Devchand Lalchand Agraval Since ... vs Ramchand Muljibhai Kachhva ...
2022 Latest Caselaw 9357 Guj

    C/CRA/62/2004                                 CAV JUDGMENT DATED: 21/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CIVIL REVISION APPLICATION NO. 62 of 2004


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.S. SUPEHIA                    Sd/-

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

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

2      To be referred to the Reporter or not ?                           YES

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

4      Whether this case involves a substantial question                   No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== DEVCHAND LALCHAND AGRAVAL SINCE DECD. THRO HIS HEIRS Versus RAMCHAND MULJIBHAI KACHHVA DECD.THRO HEIRS & 1 other(s) ========================================================== Appearance:

MR ASHISH H SHAH(2142) for the Applicant(s) No. 1,1.1,1.2,1.3,1.4 MR MEHUL H RATHOD(701) for the Opponent(s) No. 1.1,1.2,1.3 MR.KISHORE PRAJAPATI(6305) for the Opponent(s) No. 2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

Date : 21/10/2022

CAV JUDGMENT

(1) The present 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

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"Rent Act") against the judgment and order dated 16.10.2003 passed by Court of 2 nd Joint District Judge, Banaskantha at Deesa in Regular Civil Appeal No.54 of 1995 confirming the judgment and order dated 29.11.1995 passed by Civil Judge, (J.D.), Deesa in Regular Civil Suit No.73 of 1984.

(2) In the judgment, the parties will be referred as per their original status.

(3) The plaintiff instituted Regular Civil Suit No.73 of 1984 against the defendant nos.1 and 2 for possession of the suit premises and for recovery of Rs.1,038/- towards the arrears of rent and mesne profits on the grounds of - (i) arrears of rent for 06 (six) months; (ii) sub-letting and (iii) reasonable and bona fide requirement.

3.1) The Trial Court, after examining the evidence - both oral as well as documentary, dismissed Regular Civil Suit No.73 of 1984 by judgment, order and decree dated dated 29.11.1995. The same was challenged by the plaintiff by filing Regular Civil Appeal No.54 of 1995, which was dismissed by the judgment and order dated 16.10.2003.

(4) Mr.Shah, learned advocate appearing for the plaintiff has submitted that both the Courts below have fallen in error in appreciating the evidence on record and ignoring the same. It is submitted that the plaintiff is entitled for the

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possession of the suit property in view of the provisions of Section 13(1)(e) and 13(1)(i) of the Rent Act.

(5) Mr.Shah, learned advocate for the plaintiff has submitted that the findings of both the Courts below with regard to the provision of Section 13(1)(e) of the Rent Act, which pertain to claim of possession of the suit property on the ground of sub-letting are against the law.

5.1) It is submitted that the evidence of panchnama below Exh.102 with regard to the suit property and the photographs below Exh.105 to Exh.108 have been discarded by the Trial Court, merely by observing that the same would not be enough to prove that the defendant no.1 has sublet the defendant no.2 in the open plot of land.

5.2) It is submitted that the Trial Court has fallen in error by observing that since the plaintiff is affluent person and the defendant no.1 is an ordinary person hence, the defendant no.1 would not have enough courage to allow the defendant no.2 to enter in the plot of land. It is submitted that the panchnama is proved by one of the panchas, who has been examined, however, the evidence in this regard is totally ignored.

5.3) Learned advocate Mr.Shah has further pointed out the observations made by the Appellate Court in this regard

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and the issue of sub-letting is not believed merely on the reason that the plaintiff was unable to prove that the defendant no.1 has sub-let the plot of land to defendant no.2 on some valuable consideration. It is submitted that the plaintiff is only required to prove that the suit property is being used by someone else other than to whom it was given on rent and the factum of valuable consideration is of no consequences. In support of his submissions, learned advocate Mr.Shah has placed reliance on the judgment of this Court in the case of Jivanbhai Trikambhai vs. Chaturbhai Fakirbhai, 2013 JX (Guj) 771 and in the case of Bharat Sales Ltd. vs. Life Insurance Corporation of India, (1998) 3 S.C.C. 1.

5.4) There is another issue raised by learned advocate Mr.Shah with regard to the provisions of Section 13(1)(i) of the Rent Act, which pertains to the possession of the open plot of land. Learned advocate Mr.Shah has submitted that in fact, the plaintiff needed the aforesaid open plot of land for the purpose of construction and accordingly, he had obtained the development permission below Exh.73, the plan was also approved below Exh.74 and the details of the bank were also provided at Exh.75 and Exh.76. Thus, he has submitted that all the requirements i.e. plans, finance or means of construction and the concerned development permission was already obtained by the plaintiff for the construction of house and hence, the plaintiff is entitled to recover the possession of the plot of

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land in view of provisions of Section 13(1)(i) of the Rent Act.

5.5) Learned advocate Mr.Shah has submitted that though the aforesaid evidence was on record, the same is absolutely ignored by the Trial Court and on the contrary, the finding is specified that the provisions of Section 13 of the Rent Act will have no consequences in view of provisions of Section 12 of the Rent Act. It is submitted that the possession is refused on the ground that since the tenant is ready and willing to pay the standard rent, the plaintiff is not entitled to recover the possession for the reason that the suit land is reasonably or bona fidely required by the landlord. In this regard, the learned advocate has placed reliance on the judgments of this Court in the case of Pathan Bajitkhan Kayamkhan vs. Shah Maneklal Harilal, 1971 G.L.R. 421 and in the case of Santokben wd/o. Harji Raichand vs. Chandulal Fulchand, 2000 (3) G.L.H. (U.J.)

2. Thus, it is submitted that the Appellate Court, while confirming the aforesaid judgment of the Trial Court, has also fallen in error.

5.6) Learned advocate Mr.Shah has submitted that the Appellate Court and the Trial Court have not appreciated the contentions of the plaintiff raised under the provisions of Section 13(1)(i) of the Rent Act for the reason that there is no bona fide and reasonable requirements of the plot of land, which is contrary to the provisions of Section 13(2)(3)

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of the Rent Act. Thus, it is submitted that both the Courts below have committed an error of law and hence, the impugned orders may be set aside.

(6) In response to the aforesaid submissions, learned advocate Mr.Rathod appearing for the defendant no.1 has submitted that this Court, while exercising its powers under the provisions of Section 29(2) of the Rent Act may not set aside the concurrent findings of both the Courts below by reappreciating the evidence.

6.1) Learned advocate Mr.Rathod has submitted that for the first time a contention is raised before this Court with regard to the provisions of Section 13(1)(e) of the Rent Act. It is submitted that the plaintiff did not take any contention that defendant no.1 had sub-let the property to the defendant no.2. It is submitted that for the first time before this Court, the evidence has been pointed out that the defendant no.1 has sub-let the property to the defendant no.2 and in fact, it is contended for the first time that the property (Lorry of the defendant no.2 on which he is preparing Tea etc.) falls in the suit plot, which is given on rent to the defendant no.1 by the plaintiff. It is submitted that the panchnama and photographs do not indicate that the lorry of defendant no.2 falls in the plot belonging to the plaintiff. Thus, it is submitted that the Court may not reappreciate the evidence in this regard since the panchnama does not in any manner reveal the

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sub-letting of plot of land by defendant nos.1 and 2.

(7) With regard to submissions of bona fide requirement by the plaintiff under the provisions of Section 13(1)(i) of the Rent Act, learned advocate Mr.Mehta submitted that both the Courts have appropriately and concurrently held that the plot of land of which the plaintiff is seeking possession, is not bona fidely required by him, as he is a wealthy person. Thus, it is submitted that this Court may not reappreciate the evidence and may not disturb the concurrent findings of both the Courts blow.

CONCLUSION

(8) It is no more res integra that while exercising the revisional powers under Section 29(2) of the Rent Act, the High Court can only correct a substantial error of law, which goes to the root of the decision and cannot substitute its own finding on reappreciation of evidence, even though different view is possible (Ref: Patel Valmik Himatlal & Ors. vs. Patel Mohanlal Muljibhai (Dead) through Lrs., 1998 (2) G.L.H. 736). Thus, this Court, while exercising its jurisdictional power, has to examine that whether both the Courts below have fallen in error in law and has ignored the evidence, which has been brought on record. The issues, which fall for consideration in present revision application - (1) recovery of possession of the suit property i.e. open plot of land by the plaintiff under the provisions of Section 13(e)(i) and (2) Under section 13 (1)(i)

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of the Rent Act.

(9) So far as the first issue is concerned, the provision of section 13(1)(e) reads as under:-

"13 (1) Notwithstanding anything contained in this Act [but subject to the provisions of section 15], a landlord shall be entitled to recover possession of any premises if the Court is satisfied-

(e) that the tenant has, since the coming into operation of this Act 79[unlaw-fully sub-let] the whole or part of the premises or assigned or transferred in any other manner his interest therein ;"

Section 13(1)(e) pertains to sub-letting of the suit premises by the original tenant. The plaintiff has instituted the suit first on the ground of sub-letting and it is contended that the defendant no.1 has sub-let the property to defendant no.2 and has allowed him to operate a Lorry of Tea & Coffee over the plot of the land of the plaintiff and has also installed chairs and benches for sitting of the customers. Accordingly, an issue was framed by the Trial Court, which is Issue No.3. The said Issue No.3 is answered by the Trial Court in Paragraph No.6(A). The Trial Court has observed that the plaintiff has miserably failed to establish that the defendant no.1 has sub-let the property to defendant no.2. It is noticed by me that the defendant no.2 has only filed the written statement in the suit and has chosen not to enter into the witness box. It appears that the Trial Court had called for recording of the panchnama with regard to the actual position of the suit property and accordingly, the panchnama was prepared below Exh.102. I have perused the panchnama, wherein it is specifically opined by the

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panchas that in the plot of land apart from the cars, which have been kept by the defendant no.1 for his purpose of garage, a lorry of defendant no.2 is also found along with the benches, drums etc. The photographs of the plot is also produced below Exh.105 and Exh.108. The panchnama is proved by one of the panchas, who is examined as PW-2, Kapoorji Talavji. However, the Trial Court has absolutely ignored the deposition of panch, who has carried out the panchnama as well as the photographs and very cursorily it is held that the panchnama and photographs are not enough to prove that the defendant no.1 has allowed the defendant no.2 to operate on the plot of land. The other factor which has weighed upon the Trial Curt is the financial status of the plaintiff. It is held that the defendant no.1 would not have the courage to allow the defendant no.2 to allow him to function on the plot of land since the plaintiff is a wealthy and influential person. The status of the plaintiff has nothing to do with the position of the law and the appreciation of the evidence. The Trial Court has misdirected itself on this aspect. Both the Courts below have ignored this vital aspect and have committed an error in ignoring the vital peace of evidence. The Appellate Court, while examining the said issue has observed that sub-letting is not proved since the plaintiff has not adduced any evidence with regard to the valuable consideration being paid by the respondent no.2 to respondent no.1.

(10) At this stage, it would be opposite to refer to the

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observations made by this Court in the case of Jivanbhai Trikambhai (supra). Paragraph No.8 of the said judgment reads as under:-

"8. What was exceedingly emphasized by learned advocate for the applicant that there was no evidence or proof of existence of valuable consideration passing from the alleged sub-tenant to the tenant. This ingredient though important need not be available expressively from the evidence. It is an inferential ingredient not to be required to be invariably shown to be positively present, more particularly when the facts of a case establish exclusive transfer and parting with possession in sub-tenant's favour. In Tohleram (supra) it was held that once the partying with exclusive possession was proved, the burden would shift on the tenant to show that it was without valuable consideration. The exclusive partying of possession becomes a dominant test which would make Section 13(1)(e) apply and it would be possible to hold that an act of subletting has taken place. As far as the requirement of valuable consideration is concerned, it being a secretive consideration, a direct or positive proof in that regard would be difficult to obtain. The exclusiveness of possession parted with by the tenant in favour of another one would suffice without proof of valuable consideration passing therefor. The valuable consideration in such circumstances has to be presumed ."

(11) Similarly, in the case of Bharat Sales Ltd. (supra), the Apex Court, in Paragraph No.4, has held as under:-

"4. Sub-tenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement of understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overtacts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and

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the sub- tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly , is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to the paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet."

Both the aforesaid judgments declare that the evidence with regard to the payment of valuable consideration of sub-letting would be difficult for the landlord to prove by direct evidence. It is observed that the monetary consideration of such consideration by the tenant for payment of rent though is an essential element of lease or sub-lease, whether it is paid in cash or in kind or may have been faith or promise to be paid cannot be established by way of direct evidence since such payment of rent on monetary consideration may have been made secretly and the law does not require such payment to be proved by the affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial. Thus, the observations of the Trial Court, as confirmed by the Appellate Court, runs contrary to the settled proposition of law and the evidence. As noticed hereinabove, the evidence of panchnama and the photographs could not have been ignored by the Trial Court as well as Appellate Court.

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(12) So far the issue with regard to claim of possession of the suit property under the provisions of Section 13(1)(i) of the Rent Act is concerned, the provision reads as under:-

"13 (1) Notwithstanding anything contained in this Act [but subject to the provisions of section 15], a landlord shall be entitled to recover possession of any premises if the Court is satisfied-

(i) that where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new [***] building; or"

(13) Thus, the provision of Section 13(1)(i) of the Rent Act specifically provides that the possession of the suit property can be claimed by the landlord, if such land is required by the person for erection of a new building. It would also be apposite to refer to the provisions of Section 13(3) of the Rent Act, which reads as under:-

"13(3) The Court may pass the decree on the ground specified in clause (h) or (i) of subsection (1) only in respect of a part of the premises which in its opinion it is necessary to vacate for carrying out the work or repairs or erection ."

(14) The statute provides that the landlord can recover possession under clause (i) of sub-section (1) of section 13 of the Rent Act with respect of land which is bona fidely required for erection of new building and the court can accordingly pass a decree. The plaintiff has specifically asserted before the Trial Court that he required the suit- plot for the purpose of construction of the house, for which he has obtained necessary permission from the Corporation. Necessary documents in this regard are produced at Exh.73 i.e. the permission from Deesa

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Nagarpalika. I have perused the said permission, which is given by the Deesa Nagarpalika to the applicant to construct a new house. Exh.74 i.e the plan of the house, which the plaintiff had produced before the Nagarpalika, and Exh.75 is the bank details i.e. pass-book of Union Bank of India.

(15) All the aforesaid documents i.e. Exh.73, Exh.74 and Exh.75, which are produced by the plaintiff in support of his claim that he bona fidely requires the aforesaid open plot of land for the purpose of construction of the house. This evidence was required to be examined in light of the aforesaid provision by the Trial Court, but such evidence is absolutely ignored by both the Courts below. The Trial Court as well as Appellate Court have discarded the bona fide requirement of the plaintiff on the ground that since he is an affluent person and looking to the financial capacity, he would not be bona fidely requiring such land and hence, it held that the decree of eviction cannot be passed against the defendant no.1. The requirement of law for obtaining recovery of possession of the suit land as per Section 13(1)(i) of the Rent Act is only that the plaintiff for getting possession under the said clause has to prove that he requires such land is reasonably and bona fidely for erection and it is not necessary to prove that he wants such building for occupying it for his own use.

(16) In case of Pathan Bajitkhan Kayamkha (supra), while

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examining the aforesaid provisions, has held thus:-

"13. In Clause (g) of Section 13(1) of the Act, the words used are "the premises". The word "premises" would include open land. It is, therefore, evident that if the premises consist of land and they are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held...they are entitled to recover possession of such premises from the tenant. The words used are "for occupation by himself or by any person for whose benefit the premises are held." No restricted meaning can be given to the word "occupation". One may occupy such land for his own self by using the land in that very condition or may occupy it by constructing a building thereon and occupy that building. Clause (g) of Section 13(1) of the Act contemplates recovery of possession by the landlord when the premises are reasonably and bonafide required by him for occupation by himself or by any person for whose benefit the premises are held. This ground will be available in both the cases, viz., if the premises consist of open land or even if the premises consist of a building. There is one additional ground under Clause

(i) of Section 13(i) of the Act which would be available to the landlord in case the premises are "land". For getting possession under that clause, he has to prove that such land is reasonably and bona fide required by the landlord for erection of a new building. It is not necessary for him to prove that he wants a new building to be enacted for occupying by himself or by any person for whose benefit the premises are held. The Legislature has probably mentioned this ground to encourage construction of new buildings on open lands for solving the problem of acute shortage of buildings. There would be different considerations in each case, i.e. one considering the case under Clause (g) and the other under Clause (i). So far as Clause (i) is concerned, the tenant will be able to press into service the provisions of Sub-section (3) of Section 13 of the Act. So far as Clause (g) is concerned, the Court has to consider the provisions of Sub-section (2) of Section 13 of the Act. So far as Clause (g) is concerned, the expression "landlord" shall not include "rent farmer" or "rent collector". Furthermore, in view of the explanation for the purposes of Clause (g) of Sub-section (1), a person would not be deemed to be a landlord unless he has acquired his interest in the premises at a date prior to the beginning of the tenancy or the first day of January, 1954, whichever is later, or if the interest has devolved on him by inheritance or succession, his predecessor-in-title had acquired the interest at a date prior to the beginning of the tenancy or the first day of January, 1964, whichever is later. There is no such restricted meaning given to the word "landlord" when one has to consider the case of a landlord claiming possession of the leased premises under Clause (i) of Section 13(i) of the Act. "

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(17) The Coordinate Bench of this Court has held that for seeking possession of the land in question under Clause (i) of Section 13(i) of the Rent Act, which would be available to the landlord in case the premises are "land". For getting possession under that clause, he has to prove that such land is reasonably and bona fidely required by the landlord for erection of a new building. It is not necessary for him to prove that he wants a new building to be erected for occupying by himself or by any person for whose benefit the premises are held. Thus, the Trial Court as well as the Appellate Court have completely ignored the aforesaid evidence, while rejecting the suit of the plaintiff seeking recovery of possession of the open plot of the land.

(18) This Court does not agree with the submissions advanced by learned advocate Mr.Rathod appearing for the defendant no.1 that the contention with regard to the provisions of Section 13(1)(e) of the Rent Act has been taken for the first time before this Court. In fact, the plaintiff has raised such contention and has also produced evidence in this regard, however the Trial Court as well as Appellate Court have fallen in error and have misdirected itself by ignoring such evidence. As per the settled proposition of law, while exercising revisional powers under Section 29(2) of the Rent Act, the High Court, though cannot re-appreciate the evidence, however, can examine whether there has been substantial error of law or the Trial Court has fallen in error by not appreciating or considering the evidence, which was brought on record. It

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cannot be said that both the Courts below i.e. Trial Court or the Appellate Court have not fallen in error in re- appreciating the entire evidence. In fact, this is the case where both the Courts have totally ignored the settled proposition of law and also have ignored the evidence, which has surfaced on record coupled with the fact that the Trial Court as well as Appellate Court has misread the provisions of law i.e. provisions of Section 13(1)(e) and 13(1)(i) of the Rent Act. Hence, this Court is left with no other option except to set aside both the orders passed by the Trial Court as well as Appellate Court and the matter is required to be remanded back to the Trial Court to decide afresh.

(19) Accordingly the impugned orders are quashed and set aside. Regular Civil Suit No.73 of 1984 is ordered to be restored to its original file. The Trial Court, after giving an opportunity of hearing to both the respective parties, shall decide the suit within a period of 06 (six) months.

(20) The present revision application is allowed to the aforesaid extent. RULE is made absolute accordingly. Record and proceedings to be sent back to the concerned Trial Court. There shall be no orders as to costs.

Sd/-

(A. S. SUPEHIA, J) GIRISH