Gujarat High Court
Shantaben Rajubhai Marwadi Bhil vs Yogeshkumar Prahladbhai Upadhyay on 15 October, 2025
NEUTRAL CITATION
C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025
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Reserved On : 15/09/2025
Pronounced On : 15/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 341 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SECOND APPEAL NO. 341 of 2022
With
R/CIVIL REVISION APPLICATION NO. 516 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/CIVIL REVISION APPLICATION NO. 516 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
NO
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SHANTABEN RAJUBHAI MARWADI BHIL
Versus
YOGESHKUMAR PRAHLADBHAI UPADHYAY & ANR.
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Appearance:
MR SAURABH M PATEL(5019) for the Appellant(s) No. 1
MR DEEP B KOTHARI(12220) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 ('CPC', for short) challenging the judgment and decree dated 20.04.2024, passed in Regular Civil Page 1 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025 NEUTRAL CITATION C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025 undefined Appeal No.22 of 2021, by Additional District Judge at Modasa, whereby the judgment and decree dated 20.07.2021, passed by Principal Senior Civil Judge, Modasa, in Regular Civil Suit No.50 of 2013, has been confirmed.
2. For the sake of convenience, the parties are referred to as their original status referred to in the suit.
FACTS :
3.1 The facts of the present Second Appeal are that, the plaintiff had filed suit claiming to be the tenant of the suit premises, since 2004 and that the defendant of Civil Suit No.50 of 2013 are owners of suit property and that the suit was filed by the plaintiff in capacity of being tenant of the suit premises and in the said suit, the plaintiff had sought for injunction restraining the defendant - landlord from dispossessing the plaintiff from the suit premises. Therefore, the said suit that has been filed by the plaintiff is under Rent Act and the said order was challenged under Section 96 of CPC and in view of the fact that landlord had already filed a separate suit for possession, under the Rent Act being Civil Suit No.79 of 2014 and the fact that there is no subsisting agreement between the plaintiff and defendant, the said appeal was also dismissed.
Page 2 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025NEUTRAL CITATION C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025 undefined 3.2 Aggrieved by the said judgment and decree passed by the appellate Court, present Second Appeal is being filed.
3.3 Learned advocate for the tenant has fairly stated that in view of the fact that separate suit for possession has already been filed by the landlord and the suit was filed for restraining landlord from taking possession of the suit premises without due process of law, the civil suit filed by the tenant had become infructuous and entire submission of the appellant was with respect to Civil Revision Application filed by the appellant.
3.4 Being aggrieved by the judgment and decree dated 20.04.2022 passed by the Additional Judge at Modasa, Dist.Arvalli in Regular Civil Appeal No.23 of 2021, whereby the Additional District Judge has confirmed and upheld the judgment and decree dated 20.07.2021 passed by the Principal Senior Civil Judge, Modas in Regular Civil Suit No.79 of 2014.
3.5 After the tenant had filed the suit for injunction restraining the landlord from dispossessing the tenant from the suit premises, the landlord filed suit for eviction on the ground that period of lease has expired and there was no subsisting agreement between the plaintiff and defendant. The trial Court framed issues vide Exh.14 and after considering the oral evidence and documentary evidence, the trial Court decreed the said suit and directed the tenant to handover Page 3 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025 NEUTRAL CITATION C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025 undefined peaceful possession of the suit premises. The said judgment and decree passed in Regular Civil Suit No.79 of 2014, was challenged by the tenant, by filing Regular Civil Appeal No.23 of 2021 and after re-appreciating the evidence, the first appellate Court dismissed the said appeal. Hence, the present Second Appeal.
4.1 Learned advocate for the appellant / petitioner / tenant has fairly stated that, in view of the fact that landlord had filed Regular Civil Suit No.79 of 2014 for eviction, the civil suit for injunction filed by tenant restraining the landlord from taking possession of the suit property without due process of law, had become infructuous. With respect to the Civil Revision Application, the same is challenged pursuant to the order that was passed in eviction proceedings whereby the trial Court has granted decree of eviction in favour of landlord which has been confirmed by the first appellate Court.
4.2 Learned advocate for the tenant has mainly argued that in view of the fact that, the agreement produced vide Exh.24 which is for a period from 01.12.2010 to 30.11.2013, the same having been not registered, the Court could not have taken into consideration the said agreement and could not have granted decree of eviction against the tenant.
Page 4 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025NEUTRAL CITATION C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025 undefined 4.3 Learned advocate for the tenant has also argued that there are no documentary evidence to prove the fact that the plaintiff of Civil Suit No.79 of 2014, was the owner of the suit premises and therefore also the suit could not have been filed by the plaintiff for eviction and, therefore, the judgment and decree passed by the trial Court and confirmed by the appellate Court is required to be quashed and set aside.
5.1 Per contra, learned advocate for the landlord has argued that, from the record it can be clearly established that an agreement was entered into between the plaintiff and defendant on 02.12.2004, which is produced vide Exh.71, whereby the property was given on rent to the tenant from 02.12.2004. The said agreement also stipulates that the same will be mutually extended and thereupon the said agreement has been extended for the period from 2007 to 2010 and thereafter, vide Exh.24, agreement was entered into between the plaintiff and defendant and the period of tenancy was, from 01.12.2010 to 30.11.2013 and admittedly on the date of filing suit there was no subsisting agreement between the plaintiff and defendant.
5.2 Moreover, learned advocate for the landlord has also argued that in view of the fact that the period of tenancy has expired, due to efflux of time, there is no subsisting rent agreement between the plaintiff and defendant and, therefore, the tenant cannot occupy the Page 5 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025 NEUTRAL CITATION C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025 undefined premises. It has also been argued by the learned advocate for the landlord that vide Exh.25 notice for termination had already been given to tenant on 03.08.2013, which has been replied by the tenant. Therefore, the trial Court and first appellate Court have rightly decided the said suit and, therefore, the present revision application is required to be rejected.
6.1 Having heard learned advocate for the parties and having considered the judgment and decree passed in Regular Civil Suit No.50 of 2013 whereby the appeal was filed being Regular Civil Appeal and also taking into consideration the judgment and decree passed in Regular Civil Suit No.79 of 2014, which has been confirmed in Regular Civil Appeal No.23 of 2021, the facts of the matter is that in Regular Civil Suit No.50 of 2013, the tenant had filed suit for protection of his possession in view of the fact that the plaintiff of the said suit has come forward before the Court on the ground that he is a tenant of the suit premises and, therefore, he may not be dispossessed without due process of law and, therefore, Court's exercising power had decided the suit, under the Rent Act, in view of Section 28 of the Rent Act. Thereafter the said order was challenged by way of First Appeal under Section 29 of the Rent Act which is not permissible under Section 29 of the Rent Act and the Second Appeal challenging the said order which has been passed under the Rent Act is not permitted under Section 29(3) of the Rent Act.
Page 6 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025NEUTRAL CITATION C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025 undefined 6.2 Be that as it may, the fact also remains that learned advocate for the tenant has also argued that, in view of the fact that separate suit being Civil Suit No.79 of 2014 had been filed seeking possession, the suit that was filed by the tenant had become infructuous and in view of the said fact, there are no substantial questions of law involved in the said Second Appeal and, therefore, said Second Appeal is dismissed.
6.3 With respect to ground under challenge in the Civil Revision Application, the first issue that has been raised is with respect to registration of agreement produced vide Exh.24, whereby rent agreement is from the year 2010 to 2013 which is produced vide Exh.24 and the same is not a registered document. But the fact remains that in the suit that was filed by the tenant, the tenant himself had relied upon the said agreement, which the tenant is saying is not registered document.
6.4 In the present case, if the initial first rent agreement produced vide Exh.71, is taken into consideration, the same was registered rent agreement and, therefore, there is no denial of relationship of landlord and tenant wherein the defendant herself has admitted that, she has paid rent @ Rs.2380/- and the same is based on unregistered instrument of the year 2010. Moreover, service of notice, produced vide Exh.25, whereby the landlord had intimated the tenant, to evict the suit premises has also been proved and the same is not disputed Page 7 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025 NEUTRAL CITATION C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025 undefined by the tenant, the same was also replied by the tenant by their reply which has been produced vide Exh.26, wherein also the tenant has admitted that rent agreement was entered into and thereafter fresh rent agreement from 01.12.2007 to 30.11.2010, had taken place and thereafter from 01.12.2010 to 30.11.2013, the same which has been produced vide Exh.24 and all-throughout the defendant tenant has admitted about said rent agreement.
6.5 Though a defense has been raised by the tenant that no notice, under Section 106 of the Transfer of Property Act, has been issued, but the fact remains that, admittedly in the present case initial rent agreement was registered and thereafter fresh agreement produced vide Exh.24, is not registered, but the fact remains that said period of unregistered rent agreement has also expired and, therefore, termination of tenancy by efflux of time, the question of statutory notice under Section 106 does not arise.
6.6 In the case of Pooranchand vs. Motilal and others, reported in AIR 1964 SC 461, the Court held that in termination of tenancy, by efflux of time, question of statutory notice under Section 106 does not arise. In the present case, there is no agreement which is subsisting and in the reply filed, vide Exh.26, the defendant himself has admitted that defendant is a tenant in the property.
Page 8 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025NEUTRAL CITATION C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025 undefined 6.7 Moreover, if Civil Suit No.50 of 2013 is taken into consideration, the tenant in the said suit has also admitted that the defendant is tenant in the property. Therefore, even after the said document which was compulsorily required to be registered was not registered, the same would give rise to presumption under Section 106 of the Transfer of Property Act, that the relationship which was established between the parties was that of landlord and tenant and that it was monthly tenancy, therefore, the judgment and decree passed by the trial Court and confirmed by the appellate Court does not require any interference.
6.8 Moreover, the defense taken that the plaintiff who had filed suit for eviction, by way of Civil Suit no.79 of 2014, is not the owner of premises as argued by learned advocate for the tenant, the fact remains that tenant himself while filing Regular Civil Suit No.50 of 2013 has clearly admitted that the plaintiff is owner of the property and in view of the same, present appeal requires to be dismissed.
7. In the present case, the conclusion which has been reached by both the Trial Court and the Appellate Court cannot be interfered as the judgment and decree of the Court below are not perverse, arbitrary so as to warrant interference. Moreover, as per the well settled decisions of this Court as well as the Hon'ble Apex Court, the Court ordinary will not interfere with concurrent findings of fact except in exceptional cases Page 9 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025 NEUTRAL CITATION C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025 undefined where the findings are such that it shocks the conscious of the Court or may disrespect to the forms of legal process or some violation or some principle of natural justice or otherwise substantial and great injustice has been done.
8. It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-
"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."
9. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
10. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises Page 10 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025 NEUTRAL CITATION C/SA/341/2022 CAV JUDGMENT DATED: 15/10/2025 undefined in the present appeal. The appellants have failed to prove their case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed. The Civil Revision Application is also dismissed. Connected Civil Applications, in Second Appeal and Civil Revision Application, are disposed of accordingly.
(SANJEEV J.THAKER,J)
11. After pronouncement of the judgment today, learned advocate for the appellant has sought for stay of the implementation, execution and operation of the order with a view to challenge the said order. Request is acceded to. The order is stayed for the period of four weeks.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 11 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:29:35 IST 2025