Nainesh Ratilal Patel vs Bhartiben Chunilal Bhatt
2021 Latest Caselaw 4366 Guj

       C/SCA/18178/2017                              JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 18178 of 2017

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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     Whether Reporters of Local Papers may be allowed
 1                                                               NO
     to see the judgment ?

 2 To be referred to the Reporter or not ?                      YES

     Whether their Lordships wish to see the fair copy
 3                                                               NO
     of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution           NO
   of India or any order made thereunder ?

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                 NAINESH RATILAL PATEL
                           Versus
               BHARTIBEN CHUNILAL BHATT
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Appearance:
ANSHUL N SHAH(8540) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
SERVED BY PUBLICATION IN NEWS(75) for the Respondent(s) No.
1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 18/03/2021

                          ORAL JUDGMENT

1. This writ petition under Article 226 and 227 of the Constitution of India is preferred by the petitioner - original plaintiff with a prayer to quash and set aside the order dated 28.08.2017, passed by the learned 3rd Additional District Judge,

C/SCA/18178/2017 JUDGMENT

Vadodara in Civil Appeal No. 35 of 2017, whereby, the learned District Judge was pleased to allow the said appeal by quashing and setting aside the order impugned therein dated 27.01.2017, passed below exh. 5 in Regular Civil Suit No. 121 of 2016 by the learned 14th Additional Senior Civil Judge, Vadodara by which, status quo qua suit property was directed to be maintained by the parties to the suit till the final disposal of the suit.

2. Brief facts of the case on hand are that the respondent No. 1 herein - original defendant is the ex wife of deceased Vasantray Shantilal Bhatt. The marriage solemnized between them on 26.05.1964 came to be dissolved by an order dated 30.11.1991, passed by the learned Assistant Judge, Rajkot in Hindu Marriage Petition (HMP) No. 45/86. The said order has remained unchallenged, meaning thereby, the same has attained finality.

2.1 As the facts go, after divorce, the petitioner herein used to take care including medication etc. of deceased Vasantray Shantilal Bhatt, in the absence of his divorced wife (respondent No. 1 herein) and the son, till the last days of Vasantray Shantilal Bhatt and also used to stay with him in his house. In 2013, to be precise on 21.07.2013, Vasantray Shantilal Bhatt issued a writing in favour of his son Chetan that in the event he resurfaces, allow the petitioner to stay in the said property after his demise. It is also stated that the present petitioner also borne more than Rs.91,000/- towards medical expenses of Vasantray Shantilal Bhatt. That, after demise of Vasantray Shantilal Bhatt on 08.01.2016, the present petitioner went to take care of his pregnant wife leaving the premises of Vasantray Shantilal Bhatt for a few days and in the absence of the petitioner, the

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respondent No. 1 herein stated to have entered the house illegally. Therefore, the petitioner preferred a Regular Civil Suit No. 121 of 2016 before the learned Principal Senior Civil Judge, Vadodara for restoration of possession of immovable property with interim injunction application. In the said suit, by an order dated 27.01.2017, the learned trial Judge was pleased to grant status quo qua suit property till final disposal of the suit. Against the said order, the respondent No. 1 preferred Civil Misc. Appeal No. 35 of 2017 before the learned District Judge, who, by an order dated 28.08.2017, allowed the said appeal, setting aside the order dated 27.01.2017. Against the said order, the petitioner herein preferred an application exh. 14 for stay of order dated 28.08.2017 so as to enable the petitioner to prefer appeal before this Court, which also came to be rejected vide order dated 29.08.2017. Hence, this petition.

3. Heard, learned advocates Mr. Anshul Shah and Mr. S. P. Majmudar for the petitioner. Though served, nobody has put in appearance for the respondents.

4. The learned advocate for the petitioner, at all vehemence at his command, submitted that the impugned order passed by the learned District Judge, is contrary to law and evidence on record. It is submitted that the learned District Judge has committed gross error while passing the impugned order and vacating the status quo. He submitted that it ought to have been appreciated by the learned District Judge that the petitioner was in possession of the suit property and the petitioner was residing with late Vasantray Shantilal Bhatt in the said suit property and hence, the injunction qua the suit property was required to be granted. He further submitted that the learned District Judge has

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misinterpreted the ratio laid down in Maria Margarida Sequeria Fernandes v. Erasmo Jack De Sequeria (Dead) through L.Rs., (2012) 5 SCC 370. It is submitted that the said decision would be of no avail to the respondent No. 1, ex wife of late Vasantray Shantilal Bhatt, more particularly, for the reason that the respondent No. 1 was not in possession of the suit property. It is submitted that, as observed in the said decision, no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even, by long possession of years or decades such person would not acquire any right or interest in the said property. Further, it is observed that caretaker, watchman, or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. The learned advocate for the petitioner submitted that the learned District Judge has failed to appreciate the fact that the petitioner herein is not claiming any title in the suit property but merely has prayed for restoration of possession of the suit property as allowed by the real owner i.e. late Vasantray Shantilal Bhatt by virtue of a letter dated 21.07.2013 addressed to his son Chetanbhai, a copy of which is already on record. It is further submitted that respondent No. 1 herein is a divorced wife of late Vasantray Shantilal Bhatt and has no right, title and/or claim in the suit property.

4.1 The learned advocate for the petitioner further, inviting attention to the List of Documents produced in the suit, submitted that all these documents viz. copy of Share Certificate of residential house No. 5/A, copy of customary divorce and the judgment and decree in divorce petition, copy of affidavits of society residents, copy of letters of Vasantray Shantilal Bhatt,

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copy of power of attorney in favour of the petitioner, copy of medical bill and receipts thereof etc. substantiate the say of the petitioner and are suggestive of the fact that the balance of convenience is in favour of the present petitioner.

4.2 It is further submitted that when the decree of divorce of 1991 between late Vasantray Shantilal Bhatt and the respondent No. 1 herein has attained finality and when, during the last days of Vasantray Shantilal Bhatt, nobody took care to be by the side of Vasantray Shantilal Bhatt, even not his son namely Chetan, save and except the present petitioner, the respondent No. 1 has no right in the suit property. It is submitted that wife is entitled to maintenance but then in the case on hand, the divorce decree is of 1991 and more than 25 years have been passed thereafter. Further, the respondent No. 1 has come into picture only after demise of Vasantray Shantilal Bhatt and prior to that, she has never taken care of Vasantray Shantilal Bhatt and now, she has come with the facts which are not germane and accordingly, the learned District Judge has committed a gross error in allowing the appeal and vacating the status quo order.

4.3 Thus, making above submissions, it is submitted that the present writ petition may be allowed by setting aside the impugned order.

5. As referred to herein above, for the respondents, none has put in appearance.

6. Regard being had to the submissions advanced by the learned advocate for the petitioner and a perusal of the order impugned herein as well as the documents available on record, it

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appears that the petitioner herein has filed a suit for restoration of possession of the suit premises which belongs to late Vasantray Shantilal Bhatt of whom, the petitioner was taking care of. The respondent No. 1 herein is the ex wife of late Vasantray Shantilal Bhatt, whose divorce decree was passed on 30.11.1991, which has attained finality sans any challenge qua the same and for want of any document to suggest otherwise.

6.1 As referred to herein above, the petitioner has filed the suit for restoration of possession of the suit property. However, a perusal of the record revealed nothing to show that the suit premises, which is belonging to late Vasantray Shantilal Bhatt, was in possession either of the present petitioner or of the respondent No. 1 herein. From further perusal of the record viz. copy of writings of Vasantray Shantilal Bhatt dated 06.03.2013 and 21.07.2013, power of attorney in favour of the present petitioner, affidavits of society residents in favour of the present petitioner etc., it is revealed that the petitioner was staying with Vasantray Shantilal Bhatt, however, there is nothing on record to show or suggest that the suit premises was ever in possession of the present petitioner. It is pertinent to note at this juncture that the petitioner herein has not claimed any title in the suit premises by way of filing the suit in question and has only prayed to restore the possession of the suit premises. On perusal of the order impugned herein, it is true that a caretaker, watchman or servant is not entitled for possession as of right in view of the decision of the Hon'ble Apex Court in Maria Margarida Sequeria Fernandes (supra) but, simultaneously, there is nothing on record to show that prima facie, the possession was with the appellant in the Misc. Civil Appeal No. 35 of 2017 before the learned District Judge (respondent No. 1 herein). Further,

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pursuant to the impugned order passed by the learned District Judge, prima facie it appears that a mistake has crept into by the learned District Judge by not observing the status of possession, which is a very significant and important issue for considering the appeal by him and therefore, the said order is required to be set aside.

6.2 Further, a bare perusal of order dated 05.11.2020 passed by this Court in the present writ petition, reveals that the petitioner had sought permission to join one Dhamshaprasad Devkaran Shukla as a party respondent No. 2 in this writ petition on the ground that he is occupying the premises in question and consequently, he was added as party respondent No. 2 in the present proceedings. The suit premises is stated to have been in possession of the respondent No. 2 herein, who, though duly served, has chosen not to appear before this Court for the reason best known to him.

6.3 Further, there is also nothing on record to show that the suit premises was ever in possession of the respondent No. 1 herein also, save and except the fact that she rushed to Vadodara from Mumbai and on 18.01.2016 given an application before the police.

6.4 At the cost of repetition, it is stated that the petitioner herein has filed the suit for restoration of possession of the suit property. Upon facts and circumstances of the case as well as the documents on record, in the considered opinion of this Court, the aspects of possession and ownership are the matters of trial and can only be decided accordingly, on adducing the evidence by both the sides and appreciation of evidence by the trial Court.

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However, as it prima facie appears that neither the petitioner nor the respondent No. 1 herein is in possession of the suit property and the respondent No. 2, who stated to be in possession of the suit property, has put in no appearance and the suit pending before the concerned Court below, ends of justice would meet if status quo is directed to be maintained by the parties till the suit is decided. In the facts and circumstances of the case, it would also be apt to direct the trial Court to expedite the suit.

7. In the backdrop as aforesaid, present petition succeeds and is allowed accordingly. The impugned order dated 28.08.2017, passed by the learned 3rd Additional District Judge, Vadodara in Civil Appeal No. 35 of 2017 is hereby set aside and the order dated 27.01.2017, passed below exh. 5 in Regular Civil Suit No. 121 of 2016 by the learned 14th Additional Senior Civil Judge, Vadodara by which, status quo qua suit property was directed to be maintained by the parties to the suit till the final disposal of the suit is hereby confirmed.

7.1 In the facts and circumstances of the case, the trial Court concerned is directed to expedite the suit and decide the same at the earliest possible, preferably within a period of 06 (six) months from the date of receipt of copy of this order, on its own merits, without being influenced by any order. The parties to the suit are directed to cooperate in the trial and shall not ask for unnecessary adjournments.

8. Rule is made absolute accordingly, with no order as to costs.

[ A. C. Joshi, J. ] hiren