thus :-
"(23.1) The plaintiff has taken a defence that this court has no jurisdiction to try and decide the Special Civil Suit No. 807/12.Page 15 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022
C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 The learned advocate for the plaintiff has argued that the dispute between the parties is relating to relationship of landlord and tenant. Therefore only Rent Court would have jurisdiction. In reply the learned advocate for the defendant has argued that on looking to the pleadings as stated in the plaint of Special Civil Suit No. 807/12, only civil court has jurisdiction.
(23.2) On perusing the averments made in Special Civil Suit No. 807/12 and the relief claimed in it, it has been averred that the defendant in that suit has made trespass in the suit premises. It has been prayed to recover the possession of the suit premises from a trespasser. Thus looking to the relief claimed and the averments made in the plaint, the jurisdiction of this court is not barred by the provisions of Rent Act. The learned advocate for the plaintiff has relied on the judgment of Bombay Grain Dealers Association and others Vs. Lakhmichand Vasanji and Co., AIR 1969 Bombay 342. But the said judgment is not helpful to the plaintiff because in present case the plaintiff has failed to prove that a relationship of tenant and landlord exists between the plaintiff and the defendant. Thus the plaintiff has not proved that this Court has no jurisdiction to try Special Civil Suit No. 807/12. Hence issue no. 6A is answered in negative."
9. Issues Nos.5 and 7 came to be answered in negative. The said issues as discussed by the trial Court are produced thus :-
Page 16 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 "(24.3) The defendants i.e. the plaintiff in Special Civil Suit No. 807/12 has prayed for relief of directing the defendant i.e. the plaintiff in Regular Civil Suit No. 217/14 to hand over the possession of the suit premises. The defendant has also prayed for restraining the plaintiff from alienating the suit premises in favour of third person till he hands over the possession to the defendant. The defendant has also prayed for restraining the plaintiff from inducing anybody or third person in the suit premises till he hands over the possession to the defendant. The defendant has proved that the plaintiff is a trespasser in the suit premises. Hence the defendant is entitled to get the possession of the suit premises from the plaintiff. Hence the plaintiff i.e. the defendant of Special Civil Suit No. 807/12 can be directed to hand over the possession of the suit premises to the plaintiff of Special Civil Suit No. 807/12. The other reliefs are not pressed by the learned advocate for the defendant. Even the defendants have not pleaded nor proved that the plaintiff is trying to alienate the suit premises or trying to induce third person in the suit premises. Hence the said reliefs are not pressed.
(24.4) The learned advocate for the plaintiff had argued on the point of limitation but later on the learned advocate has stated at the bar that he does not press his argument on the point of limitation and not disputing about limitation of Special Civil Suit No. 807/12.
(24.5) As discussed the plaintiff in Regular Civil Suit No. Page 17 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 217/14 has failed to prove that he is entitled to get the relief as prayed for. Hence issue no. 5 is answered in negative. The plaintiff in Special Civil Suit No. 807/12 has proved that she is entitled to recover the possession of the suit premises. Hence issue no. 7 is answered partly in affirmative."
Submissions on behalf of the appellant - tenant (Regular Civil Suit No. 217/14 ) in First Appeal Nos.3579 and 910 of 2017 :-
10. Mr. Ashish Dagli, the learned advocate appearing for the appellant - tenant submitted that courts below has committed a serious error of law in allowing suit as prayed for as the very cause of action of suit is not sustainable.
10.1 He submitted that it is not in dispute that original defendant No.2 who acted on behalf of the defendant No.1 as a Manager and Rent Collector of the suit premises and on behalf of ori.owner accepted the rent for a considerable long period also. It is further submitted that entire suit is based on vague and absurd averments about trespass having been made by the applicant as it is not in dispute that the appellant is in possession for a considerable long period and it was lawful possession accepted in favour of the applicant.
10.2 He submitted that the court below has committed serious error of law as the base for filing of suit with regard to the Page 18 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 observations made by court below while deciding exhi.5 application cannot be termed as a legal or admissible evidence.
10.3 He submitted that the court below has committed a serious error of law there is no dispute about knowledge of the respondent that the appellant is in possession way back since 2001.Under the circumstances from no stretch of imagination the appellant would be termed as a trespasser. It is further submitted that the court below committed serious error of law in appreciating decisions cited before him in its true perspective manner in the facts and circumstances of the present case.
10.4 He submitted that the court below has committed a serious error of law in determination of the issue framed for consideration at exhi.44 more particularly the court below committed further error of law by framing joint issues of both the suits Reg. Civil Suit No. 217 of 201t and suit No.807 of 2012. It is further submitted that the court below has committed serious error of law of not framing proper issues for consideration including point of jurisdiction as to whether the court below had jurisdiction to entertain dispute which is essentially and purely between landlady and tenant in view of the provisions of Rent Control Act, the court below has no jurisdiction to entertain the case at all.
Page 19 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 10.5 He submitted that the court below has committed error of law in deciding issue No.6 and to hold appellant as a trespasser. He submitted that the court below has committed serious error of law that having regard to established fact, the relations between the parties and also documentary evidence on record suggest not only knowledge but absolute knowledge about the appellant who was holding the possession of the property since 2001 and the same was accepted and considered the appellant as a tenant . It is only on the dispute of increase of rent amount the dispute arose and under the circumstances the court below has committed serious error of law in deciding issue No.1, 2 & 3 respectively. It is submitted that the court below has committed a serious error of law by holding that there could not be any oral tenancy; however under the contract Act so also under sec. 107 of Transfer of Property Act there could be oral relations of including oral tenancy between the parties.
10.6 He submitted that the court below has committed error of law in appreciating evidence adduced before the court and also committed serious error of law in appreciating the documentary evidence placed on record. He submitted that the court below has committed error of law that in evidence of the plaintiff it comes on record that Navalbhai Arora, relative of Vibhaben and also person who resides besides the suit premises. It is submitted that it comes on record that it was Page 20 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 within knowledge of both about the possession of the applicant and it is also admitted that at no point of time any notice was given for vacating the premises or for delay in payment of rent.
10.7 He submitted that the court below has committed serious error of law in appreciating evidence adduced before court of witnesses of the appellant.
Submissions on behalf of the respondent - landlady :-
11. Mrs. Sangita Pahwa, the learned counsel appearing for the respondent (original plaintiff) submitted that the trial Court has rightly dismissed the Special Civil Suit No.807 of 2012 filed by the appellant on the ground that the appellant-plaintiff failed to prove that the appellant is a tenant in the suit premises. She submitted that while deciding issue no.1, 2 and 3 with regard to the Special Civil Suit No. 807 of 2012, the Trial Court has rightly held in Para 18 which is produced thus:-
"18. As discussed above, the plaintiff has not produced any evidence either oral or documentary ... ...the plaintiff has not examined any independent witness who would give evidence of factum of oral lease."Page 21 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022
C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 She submitted that in view of above, it is clear that there was no lease deed and no rent receipt produced by the appellant - original defendant.
11.1 She submitted that the plaintiff has not even stated in his affidavit of examination-in-chief that when and where he used to tender rent amount to defendant no.2. She submitted that there is no iota of evidence produced by the respondent (original plaintiff) to prove factum of payment of rent as stated in the plaint of the suit filed by the respondent (original plaintiff) If the plaintiff had paid regularly the amount of rent since 2001 7 years, then he would have certainly preserved some evidence to prove such payment. However, the plaintiffs have failed to do so and, therefore, the appeal filed by the plaintiff is required to be dismissed in limine.
11.2 She submitted that the plaintiff has admitted in his cross- examination that he is not having any writing or his own handwriting regarding payment of monthly rent or payment of deposit of Rs. 50,000/-. Thus, the plaintiff has not proved the oral lease or payment of rent by cash and, therefore, the Trial Court rightly held that the plaintiff failed to prove his tenant right.
11.3 She submitted that there is not a single document which can prove that the plaintiff is a tenant. The Trial Court has rightly held in Para 11.5 that the plaintiff could not prove that Page 22 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 the defendant no.2 was agent and rent collector of defendant no.1. She submitted that it is the case of the plaintiff that the defendant no.1 is the owner of the suit premises and defendant no.2 is the manager, rent collector and representative of rent premises. She submitted that the Trial Court has after considering oral and documentary evidence rightly concluded that the plaintiff has failed to prove that the defendant no.2 was the agent and rent collector of defendant no.1. Thus, when the agency of the defendant no. 2 is not established and when there is no averment against the defendant no.1, it was rightly held that the plaintiff failed to prove that the plaintiff was a tenant of the suit premises. She submitted that the Trial Court has rightly held that the conduct of defendant no.1 and 2 do not prove that the plaintiff was a tenant. The trial court has held that assuming that the defendant no. 2 was in the knowledge of the occupancy of the plaintiff at the most it could be inferred that the plaintiff was a permissive user.
11.4 She submitted that the Trial Court has given a finding that the plaintiff has not proved his tenancy. The plaintiff cannot rely upon the conduct of the defendant to prove his case. She submitted that the Trial Court has rightly held in Para 19 and 19.1 that:
(a) The plaintiff must succeed on his own and he cannot rely on the weakness of the defendant.Page 23 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022
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(b) In the present case, the plaintiff has relied on the conduct of the defendants to prove his case.
(c) The plaintiff has not produced any direct or corroborative piece of evidence to prove his case.
(d) The circumstances on which the plaintiff relies are not such that leads the court to believe that the suit premises were let on rent to the plaintiff by the defendants.
In support of her submissions she relied on the following decisions :-
(1) (1992)0 AIJEL SC 4736 = 1993 (Suppl.2) 560 (2) (1998)0 GLHEL SC 21776= 1998 (4) SCC 539 11.5 She submitted that the trial court dismissed the suit filed by the respondent/plaintiff being special civil suit no. 807 of 2012 by holding that the appellant has failed to prove that he is the tenant of the suit premises and relation of landlady and tenant exist between the defendant and the plaintiff and hence, the appellant is a trespasser. She relied on the meaning of "trespasser" as described in different dictionaries as under:-
(i) Blacks' Law Dictionary :-
One who has committed trespass; one who unlawfully enters or in- trudes upon another's land, or unlawfully and forcibly takes another's personal property.
(ii) Legal Definition :-Page 24 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022
C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 One who, without permission of the owner or privileges, enters onto another's property intentionally. Under tort law, such a person is owed no consideration by the landowner for any ills that may befall him or her.
11.6 The submission of the appellant that the suit filed by the respondent for recovery of possession is required to be dismissed because of insufficient pleading is without any legal basis. It is submitted that the respondent has filed suit for recovery of possession wherein, it is specifically stated that
(a) The present respondent- original plaintiff is the owner of the suit property ;
(b) The present appellant-original defendant has behind the back of the plaintiff committed trespass.
(c) The say of the defendant that he is the tenant is without any basis and therefore, the use, occupation and possession of the property by the defendant was completely and absolutely unauthorized.
(d) The plaintiff is entitled to recover the possession of the suit premises on the ground of ownership and title of the property.
The respondent therefore submits that the respondent has made proper pleading necessary for recovery of possession.
11.7 She relied on various judgments of the Hon'ble Supreme Page 25 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 Court wherein it is held that in absence of valid lease or licence agreement and in absence of rent receipt, the tenancy cannot be established which are produced thus :-
(i) 2008 (0) AIJEL-SC 41482 (Para 11)
= 2008 (12) SCC 634
(ii) 2008 (0) AIJEL-SC 40510 (Para 12 and 13)
= 2008 (12) SCC 624
(iii) 2012 (5) SCC 370 [Para 97(iv)]
(iv) 2017 (1) JT 180 [Para 13(iv)]
Civil Appeal No. 150 of 2017
11.8 Lastly she submitted that in the light of above
submissions and in light of the fact that the Defendant no.1 is the owner of the property and is a senior citizen and defendant No.1 has no other property for residing and defendant no.1 therefore wants to use the property which is bought from hard earned money, the respondent-defendant prays that both the appeals filed by the appellant challenging the decree/judgment passed by the Courts below in Regular Civil Suit No.217 of 2014 and Special Civil Suit No.807 of 2012 be dismissed.
Position of law :-
12. The Hon'ble Supreme Court in the case of Tikka Ram and Ors. vs. Kartara (Deceased) through Lrs. and Ors., reported in (2008) 12 SCC 634 in para-11 held as under :-
Page 26 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 "11) As rightly pointed out by learned counsel for the respondents though the appellants claimed that they were in possession of the suit lands nearly for a period of 12-15 years prior to the filing of the suit as tenants admittedly there is no evidence of execution of lease deed or payment of rent at any point of time. In the absence of execution of a proper pattanama (lease deed) and payment of rent their claim that they are the tenants of the suit land cannot be accepted. It is useful to refer to the recent decision of this Court reported in Jagadeesh & Anr. vs. State of Karnataka & Ors., JT 2008 (2) SC 308 while considering similar claim as to the tenancy, this Court held:
"11. We have already noted the findings made by the High Court in the impugned judgment on the question whether the appellants could be held to be the tenants on the evidence and materials on record. While doing so, in our view, the High Court was justified in coming to the conclusion that the evidence and material on record would clearly establish that the appellants were not able to prove that they were the tenants in respect of the scheduled land under the respondents. One of the main criteria for deciding whether a particular person is a tenant or not is to see whether there was payment of rent, either in cash or in kind. In this case, while rejecting the claim of the appellants, the High Court had considered that the appellants had failed to satisfy the court that any payment of rent was made either by the father of the appellants or by the appellants themselves."Page 27 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022
C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 While agreeing with the said view, we reiterate that payment of rent or lease amount either in cash or in kind is one of the relevant criteria for deciding whether a person is a tenant or not. (Emphasis supplied) Neither lease deed nor payment of rent was substantiated in these cases. In the absence of any such material and really if they were tenants for 12-15 years prior to filing of suit they would have taken steps much earlier and got Khasra Girdhawaris changed."
12.1 The Hon'ble Supreme Court in the case of Jagadeesh and Ors. vs. State of Karnataka and Ors., reported in (2008) 12 SCC 624 in para-11, 12 and 3 held as under :-
"11. We have already noted the findings made by the High Court in the impugned judgment on the question whether the appellants could be held to be the tenants on the evidence and materials on record. While doing so, in our view, the High Court was justified in coming to the conclusion that the evidence and material on record would clearly establish that the appellants were not able to prove that they were the tenants in respect of the scheduled land under the respondents. One of the main criteria for deciding whether a particular person is a tenant or not is to see whether there was payment of rent, either in cash or in kind. In this case, while rejecting the claim of the appellants, the High Court had considered that the appellants had failed to satisfy the court that any payment of rent was made either by the father of the appellants or by the appellants themselves.Page 28 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022
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12. The tribunals below, while accepting the case of the appellants, had relied on the entries made in the RTC record in respect of certain period. While considering such entries, the High Court had rightly held that from the entries in the RTC record for the years 1968 to 1974, the name of the appellants was not shown as the person in cultivation of the land in dispute and also the nature of cultivation of the scheduled land was not shown as that of the tenants in the said RTC record. That being the position, the High Court had come to a proper conclusion that the entries in the RTC extracts produced by the appellants could not support the contention that they were cultivating the land in dispute as the tenants. In our view also, the High Court was fully justified in drawing an adverse inference against the appellants for not producing any Geni receipts or any lease agreement to show that the 5th respondent before the High Court (respondent No. 3 herein) had, in fact, leased out the scheduled land in favour of the appellants or their father, since deceased, on crop share basis and that the appellants had paid the Geni to the 5th respondent. Such being the findings arrived at by the High Court with which we are in concurrence, it is difficult to hold that the tenancy claimed by the appellants in respect of the scheduled land could be established.
13. Considering the above aspect of the matter and after considering the scope of Section 121A of the Act, we are, therefore, unable to agree with the learned counsel for the appellants that in the exercise of revisional jurisdiction under Section 121A of the Act, the High Court was not entitled to Page 29 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 set aside the concurrent findings of fact arrived at by the appellate authority and the land tribunal. Such being the position, we do not find any reason to interfere with the judgment of the High Court, although the High Court, in the exercise of its power under Section 121A of the Act, had set aside the concurrent orders of the appellate authority as well as the land tribunal."
12.2 The Hon'ble Supreme Court in the case of Maria Margarida Sequeria Fernandes and Ors. vs. Erasmo Jack de Sequeria (Dead) through L. Rs. reported in (2012) 5 SCC 370 in para-101 held as under :-
"101. 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.Page 30 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022
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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."
13. Heard Mr. Ashish Dagli, the learned advocate appearing for the appellant - tenant (Regular Civil Suit No.217 of 2014) in First Appeal Nos.3579 and 910 of 2017 and Mrs. Sangita Pahwa, the learned counsel appearing for the respondent - landlady (Special Civil Suit No.807 of 2012).
Analysis :-
14. Having gone through the records and proceedings and the facts of the present first appeals following facts as stated below emerge for our consideration :-
(a) The appellant - tenant failed to produce any evidence either oral or documentary to prove that the suit premises was given on rent by the defendant No.2 on behalf of the defendant No.1 from 1.7.2001 for a monthly rent of Rs.5,000/-
and there is no proof that the plaintiff has tendered Rs.50,000/- to the defendant No.2 as deposit.
(b) No evidence is produced by the appellant to prove that Page 31 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 he has been paying monthly rent regularly at the tune of Rs.5,000/- to the defendant No.2 till dated 31.12.2006.
(c) The appellant has not examined any independent witness who would give evidence that there was oral lease between the plaintiff and the respondent.
(d) There is no direct evidence or any corroborative piece of evidence produced by the appellant to demonstrate that the plaintiff was tenant in the suit premises.
(e) It was well within the right of the respondent (original owner) seeking direction against the appellant herein to hand over the possession of the suit premises.
(f) The premises in question is required by the landlady and the trial Court after appreciation of the evidence held that the premises in question was required by the landlady for her occupation and residential purpose. In our view no error committed by the Court below in allowing the Special Civil Suit No.807 of 2012 filed by the landlady.
In view of the above facts and the ratio as laid down by the Apex Court, in our view the appellant herein cannot be said to be a tenant of the suit premises and the relationship of landlady and tenant do not exist between the appellant and the respondent. The appellant has failed to prove that there is Page 32 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022 C/FA/3579/2017 JUDGMENT DATED: 31/01/2022 relationship of landlord and tenant between the respondent No.2 and the appellant has not produced rent agreement and rent receipt to substantiate that appellant is the tenant of the suit property and consequently the appellant is not entitled to protection under the Rent Control Act. Undisputedly the respondent is the owner of the suit premises and it is well within the right of the owner of the property to seek possession of the suit premises. In our view, the use, occupation and possession of the suit premises can be said to be unauthorised, illegal and hence the respondent herein is entitled to recovery the possession of the suit premises. It cannot be said that the Courts below have committed any error in rejecting the Regular Civil Suit No. 217 of 14 filed by the appellant and allowing the Special Civil Suit No.807 of 2012 of the respondent (original owner).
14.1 In such circumstances, the First Appeal No.3579 of 2017 filed at the instance of the appellant - original plaintiff of the Regular Civil Suit No.217 of 2014 fails and the First Appeal No.910 of 2017 filed at the instance of the appellant - original defendant No.1 of the Special Civil Suit No.807 of 2012 also fails. The First Appeal No.3579 of 2017 and First Appeal No.910 of 2017 are accordingly dismissed.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 33 of 33 Downloaded on : Tue Feb 01 20:52:18 IST 2022