Gujarat High Court
Deceased Thakorebhai Morarbhai Mehta ... vs Ishwarlal Kantilal Chapadiya on 11 November, 2025
NEUTRAL CITATION
C/CRA/411/2018 ORDER DATED: 11/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 411 of 2018
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DECEASED THAKOREBHAI MORARBHAI MEHTA THRO. HEIRS & ORS.
Versus
ISHWARLAL KANTILAL CHAPADIYA & ORS.
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Appearance:
MS KJ BRAHMBHATT(202) for the Petitioners
MR ANSHUL N TRIVEDI(9827) for the Opponent(s) No. 15,16,17
MR VRAJ GANDHI for MR MASOOM K SHAH(6516) for the Opponent(s) No.
1,10,11,12,13,14,3,4,6,7,8,9
NOTICE SERVED BY DS for the Opponent(s) No. 2,5
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/11/2025
ORAL ORDER
1. By way of this petition under section 29(2) of the Bombay Rent Act, the petitioners prayed to quash and set aside judgment and order dated 31.8.2016 passed by the learned 9th (Ad hoc) Addl. Sessions Judge, Surat in Regular Civil Appeal No.42 of 2010 confirming the judgment and order dated 22.7.2010 passed by the learned Judge, Small Cause Court, Surat in Small Rent Suit No.205 of 1981.
2. Heard learned advocate Ms. Brahmbhatt for the petitioners and learned advocate Mr. Vraj Gandhi for learned advocate Mr. Masoom Shah for respondents except respondent Nos.2,5,15 to 17.
3. Though served, none appeared for respondent Page 1 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 23:42:02 IST 2025 NEUTRAL CITATION C/CRA/411/2018 ORDER DATED: 11/11/2025 undefined Nos.2,5,15 to 17.
4. This is a suit where the plaintiff tenant claimed that he has also right over the surrounding area situated next to the rented premises and the defendants landlords may not have any access to the said open land and that said land is a part of the plaintiffs' premises. Later on by amending the suit, the plaintiff tenant claimed that he has easementary right over the said open land piece of the land to access the public road, which is situated towards western side of the open land. The learned trial Court framed the issue at Exh.9, which reads as under:-
"1. Whether the plaintiff proves that he is a tenant of both the suit premises?
2. What compromises over the suit premises?
3. What order for injunction?
4. What order for decree?"
5. After permitting both the parties to lead evidence and after appreciating the same, the learned trial Court answered all both the issues in negative and dismissed the suit. The relevant findings of the learned trial Court is at para 6, which reads as under:-
"6. Now looking to the undisputed facts of the present case, the relationship tenant and landlord is not in dispute between the parties. It is not in dispute that the plaintiff is a tenant of the defendants and suit premises has been partition between the defendants. The defendants have submitted ample evidence to show that the plaintiff has acquired suitable accommodation. But to me at present suit these issues are not required to be discussed and can be Page 2 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 23:42:02 IST 2025 NEUTRAL CITATION C/CRA/411/2018 ORDER DATED: 11/11/2025 undefined only considered for the sake of conduct of the plaintiff. Only question is require to be considered is whether the open land has been rented to the plaintiff or not? Means whether the plaintiff has rented the suit premises as well as open land from the defendants or not?
6.1 Now let us see the evidence to that effect to prove his case the piaintiff has submitted rent receipts from Exh. 164 to 182 and at Exh. 170 is a map of suit premises comparison of open land and residential premises. The plaintiff has submitted his deposition at Exh. 140 wherein he has reiterated facts stated in the plaint and till today the possession of the suit premises as well as open land. During his cross- examination he has stated that it is true that there is no question of repairing as ground floor is not in possession of the plaintiff, he has stated that there is no rent note regarding open land and he has rented first floor, he has accepted that the suit premises is vacate since last 15 years at present he is staying Sneh Milan Garden.
6.2 Now based upon 8 other evidences, it appears that the plaintiff has pend only first floor of the suit premises he has stated that there is no rent note regarding open land. It is pertinent to note that during the cross-examination of defendants, defendant No. 2 has submitted true copy of rent note which is at Exh. 151 this document is exhibited with the consent of the parties wherein description of the suit premises is mentioned which only comparison of suit premises not the open land. It is categorically mentioned that Nondh No. 11/1702 if first floor of the property to be ranted. Looking to the photographs it appears that suit premises is in dilapidated \ conditions and not condition of stay, at Exh. 166 is a notice of atornment.
6.3 Now looking to the evidences, first of all, the plaintiff himself has Concealed the very material facts before the Court that there was a rent note and he has submitted only rent receipts wherein open land is Page 3 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 23:42:02 IST 2025 NEUTRAL CITATION C/CRA/411/2018 ORDER DATED: 11/11/2025 undefined also mentioned so far as these documents are concerned, all these rent receipts are signed by Jamnadash Hashmukh. According to defendants there is dispute between the parties and got up rent receipts are created by the plaintiff. The first rent receipt submitted at Exh. 171 is dated 20.9.1974 and the rent note has been executed on 12.5.1958 and in this rent note nowhere it is mentioned that open land is also rented to the plaintiff. This document is not disputed and rent is fixed at the rent of Rs. 26/- per month regarding rent property mentioned in the rent note. Therefore, merely on the basis of rent receipts it can not be said that open land was rented to the plaintiff and suit premises comparison only first floor of Nondh No. 11/1702. So far as other claim of the plaintiff as for the amendment application is concerned that if Court comes to the conclusion open land was not rented but they have right of easement at open land but to me very categorically this Court can not decide easementary right of the parties and only question regarding dispute related with rent has to be determined by this Court. According to me the plaintiff has miserably failed to prove that open land has been rented to them hence I answered Issue No. 1 & 2 in negative."
6. The learned appellate Court by well reasoned order, concurred with the findings and reasoning arrived at by the learned trial Court by framing point of determination.
7. What could be noticeable that there was no evidence on record which suggests that the open land aperture to the rented premises is also rented to the plaintiff tenant and in absence thereof, the learned trial Court has rightly dismissed the suit. Except rent receipt, no other document/evidence are produced on record. The rent note which was produced before the learned trial Court did not support the case of the Page 4 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 23:42:02 IST 2025 NEUTRAL CITATION C/CRA/411/2018 ORDER DATED: 11/11/2025 undefined plaintiff tenant against the landlord. In absence of any specific evidence suggesting that the plaintiff tenant has been rented vacant open land situated next to the rented premises, the relief claimed by the plaintiff tenant has rightly been rejected by the learned trial Court.
8. The second relief or alternative relief that right of easement over the open land in favour of the plaintiff tenant is also unacceptable on the settled principles of law.
9. In view of above, I find no error committed by the learned Courts below and thus, the petition being bereft of merits stands rejected. Notice discharged.
10. Registry is directed to return back the R & P, if any, to the concerned Court forthwith.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 5 of 5 Uploaded by SHEKHAR P. BARVE(HC00200) on Tue Nov 11 2025 Downloaded on : Tue Nov 11 23:42:02 IST 2025