Vallabhbhai Keshubhai Patel vs Nitinbhai Babubhai Shah

Gujarat High Court

Vallabhbhai Keshubhai Patel vs Nitinbhai Babubhai Shah on 16 October, 2025

                                                                                                                  NEUTRAL CITATION




                           C/CRA/587/2025                                       JUDGMENT DATED: 16/10/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/CIVIL REVISION APPLICATION NO. 587 of 2025


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR.JUSTICE SANJEEV J.THAKER                                         sd/-
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                                  Approved for Reporting                        Yes           No
                                                                                              ✔
                      ==========================================================
                                               VALLABHBHAI KESHUBHAI PATEL
                                                            Versus
                                               NITINBHAI BABUBHAI SHAH & ANR.
                      ==========================================================
                      Appearance:
                      MR ANAND R PATEL(2424) for the Applicant(s) No. 1
                      MR ASHOK N PARMAR(2431) for the Applicant(s) No. 1
                      MR. KALRAV R PATEL(7041) for the Opponent(s) No. 1,2
                      ==========================================================

                         CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                           Date : 16/10/2025

                                                          ORAL JUDGMENT

1. The present Civil Revision Application is filed challenging the judgment and decree dated 21.07.2025, passed by, Bench No.1 of Small Causes Court, Ahmedabad, in Civil Appeal No.112 of 2016, whereby the judgment and decree, passed by the Small Causes Court, Ahmedabad, in HRP No.1385 of 2011, has been confirmed.

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

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3. The brief facts arising in the present Civil Revision Application are that, the plaintiff claiming to be the owner of the property has filed a suit for eviction on the ground that the defendant has erected permanent structural alteration in the suit premises without the plaintiff's consent and thereby caused serious damage to the suit premises and that the defendant has committed an act contrary to provisions of Section 108(O) of the Transfer of Property Act and as per Section 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after referred to as "the Rent Act") and that the plaintiff is entitled for eviction under Section 13(1)(b) of the Rent Act. The issues are framed vide Exhibit 22, which are as under:

"1. Whether the defendant has made or erected unlawful permanent structural alteration in the suit premise without plaintiffs consent and cause serious damage to the premises? 1(a). Whether the plaintiff proves that the defendant has committed any act contrary provision of the Sec.108(0) of the T.P.Act as per sec. 13(1)(a) of the Bombay Rent Act.

2. Whether the plaintiff is entitled for eviction decree u/s.13(b) of the Bombay Rent Act?

3. Whether the plaintiff is entitled to get rent as alleged?

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4. Whether the plaintiff is entitled to get possession of the suit premises?

5. What order and decree?"

4. The plaintiff examined himself vide Exhibit 27 and the witnesses of the plaintiff were examined vide Exhibit 37, 57, 69, 45 and 64. The defendant examined himself vide Exhibit 76 and the witnesses of the defendant were examined vide Exhibit 96 and the defendant examined one Panchal Dipak Kanubhai and after considering the oral evidence, documentary evidence and giving findings on all the issues, the Trial Court allowed the said suit and directed the defendant to handover the vacant and peaceful possession of the premises within a period of 60 days. Aggrieved by the said order, the defendant filed Regular Civil Appeal No.112 of 2016 and after re-appreciating the evidence, the Appellate Court dismissed the said appeal, aggrieved by the said order, the present Civil Revision Applications is filed.

5. Learned Senior Advocate Mr.Mehul Shah for the defendant has mainly argued that, the Trial Court and the First Appellate Court have erred in not appreciating that the appellant had to renovate the house and the tiles of the flooring were uprooted and therefore, repairing was necessary and that the Trial Court and the First Appellate Court have erred in holding that the Page 3 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:25 IST 2025 NEUTRAL CITATION C/CRA/587/2025 JUDGMENT DATED: 16/10/2025 undefined defendant has made permanent alteration in the suit premises and the fact remains that the defendant has only fitted tiles on the floor and therefore, the Trial Court and the First Appellate Court could not have granted a decree of eviction on the ground that the defendant has made permanent alteration in the premises.

6. The learned senior advocate Mr.Mehul Shah for the defendant has also argued that the defendant is residing in the suit premises since the year 1980 and had made several requests to the plaintiff to repair the disputed property, but the same were never repaired.

7. The learned senior advocate Mr.Mehul Shah has also argued that the Trial Court and the First Appellate Court have erred in not properly appreciating Section 13(1)(a) of the Rent Act as the defendant has never made any changes in the suit premises that would fall under the purview of change in permanent structures.

8. The learned senior advocate Mr.Mehul Shah for the defendant has also argued that, the defendant has not put the alleged gadder and the said gadders were kept by the original owners and therefore, the fact of defendant placing the said gadders and damaging the property has not been proved by the plaintiff Page 4 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:25 IST 2025 NEUTRAL CITATION C/CRA/587/2025 JUDGMENT DATED: 16/10/2025 undefined and therefore, the Trial Court and the First Appellate Court could not have passed a judgment and decree of eviction.

9. The learned senior advocate Mr.Mehul Shah for the defendant has also argued that at one breath, the plaintiff has stated that because of the gadders, the suit property has been damaged, but the fact remains that the plaintiff himself has installed solar system of 1500 k.g. weight on the roof and therefore, it cannot be said that the suit property has been damaged because of placing the gadders.

10. The learned senior advocate Mr.Mehul Shah for the defendant has also argued that even if it is believed that the defendant has placed gadders in the suit premises, the said gadders would strengthen the suit property and therefore, just by placing the gadder, it cannot be said that the defendant has caused destruction and damage to the structure of the suit premises and the same could not be removed, without damaging the suit property.

11. The learned senior advocate Mr.Mehul Shah for the defendant has also argued that, if the evidence of the expert witness is taken into consideration, from the said evidence also, it cannot be said that, by placing the said gadders, the suit property has been damaged.

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12. The learned senior advocate for the defendant has relied on the judgments in case of (i) Rafat Ali Vs. Sugni Bai reported in 1999 AIR SC 283, (ii) Mahmad Umar Abdul Rahim Narmavala Vs. Shah Manilal Gokaldas reported in 1968 GLR 104, and (iii) G.Shashikala (Died) through Legal representatives Vs. G.Kalawati Bai (Died) Through legal representatives and others reported in AIR 2019 SC 2631.

13. Per contra, learned advocate for the plaintiff has argued that if the entire case of the plaintiff is taken into consideration, the plaintiff has proved that the defendant has broken the wall and put iron gadders in the suit premises. The learned advocate for the plaintiff has also tried to canvass his argument, that there was one wall between the drawing room and kitchen and that the defendant has demolished the same and he has fitted iron gadders in the ceiling and thereby has damaged the suit property and terrace.

14. The learned advocate for the plaintiff has relied on the oral evidence of the neighbor vide Exhibit-57, wherein he has stated that when the plaintiff was residing in the suit premises, there was constructed RCC work in the open land.

15. Moreover, it has come on record by the cross-

NEUTRAL CITATION C/CRA/587/2025 JUDGMENT DATED: 16/10/2025 undefined examination of the witness of the plaintiff that, the gadders in the suit premises are approximately 5 to 6 years old. The fact also remains that, it is an admitted position that the defendant is in possession of the property since the year 1980 and therefore, when the suit is filed in the year 2011, and when the oral evidence is taken in the year 2015, the said gadders were stated to be fitted somewhere in the year 2010, as per the expert. Therefore, it has been clearly established that the defendant has placed gadders in the suit premises and thereby damaged the suit premises and therefore, the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court are as per provisions of law, after considering the oral evidence and that there is no perversity and therefore, the same does not require to be interfered.

16. Having heard 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, the plaintiff has tried to place his case on the oral evidence of the expert and also of the neighbor and the plaintiff has produced photographs, which have been admitted by the defendant in his cross-examination and the said photographs showed the condition of the suit premises and from the said photographs produced vide Exhibits 83 to 86, it has been clearly stated that iron gadders have been fitted in the Page 7 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:25 IST 2025 NEUTRAL CITATION C/CRA/587/2025 JUDGMENT DATED: 16/10/2025 undefined ceiling and it is shown that there is new plaster. Moreover, even the witness of the defendant produced vide Exhibit 96, who is approved Civil Engineer, has stated that the said gadders have been placed approximately before 5 to 6 years, the said cross-examination was conducted on 22.04.2015, and therefore, the said gadders as per the expert has been fitted in the year 2010.

17. Admittedly, the said suit has been filed in the year 2011, and the defendant is in possession of the property since 1980, therefore, the question of plaintiff having placed the said gadders in the suit premises does not arise.

18. Moreover, it also cannot be said that, at a time when the suit property was given on rent, the said gadders were there, in view of the fact that the defendant's expert himself has stated in oral evidence that it has been placed 5 to 6 years before. Though, the defendant has taken a defense that the plaintiff has not proved that at the time when the suit property was given on rent, there was a constructed wall between the drawing room and kitchen, the plaintiff's witness architect Narendra Shah has been examined vide Exhibit 69 and he has stated that there was a wall between the drawing room and the kitchen and due to the said alteration, the terrace is damaged and a second floor premises cannot be erected because of the removal of the supported wall at the first floor. Moreover, if Page 8 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:25 IST 2025 NEUTRAL CITATION C/CRA/587/2025 JUDGMENT DATED: 16/10/2025 undefined the oral evidence of the employee of Ahmedabad Municipal Corporation, who has been examined vide Exhibit 64 is taken into consideration, he has referred the construction plan of the bunglow and produced the said approved plan of Ahmedabad Municipal Corporation vide Exhibit 65, and even as per the said approved plans, there was an approved partition wall between the drawing room and the kitchen, therefore, at the time of approval of map of construction of the first floor, the partition wall which is described as load-bearing wall was sanctioned by the competent authority. The plaintiff has also examined the architect of the suit premises, vide Exhibit 69, and the said witness has also deposed that the construction in the suit premises was prepared by him and was approved by Ahmedabad Municipal Corporation, and accordingly it was constructed. The said witness has also deposed that there existed a 9-inch wall between the drawing room and the kitchen and the said witness has deposed that the tenant has removed the said 9-inch wall and has put iron gadder in place of the said wall, which damages the suit premises, therefore, there is an expert opinion, which clearly states that by way of removal of the wall, the suit property has been damaged.

19. With respect to the fact of the plaintiff putting solar system of 1500 k.g. on the roof and considering the said fact, the deposition of the expert, who have been examined by the Page 9 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:25 IST 2025 NEUTRAL CITATION C/CRA/587/2025 JUDGMENT DATED: 16/10/2025 undefined plaintiff and defendant, clearly state that by way of removal of the said wall and placing the gadders, and by making the said permanent alteration, the suit property has been damaged and the same cannot be removed without damaging the suit property.

20. With respect to the judgments relied upon by the learned advocate for the defendant in case of Rafat Ali Vs. Sugni Bai reported in 1999 AIR SC 283 and Mahmad Umar Abdul Rahim Narmavala Vs. Shah Manilal Gokaldas reported in 1968 GLR 104, will not apply to the facts of the present case, in view of the fact that, in the said case, the Court had taken into consideration that, all acts of waste do not amount to a ground of eviction and it is only those acts of waste which would very probably impair the value of the building or its utility and in present case there is expert evidence that because of gadders there is damage to the property.

21. In the present case, the experts have categorically stated that by removal of the wall, the suit property has been damaged and therefore, the said judgment will not be applicable to the facts of the present case.

22. With respect to the third judgment i.e. G.Shashikala (Died) through Legal representatives Vs. G.Kalawati Bai (Died) Through legal representatives and others, the same Page 10 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:25 IST 2025 NEUTRAL CITATION C/CRA/587/2025 JUDGMENT DATED: 16/10/2025 undefined are general principles of Order 41 Rule 27 of the Code. In the present case, in view of the clear finding of the expert that, if the wall is removed the same would damage the property and the fact of the defendant's witness, which has been examined vide Exhibit 96, has categorically stated that the said iron gadders have been placed somewhere in the year 2010, i.e. when the defendant was in occupation of the premises, the same could not have been placed by the defendant without taking consent of the plaintiff and therefore, there is no illegality in the order passed by the Trial Court and confirmed by the First Appellate Court.

23. 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 Page 11 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:25 IST 2025 NEUTRAL CITATION C/CRA/587/2025 JUDGMENT DATED: 16/10/2025 undefined Court is not expected to reappreciate the evidence just to replace the findings of the lower courts."

24. 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."

25. Under the circumstances, 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 Page 12 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:25 IST 2025 NEUTRAL CITATION C/CRA/587/2025 JUDGMENT DATED: 16/10/2025 undefined the petitioner has failed to prove his case before the learned Trial Court as well as before the First Appellate Court. This Court does not find any substance in the present Civil Revision Application as the same is devoid of any merit both on facts and law and the same is accordingly dismissed.

(SANJEEV J.THAKER,J) Further Order After pronouncement of the order, the learned senior advocate Mr. Mehul Shah has sought stay the operation of the order, in view of the fact that the petitioner intents to challenge the said order.

In view of the said fact, the operation and execution of the order is stayed for a period of four weeks.

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(SANJEEV J.THAKER,J) URIL RANA Page 13 of 13 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 05:52:25 IST 2025