Paluben @ Parulben Narsinhbhai ... vs Mohanbhai Pitambarbhai Vegda
2021 Latest Caselaw 302 Guj

        C/CRA/182/2020                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CIVIL REVISION APPLICATION NO. 182 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE BELA M. TRIVEDI                          Sd/-

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO

2 To be referred to the Reporter or not ?

NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any NO order made thereunder ?

========================================================== PALUBEN @ PARULBEN NARSINHBHAI MAKWANA Versus MOHANBHAI PITAMBARBHAI VEGDA ========================================================== Appearance:

MR A B PATEL(7467) for the Applicant(s) No. 1,2,3 MR H N SEVAK(7580) for the Applicant(s) No. 1,2,3 MR ARPIT P PATEL(5497) for the Opponent(s) No. 1 ==========================================================

CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

Date : 11/01/2021

CAV JUDGMENT

1. The petitioners - original opponents have

preferred this Civil Revision Application under

Section 115 of CPC, challenging the judgement

and order dated 18.2.2020 passed by the judge,

Small Cause Court No.8, Ahmedabad (hereinafter

referred to as "the Court below") in PSRP No.41

of 2013 filed by the respondent (original

applicant) under Section 41 of the Presidency

Small Cause Courts Act, 1882 (hereinafter

referred to as "the said Act"). The Court below

vide the impugned order has issued an order for

possession of the application premises bearing

Survey No.00067/20/A1/6/10, TP Scheme No.1,

Final Plot No.67, situated at Latibazar Area,

Ektanagar, Ahmedabad City under Section 43 of

the said Act, against the present petitioners

(original opponents).

2. The PSRP No.41 of 2013 was filed by the present

respondent - original applicant, seeking

possession warrant of the application premises

from the present petitioners (original

opponents), contending inter alia that the

applicant was the owner of the application

premises. The mother-in-law of the applicant and

the opponent No.1 knew each other very well and

considering the difficulty of the opponent No.1,

the applicant had permitted the opponent No.1 to

use the application premises for residence. The

opponent No.1 had also assured the applicant

that she would vacate the premises within six

months once she got another house. The opponent

No.1 had also agreed to pay the electricity

charges and the municipal taxes of the premises

in question during the said period. However, the

opponent No.1 did not vacate the application

premises after six months and kept on making

excuses. The opponent No.1 also called the

opponent Nos.2 and 3 who happened to be her

children, to stay with her in the said premises.

The applicant ultimately gave a notice dated

5.4.2013 to the opponents, seeking possession of

the application premises and terminating the

permission to use the premises for residence,

however, the opponents did not hand over the

possession of the said premises and gave evasive

reply. The applicant, therefor, had filed the

Application for the reliefs as prayed for in the

said application filed under Section 41 of the

said Act.

3. The opponents having been served with the

summons, had appeared before the Court below and

filed their reply vide Exh.15, denying the

allegations and averments made in the

application. It was contended that the applicant

had agreed to sell the application premises to

the opponent No.1 by accepting the consideration

in the year 2003 and to hand over the possession

of the same to the opponent No.1 and since then

the opponent No.1 had become the owner and

occupant of the said premises. It was also

contended that the opponent No.1 had thereafter

insisted the applicant to execute the legal

documents in favour of the opponent No.1, but

the applicant did not execute the same and had

filed the false application against the

opponents.

4. The Court below, after framing the points for

consideration and considering the evidence on

record, passed the impugned order issuing the

order of possession of the application premises

against the opponents under Section 43 of the

said Act. Being aggrieved by the same the

present application has been filed by the

petitioners - original opponents.

5. The learned Advocate Mr.H N. Sevak for the

petitioners vehemently submitted that the

provisions contained in Section 41 of the said

Act did not apply to the facts of the present

case and the Court below had no jurisdiction to

entertain the said application filed by the

respondent. He also submitted that the

petitioner No.1 had purchased the premises in

question from the respondent in the year 2003 by

making full payment of consideration, however,

the respondent had not executed any legal

documents in favour of the petitioner No.1, and

taking undue advantage of the said situation,

the respondent had filed the application under

Section 41 of the said Act, which was not

maintainable in the eye of law.

6. At the outset, it would be beneficial to refer

to Section 41 of the said Act which reads as

under:-

"41. When any person has had possession of any immovable property situate within the

local limits of the Small Cause Court's jurisdiction and of which the annual value at a rack­rent does not exceed two lacs rupees,

as the tenant, or by permission, of another person, or of some person, or of some person through whom such other person claims, and such tenancy or permission has determined or been withdrawn,

and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person,

Such other person (hereinafter called the applicant) may apply to the Small Cause Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property."

7. Section 43 reads as under:-

"43. If the occupant does not appear at the time appointed and show cause to the contrary, the applicant shall, if the Small Cause Court is satisfied that he is entitled to apply under Section 41, be entitled to an order addressed to a bailiff of the Court directing him to give possession of the property to the applicant on such day as the Court thinks fit to name in such order.

Explanation.­ If the occupant proves that the tenancy was created or permission granted by virtue of a title which determined previous to the date of the application, he shall be deemed to have shown cause within the meaning of this section."

8. From the bare reading of the said provisions, it

appears that if any person has had possession of

any immovable property situated within the local

limits of the Small Cause Court's jurisdiction

and of which the annual value at a rack-rent

does not exceed Rs.2,00,000/-, as the tenant or

as a premise-user and if such tenant or occupier

refuses to deliver up such property in

compliance with a request made to him by such

person, such other person (the applicant) may

apply to the Small Cause Court for a summons

against the occupant calling upon him to show

cause as to why he should not be compelled to

deliver up the property. So far as the facts of

the present case are concerned, it is not

disputed that the premises in question belongs

to the respondent - original applicant, and that

the mother-in-law of the respondent - original

applicant and the petitioner No.1 - original

opponent No.1 had good relationship with each

other. The only bone of contention raised by the

petitioners - opponents before the Court below

was that in the year 2003, the petitioner No.1

had orally purchased the premises in question

from the respondent, however, the respondent had

failed execute the legal documents of sale in

favour of the petitioner No.1. Apart from the

fact that such a plea is untenable in the eye of

law, as any oral evidence in respect of

immovable property is not permissible, the

petitioners had miserably failed to prove before

the Court below that the petitioner No.1 had

paid any consideration to the respondent or the

respondent had ever agreed to sell the said

premises to the petitioner No.1. As against

that, the respondent - original applicant had

duly proved by leading cogent evidence that the

respondent was the owner of the premises in

question and had permitted the petitioner No.1

to use the premises for residential purpose, on

account of the good relationship and the

petitioners thereafter had failed to vacate the

premises, though agreed to vacate within six

months. The Court below, after appreciating the

evidence on record, has rightly entertained the

application filed by the respondent - original

applicant under Section 41 of the said Act and

issued the order of possession as contemplated

under Section 43 of the said Act. The Court does

not find any error of jurisdiction or any

infirmity in the impugned order passed by the

Court below.

9. In that view of the matter, the present Civil

Revision Application, being devoid of merit,

deserves to be dismissed and is accordingly

dismissed.

Sd/-

(BELA M. TRIVEDI, J) V.V.P. PODUVAL