Gujarat High Court
Ismail Kasam (Decd) Throiugh ... vs Mariyambibi Hajiali Mohhamad on 6 October, 2025
NEUTRAL CITATION
C/CRA/88/2012 ORDER DATED: 06/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 88 of 2012
With
MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2014
In R/CIVIL REVISION APPLICATION NO. 88 of 2012
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ISMAIL KASAM (DECD) THROIUGH ZULEKHABIBI ISMAIL & ORS.
Versus
MARIYAMBIBI HAJIALI MOHHAMAD & ORS.
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Appearance:
MR MUKESH A PATEL(636) for the Applicant(s) No.
1,10,10.1,10.2,11,11.1,11.2,12,13,14,15,16,17,18,18.1,18.2,18.3,18.4,18.5,18
.6,18.7,18.7.1,18.7.2,18.7.3,18.7.4,18.7.5,18.7.6,19,2,20,21,2.1,22,2.2,23,2.3,
24,2.4,3,3.1,3.2,3.3,3.4,4,5,6,7,8,9
MR. AASHEER PANDYA(14115) for the Opponent(s) No. 1,2
REFUSED SERVED (R)(70) for the Opponent(s) No. 3,4,5,6,7,8
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 06/10/2025
ORAL ORDER
1. The present Revision Application is filed challenging the order dated 30.09.2011 passed by 4th Additional Senior Civil Judge, Surat, in Kirkol Application No.36 of 1986 passed below Exh.148 under the provisions of Order XXI of the Code of Civil Procedure, 1908.
2. For the sake of brevity, the parties are referred to as per their original status as that of in Kirkol Application No.36 of 1986.
3. The brief facts arising in the present Revision Application are that by virtue of the judgement and decree passed in Regular Civil Suit No.1185 of 1970, a preliminary decree was drawn and pursuant to the Kirkol Application No.62 of 1984, the Court had appointed Shri S.N.Kazi as Court Commissioner for executing a sale-deed and pursuant to the order passed by the Court, sale-deed was executed in favour of the Page 1 of 6 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:11:05 IST 2025 NEUTRAL CITATION C/CRA/88/2012 ORDER DATED: 06/10/2025 undefined applicant on 11.08.1986, which was registered before the Sub-register Office at Surat, vide Registration No.6757 and the applicant pursuant to the said sale-deed became the auction purchaser of the suit property and as the applicant had purchased the suit property by way of auction purchase and as the possession of the premises was with the opponents and it was the case of the applicant that along with judgment debtor there were other persons, who were in possession of the property and, therefore, Kirkol Application No.36 of 1986, was filed by the applicant that the appointed Court Commissioner Shri S.N.Kazi be directed to evict the opponents from the suit property and handover the possession of the suit property to the applicant. The said application was given on 26.09.1986 and from the record it can be seen that objections / obstructions were filed by the opponents vide Exh.48 and after taking into consideration the said objections/obstruction, Kirkol Application was allowed and possession warrant was issued by an order dated 30.9.2011 and pursuant to the same further orders were passed whereby the possession of the premises has been handed over to the applicant and aggrieved by the said order, the present Revision Application has been filed.
4. Learned advocate for the opponent has mainly argued that while deciding the Kirkol Application No.36 of 1986, the Court has not taken into consideration the fact that some of the opponents had already expired before the application was filed and without joining the legal heirs, the said application has been decided. Moreover, the Court has also not taken into consideration the fact that the opponents were tenants in the said premises and the Court could not have granted possession warrant whereby the opponent are dis-possessed from the premises and though Page 2 of 6 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:11:05 IST 2025 NEUTRAL CITATION C/CRA/88/2012 ORDER DATED: 06/10/2025 undefined there was no specific order in the Kirkol Application, the Baillif could not have handed over the possession of the premises to the applicant in view of the obstruction application that was filed by some of the opponents in the Kirkol Application itself. Moreover, the Court also could not have allowed the said application in view of the fact that the said application was not within the period of limitation and, therefore, the application was required to be rejected and, therefore, the present Civil Revision Application be allowed and the order passed in Kirkol Application No.36 of 1986 be quashed and set aside.
5.1 Per contra, learned advocate for the applicant has mainly argued that the only ground that has been taken by the opponent in Kirkol Application No.36 of 1986 is that they are tenants of the suit property but the fact remains that no documentary evidence has been produced by the opponent to prove that opponents are tenants in the proceedings. Moreover, no proceedings under the Rent Act have also been initiated by the opponent for protection of their possession in the suit premises.
5.2 With respect to the fact that some of the opponents had expired even at the time when the Kirkol Application was decided, no particulars have been stated in the objection that were filed vide Exh.48 and, therefore, the Court while deciding Kirkol Application has rightly allowed the same by not considering objection / obstruction application. Moreover, no application under the provisions of Order 21 of the CPC has been filed by the applicant in the Kirkol Application and in view of the said fact, the order passed below Kirkol Application No.36 of 1986 is as per provisions of law and is not required to be interfered.
Page 3 of 6 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:11:05 IST 2025 NEUTRAL CITATION C/CRA/88/2012 ORDER DATED: 06/10/2025 undefined 5.3 Learned advocate for the applicant has also drawn attention on this
Court to the provisions of Order 21 Rule 99 of the CPC and has argued that pursuant to Kirkol Application No.36 of 1986, further orders have been passed which have not been challenged by the applicant and pursuant to the said orders, the possession of the property has already been handed over to the applicant and, therefore, no application has been filed by the opponents in view the fact that they have been dispossessed from the premises and, therefore, the application is required to be rejected.
6.1 Having heard learned advocates for the respective parties and having taken into consideration the order that has been passed in Kirkol Application No.36 of 1986 , the fact remains that there is no dispute to the fact that pursuant to the order passed in Civil Suit No.1185 of 1970, the Court Commissioner was appointed and Court Commissioner has executed a sale-deed and, therefore, only objection/obstruction that has been placed in Kirkol Application is that the opponents are tenants of suit premises, but the fact remains that there is no iota of evidence produced by the opponents to prove the fact that the opponents are tenants in suit premises. The fact also will have to be taken into consideration is that the Kirkol Application is of the year 1986 and the same is decided in the year 2011 and in between also the opponents have not claimed any right before the Rent Court to declare them as a tenant of the property and / or for protection of their rights in the suit premises and, therefore, the Court while deciding the Kirkol Application has rightly held that there is nothing on record to prove that the opponents are tenants in the property and the only claim that the defendant had taken was that there were oral tenancy by which the opponents were to be in possession of the suit Page 4 of 6 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:11:05 IST 2025 NEUTRAL CITATION C/CRA/88/2012 ORDER DATED: 06/10/2025 undefined premises as tenants. The other grievance that has been raised by the opponents while filing Exh.48 in the Kirkol Application was that some of the opponents had expired, but the fact remains that no details as to who had expired and when had he expired have been placed on record and by mere statement that some of the opponents expired, it will not justify the case of the opponents. Moreover, as stated herein above, there is nothing to show that any of the opponents were tenants and it is only an oral tenancy which has been claimed by the opponent. Therefore, present revision application is required to be rejected.
6.2 On the basis of overall analysis of the material on record, on the basis of conclusion that has been referred to by the Court below, this Court is of the opinion that there is no material irregularity nor any perversity reflecting which would permit this Court to exercise revisional jurisdiction. Moreover, while deciding the Revision Application by the High Court in revisional jurisdiction under this Act is confined to find out that findings of fact recorded by the courts below is according to law and does not suffer from any abuse of law. The findings recorded by the Court below if perverse or has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or grossly erroneous that, if allowed to stand, would result in gross miscarriage of justice, the same is open for correction because it is not treated as finding according to Law and in that event the High Court, in exercise of its revisional jurisdiction under the Bombay Rent Act, is entitled to set aside the impugned order as being not legal or proper. 6.3 In the present case, in revisional jurisdiction, the High Court can not exercise its powers as an appellate power to reappreciate or reassess Page 5 of 6 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:11:05 IST 2025 NEUTRAL CITATION C/CRA/88/2012 ORDER DATED: 06/10/2025 undefined the evidence for coming to a different finding of facts. Revisional jurisdiction is not and can not be equated with the powers of reconsideration of all questions of fact as a court of first appeal.
7. Under the revisional jurisdiction, the High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. In view of the aforesaid facts and proposition of law and since no case is made out to call for any interference in the order passed by the Court, the present Revision Application requires to be dismissed and it is dismissed accordingly. Rule is discharged. No order as to costs. Consequently, connected Miscellaneous Civil Application does not survives and it is disposed of accordingly.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 6 of 6 Uploaded by MISHRA AMIT V.(HC00187) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:11:05 IST 2025