Lh Of Decd Saiyad Amadsha Jusabhsha vs Khatri Alimamad Siddiq

Gujarat High Court

Lh Of Decd Saiyad Amadsha Jusabhsha vs Khatri Alimamad Siddiq on 15 October, 2025

                                                                                                              NEUTRAL CITATION




                             C/CRA/127/2021                                 JUDGMENT DATED: 15/10/2025

                                                                                                               undefined




                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                       R/CIVIL REVISION APPLICATION NO. 127 of 2021
                                                           With
                                        CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                                            In
                                       R/CIVIL REVISION APPLICATION NO. 127 of 2021

                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR.JUSTICE SANJEEV J.THAKER
                       ================================================================
                                    Approved for Reporting                  Yes           No

                       ================================================================
                                     LH OF DECD SAIYAD AMADSHA JUSABHSHA & ORS.
                                                         Versus
                                             KHATRI ALIMAMAD SIDDIQ & ORS.
                       ================================================================
                       Appearance:
                       MANAN K PANERI(7959) for the Applicant(s) No. 1,1.1,1.2,1.3,1.4,1.5
                       DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
                       for the Opponent(s) No. 1
                       MR SANJAY G UDHWANI(10562) for the Opponent(s) No. 1.1,1.2,1.3,1.4
                       ================================================================
                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                        Date : 15/10/2025
                                                        ORAL JUDGMENT

1. The present Civil Revision Application is filed under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act), against the judgment and decree dated 18.02.2021 passed by the 10 th Additional District Judge, Bhuj-Kachchh in Regular Civil Appeal No. 101 of 2019, whereby the Appellate Court, by its judgment, confirmed the judgment and decree dated 26.09.2018 passed by the 3 rd Additional Civil Judge, Bhuj-Kachchh, in Regular Civil Suit No. 267 of 2005, and consequently, the defendant was directed to hand over the vacant and peaceful possession of the suit premises to the plaintiff.

NEUTRAL CITATION C/CRA/127/2021 JUDGMENT DATED: 15/10/2025 undefined

2. For the sake of brevity and convenience, the parties are referred to as per their original status in the suit.

3. The brief facts giving rise to the present Civil Revision Application are that the plaintiff filed a suit for possession of the premises on the grounds that the defendant was a tenant in arrears and had made permanent alterations in the suit premises without the permission of the plaintiff.

4. The Trial Court framed issues vide Exhibit 45, which are as under:

1. Whether the plaintiff proves that the defendant is in arrears of rent for more than six months, before immediate presiding of the suit?

2. Whether the plaintiff proves that the defendant has neglected to pay the due amount of rent within one month from the date of service of Notice ?

3. Whether the plaintiff proves that he had sent the amount of rent by money order but the plaintiff refused to accept the amount?

4. Whether the plaintiff proves that the defendant has without his consent, made construction of permanent nature in the suit premises? 10

5. Whether the plaintiff proves that the suit property is Page 2 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:21 IST 2025 NEUTRAL CITATION C/CRA/127/2021 JUDGMENT DATED: 15/10/2025 undefined required for reasonable and bona-fide requirement of the plaintiff himself his family members?

6. Who will have to suffer greater hardship in passing or refusing eviction decree ?

7 What is due to the Plaintiff ?

8. What order and decree?

The defendant appeared in the said suit and filed a written statement vide Exhibit 13. The plaintiff examined himself vide Exhibit 33, and the plaintiff's witness was examined vide Exhibit 60. The defendant examined himself vide Exhibit 74, and the defendant's witness was examined vide Exhibit 85. After taking into consideration the oral and documentary evidence, the Trial Court decreed the suit on the ground that the defendant, without the consent of the plaintiff, had carried out construction of a permanent nature in the suit premises.

5. Aggrieved by the said judgment and decree, the defendant filed Regular Civil Appeal No. 101 of 2019. After re-appreciating the evidence, the Appellate Court dismissed the appeal, leading to the filing of the present revision application.

6. The learned advocate for the defendant has primarily argued the following points:

NEUTRAL CITATION C/CRA/127/2021 JUDGMENT DATED: 15/10/2025 undefined

(a) The Trial Court could not have granted a decree of eviction on the ground that the defendant has made permanent construction, and that there is nothing on record to prove that the original premises handed over to the defendant was not a permanent structure.

(b) The plaintiff has failed to discharge the burden of proof regarding the allegations in the plaint that the defendant had dismantled the wooden cabin without the plaintiff's permission, unauthorizedly sold the timber, and constructed a permanent structure of cement blocks in place.

(c) The plaintiff failed to mention necessary particulars in the plaint or in his deposition regarding when the predecessor of the defendant dismantled the wooden cabin.

(d) The Trial Court and the First Appellate Court have erred in law and fact by failing to appreciate Order VI, Rules 2 and 4 of the Code of Civil Procedure, 1908, regarding necessary pleadings.

(e) Neither the pleadings, the notice, the counter-notice (Exhibits 45 and 47) nor the plaintiff's deposition vide Exhibit 33, stated the specific date on which the alleged act of creating the permanent structure was committed by the defendant's predecessor.

(f) The plaintiff occupies a premises just beside the suit premises;

thus, the fact of making construction would definitely be within the plaintiff's knowledge. The plaintiff's failure to provide details as to the date of making permanent construction suggests that the said fact is a concocted story to dispossess the defendant.

NEUTRAL CITATION C/CRA/127/2021 JUDGMENT DATED: 15/10/2025 undefined

(g) Document vide Exhibit 44, refers to a "Patra-wali Cabin," while the plaintiff's allegation is that the defendant destroyed a "wooden cabin." It is argued that the difference in description should not be a ground to evict the defendant.

(h) The Trial Court and the First Appellate Court failed to consider the deposition of the defendant's witness vide Exhibit 85, who, being a neighbour, deposed about the change in the structure of the said cabin.

(i) The defendant relied on an agreement produced vide Exhibit 92, dated 21.02.2003, signed by the plaintiff, which stated that the suit property is a permanent cabin.

7. Per Contra, the learned advocate for the plaintiff argued that the defendant cannot rely on Exhibit 92 (the alleged rent agreement of 21.02.2003) because it is neither signed by the defendant nor did the defendant act upon it. The said document stipulated a rent of Rs. 100/-, but the rent initially was Rs. 12/-, and the defendant never agreed to pay the increased rent. Furthermore, the rent deed produced vide Exhibit 44, clearly states that the suit property is a Patra-wali Cabin (folding/movable cabin), which was given on rent to the defendant.

8. Crucially, the defendant, in his cross-examination vide Exhibit 74, specifically stated that he made no changes and that the shop of permanent construction was not given to him on rent. However, the Page 5 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:21 IST 2025 NEUTRAL CITATION C/CRA/127/2021 JUDGMENT DATED: 15/10/2025 undefined Court Commissioner's report vide Exhibit 111 specifically states that the suit premises is made of cement and blocks of a permanent nature. Therefore, it is an admitted position that the defendant has made permanent construction, entitling the plaintiff to eviction.

9. Having heard the learned advocates for the parties and having considered the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court, the fact remains that when the suit property was initially given on rent vide Exhibit 44, it was a Patra-wali (Cabin/Folding/Movable Cabin). The defendant also admitted this fact vide Exhibit 74, stating that there was no permanent construction on the premises when it was rented out to him.

10. The Court Commissioner's Report clearly states that the construction in the shop is of a permanent nature using cemented blocks. The defendant has also not disputed the fact that the suit premises is now of a permanent structure. There is nothing on record to show that even oral consent of the landlord was taken before the said permanent construction was carried out. Therefore, both the Trial Court and the Appellate Court, rightly held that, the construction made is of a permanent nature, converting a movable premises into an RCC construction, and that the defendant made a construction of permanent nature without the permission of the plaintiff.

NEUTRAL CITATION C/CRA/127/2021 JUDGMENT DATED: 15/10/2025 undefined

11. With respect to the document relied upon by the defendant, Exhibit 92, it only bears the signature of the plaintiff. Moreover, it stipulates a rent of Rs. 100/-, but the defendant has failed to prove that pursuant to this agreement, the rent was increased to Rs. 100/- and that the said amount was paid.

12. The High Court cannot interfere with the concurrent finding of facts recorded by the courts below in its revisional jurisdiction under the Rent Act, unless the finding is perverse, arrived at without consideration of material evidence, or is based on no evidence or a misreading of evidence, or is grossly erroneous, which, if allowed to stand, would result in a gross miscarriage of justice. In the present case, the findings of fact recorded by both the Trial Court and the Appellate Court are neither perverse nor arrived at without consideration of the material evidence.

13. This revisional jurisdiction is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. The findings recorded by both courts are based on a critical appreciation of the evidence led by the parties and suffer from no error or material irregularity.

14. In view of the aforesaid facts and proposition of law, and in light of the concurrent findings of fact by both courts below, no case is made out to call for any interference in the judgment and order Page 7 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:21 IST 2025 NEUTRAL CITATION C/CRA/127/2021 JUDGMENT DATED: 15/10/2025 undefined passed by the Appellate Court upholding the judgment and decree of the Trial Court. The present Revision Application, therefore, requires to be dismissed, and it is dismissed accordingly.

15. In view of the order passed in the main matter, Civil Application does not survive and stands disposed of accordingly.

(SANJEEV J.THAKER,J) Manoj Kumar Rai After the pronouncement of the order, learned advocate for the petitioner has sought for stay of the order. The request made by learned advocate for the petitioner is rejected.

(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 8 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:21 IST 2025