Saiyed Vajirbegam Abbashusain Through ... vs Safatali Gulamali Saiyed

Gujarat High Court

Saiyed Vajirbegam Abbashusain Through ... vs Safatali Gulamali Saiyed on 11 February, 2025

                                                                                                       NEUTRAL CITATION




                              C/CRA/493/2024                            ORDER DATED: 11/02/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                      R/CIVIL REVISION APPLICATION NO. 493 of 2024
                       ================================================================
                        SAIYED VAJIRBEGAM ABBASHUSAIN THROUGH LEGAL HEIRS & ORS.
                                                   Versus
                                      SAFATALI GULAMALI SAIYED & ORS.
                       ================================================================
                       Appearance:
                       MR MEET G RAVAL(10630) for the Applicant(s) No. 1,1.1,1.2
                       MR. ABIDALI MOMIN(14012) for the Opponent(s) No.
                       1,2,3.1,3.2,3.3,3.4,3.5,4,5
                       MS RAKSHA S KHATED(12987) for the Opponent(s) No.
                       1,2,3.1,3.2,3.3,3.4,3.5,4,5
                       ================================================================
                         CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
                                          Date : 11/02/2025
                                           ORAL ORDER

1. The present Revision Application arises from the judgment and decree dated 29.07.2024 passed by the appellate bench No.2, Small Causes Court, Ahmedabad in Regular Civil Appeal No.13 of 2007 and common judgment and decree dated 20.12.2006 passed by the Small Causes Court No.8 at Ahmedabad in HRP Suit No.1200 of 2001 and PSRP No.11 of 2002. The parties are referred to plaintiff and defendant herein.

2. Brief facts arising of the present Civil Revision Application are that the plaintiff of HRP Suit No.1200 of 2001 had filed a suit for permanent injunction restraining the defendant from removing the plaintiff from the suit premises.

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3. The Plaintiff's case in HRP Suit No.1200 of 2001 was that the defendants are the joint owner of the suit property and that the plaintiff has taken the suit property on a monthly rent of Rs.15/- and has put wooden cabin and one table on the open land and that the plaintiff is in possession of this cabin for more than 20 years and that the plaintiff is the owner of the cabin and doing business of flowers, coconuts flower's chadder etc. The defendant has resisted the suit of the plaintiff stating that, there is no relationship with the plaintiff, as landlord and tenant and that the Court does not have jurisdiction to try the suit. It was also contended that the mother and sister of the defendant are also the owner of the suit premises and are not joined as party in the suit, and therefore, the suit as filed by the plaintiff is barred for non joinder and mis- joinder for parties.

4. The defendant had also filed PSRP No.1 of 2002, under Section 41 of Bombay Rent Act before the Small Causes Court, Ahmedabad and the Court had dismissed the said PSRP No.1 of 2002 and as the present Civil Revision Application is filed challenging the order of HRP Suit No.1200 of 2001, the said fact about PSRP are not narrated hereinunder.

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5. After framing of issues and after leading evidence, the trial Court had dismissed HRP Suit No.1200 of 2001 and PSRP No.1 of 2002. The fact remains that the plaintiff in cross-examination had stated that the property was given to her by Sakinabibi for use of selling of flowers, it has also been admitted by the plaintiff in the said suit that no amount has ever been received by Sakinabibi for the premises from the plaintiff as rent, it has also been admitted that no rent receipts has been issued by the defendant. Moreover, it is also an admitted position that the plaintiff has also not deposited any amount of rent before the Court.

6. Learned advocate for the plaintiff has stated that the trial Court and the First Appellate Court has erred in not appreciating the fact that the plaintiff is in the possession of the premises since more than 20 years and the rent note which is produced at Exhibit-50, was also not considered by the Court. It has also been argued by the learned advocate for the plaintiff that the oral evidence of the plaintiff's witness vide Exhibit-56 is also not considered by the Court. The order passed in Regular Civil Appeal No.13 of 2007 by the appellate bench No.2 of Small Causes Court at Ahmedabad dated 29.07.2024 is Page 3 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:33 IST 2025 NEUTRAL CITATION C/CRA/493/2024 ORDER DATED: 11/02/2025 undefined required to be quashed and set aside.

7. Per contra, learned advocate Ms. Raksha S. Khated for the defendnat has stated that the plaintiff has miserably failed to prove that he is a tenant of the premises. There are no documentary evidence to consider that the plaintiff was ever a tenant in the premises the fact that the plaintiff has also not produced any document to show that he has ever paid rent to the defendants and the diary of which the plaintiff relies is not ever signed by the defendants.

8. Moreover, it has also been argued by the learned advocate for the defendant that if the oral evidence of the plaintiff's witness vide Exhibit-56, is read, the same also does not prove the fact about the diary produced by the plaintiff at Exhibit-56. The said witness also does not state about tenancy right of the plaintiff in the premises, and therefore, it has been argued that the judgment and decree passed by the Court is after careful consideration of oral as well as documentary evidence.

9. Having heard learned advocates for the parties and after going through the judgment and decree passed in in Page 4 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:33 IST 2025 NEUTRAL CITATION C/CRA/493/2024 ORDER DATED: 11/02/2025 undefined Regular Civil Appeal No.13 of 2007, the fact remains that the plaintiff has not produced any documentary evidence to show that he was a tenant in the premises. The provisions of Bombay Rent Act are for adjudication of dispute between the landlord and tenant, and therefore, unless and until it is proved that there is a relationship of landlord and tenant between the parties, the jurisdiction of the Small Causes Court will not arise. The fact remains that the plaintiff in the suit is seeking an injunction restraining the defendant from dispossing the plaintiff from the suit premises without following due process of law, but the fact remains the said claim of the plaintiff is based on the basis that plaintiff is a tenant of the premises and the defendants are the landlord of the premises. Neither any document to show that there existed any relationship between landlord and tenant between the parties has been produced and proved by the plaintiff in the suit. The fact remains that the plaintiff has miserably failed to prove that any rent has ever been paid by the plaintiff to the defendant and there are no documents of any rent note, any rent receipt and the plaintiff has also not deposited any rent in the Court, and therefore, the first appellate Court has rightly held that without any kind of evidence Page 5 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:33 IST 2025 NEUTRAL CITATION C/CRA/493/2024 ORDER DATED: 11/02/2025 undefined in regard to relationship of tenancy the plaintiff suit is not maintainable. The plaintiff is claiming that he is in the possession of the premises since last 20 years and for the said fact appellate Court has relied on the judgment passed in the case of Maria Margarida Sequeria Fernandes and Others v. Erasmo Jack de Sequeria (Dead) in Appeal No.2968 of 2012 (Arising out of SLP (C) No.15382 of 2009) decided on 21.03.2012, the Hon'ble Apex Court has observed 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.

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."

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10. In the present case when it has been proved that the possession of the appellant was not legal and when there are concurrent findings to that effect that the plaintiff does not have any right to possess the property and that there is no relationship of landlord and tenant, and therefore, the question of setting aside the same does not arise.

11. Considering the submissions made and after examining the findings of the both the Courts below on the issue raised in the suit and upon examination of the judgment and orders of both the Courts below, this Court is of the considered opinion that the learned advocate for the plaintiff is unable to point out any infirmity, perversity or inproprietary in the findings recorded by the Courts below. Not only that the learned advocate for the plaintiff is unable to show that the findings recorded by the learned Trial Courts is without any reasons and against the provisions of law.

12. Moreover, the first appellate Court has given a finding of fact and the said facts are not otherwise found to be perverse, therefore, in the present Civil Revision Application there is not illegality in the order that has been passed the first appellate Court has reappreciated the Page 7 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:33 IST 2025 NEUTRAL CITATION C/CRA/493/2024 ORDER DATED: 11/02/2025 undefined evidence and come to a conclusion which the appellate Court has arrived based on evidence and the said finding has been arrived at by looking at the material evidence. The said finding of the appellate Court is justified by the reasonings and the evidence placed before the first appellate Court, therefore, in the Revision Application, the Court cannot interfere with the finding of fact recorded by the first appellate Court and the revisional jurisdiction is continued the findings of fact recorded by the Court below, and therefore, the findings of fact recorded by the first appellate Court is according to law and does not suffer from any error of law. The judgment and decree is legal and proper.

13. In view of the said fact, the present Civil Revision Application is dismissed.

(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 8 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:33 IST 2025