Gujarat High Court

Thakkar Prakash Kuvarji Vadera vs Thakkar Kishor Kuvarji Vadera on 8 February, 2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 593 of 2023
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                                    In
                     R/SECOND APPEAL NO. 593 of 2023

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT                            Sd/-

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1    Whether Reporters of Local Papers may be allowed                         Yes
     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 ?

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                      THAKKAR PRAKASH KUVARJI VADERA
                                   Versus
                       THAKKAR KISHOR KUVARJI VADERA
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Appearance:
MR. MAULIK M SONI(7249) for the Appellant(s) No. 1
for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 08/02/2024

                             ORAL JUDGMENT

1. The present appeal arises from the impugned

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judgment and decree dated 04.08.2023 passed by the learned

th Additional District Judge, Kachchh - Bhuj Regular Civil

Appeal No. 6 of 2022, whereby the learned appellate Court

below has allowed the appeal by quashing and setting aside

the judgment and decree dated 31.12.2021 passed by the

learned Principal Civil Judge, Naliya in Regular Civil Suit

No. 4 of 2012, allowing the suit in favour of the plaintiff.

2. Heard learned advocate for the appellant.

3.1 Learned advocate Mr. Maulik M. Soni for the

appellant has submitted that the learned appellate Court

below has not properly interpreted the documents produced

by the appellant. He has submitted that the reasoning given

by the learned appellate Court below is completely irrelevant,

illogical and against the evidence as well as provisions of

law. He has submitted that just key is with the respondent

after the death of father which is not given by the appellant

and therefore, entire case of the appellant is not believable

by the learned appellate Court below. He has further

submitted that the learned appellate Court below has failed

in properly re-appreciating the entire evidence and important

aspects that the appellant is the owner of the property in

question and against his wish or consent, the defendant is in

possession of the property.

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3.2 He has also submitted that the learned appellate

Court has failed to consider the important aspect that the

necessity of formulation of points for determination by the

learned appellate Court below cannot be considered lightly

and brushed aside as benefit of technical plea cannot be

granted. In fact, formulation of points for determination has

to be such that it should cover all important issues in

dispute. Therefore, such formulation of points for

determination cannot be vague. He has submitted that this

appeal may be admitted.

4.1 I have heard learned advocate for the appellant. I

have considered the documents annexed with this appeal. I

have perused the impugned judgment and decree passed by

the learned Courts below.

4.2 From record, the following undisputed facts are

emerged :

 This is a dispute between two real brothers.

 The dispute is regarding Shop, being Panchayat Shop

No.3/2/90 situated at Village : Naliya, District : Kachchh.

 The said shop was purchased by the elder brother viz.,

Thakkar Prakashbhai Kuvarji Vadera on 22.01.1992.

       He was residing at Mumbai.





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       He has given the shop in question on rent to his

younger     brother   viz.,   Thakkar     Kishor     Kuvarji       Vadera,         in

presence of his father, on rent of Rs.300/- per month, which

was directly transferred to Dena Bank Account, Naliya of the

elder brother by the younger brother or some time paid in

cash.

 Thus, the possession of the shop in question is with the

younger brother since the year 1993.

4.3.1 As averred, in the year 2012, when the elder

brother visited village : Naliya, he found that his younger

brother was in illegal possession of the shop in question and

therefore, he has filed a suit being Regular Civil Suit No.4 of

2012 against the younger brother before the learned trial

Court for eviction and possession.

4.3.2 The suit was decree in favour of the plaintiff -

elder brother. Against which, the defendant - younger brother

has filed the appeal before the learned appellate Court below,

which is allowed by quashing and setting aside the judgment

and decree of the learned trial Court.

4.3.3 It is this second appeal which is considered by

this Court in view of above undisputed facts as well as

contradictory findings by the learned Courts below.

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5.1 The dispute before the learned trial Court was

with regard to the eviction and possession. The plaintiff has

mainly raised contention that the defendant has broken the

lock of the suit property and has occupied the same and

when the plaintiff requested him to vacate the same, the

defendant has refused. The learned trail Court has framed

the following issues (Exh.34 - para : 5 of the judgment) for

its determination.

(i) Whether the plaintiff proves that the

suit property is in the occupation and

possession of the plaintiff by way of

ownership?

(ii) Whether the plaintiff proves that

the defendant has illegally dispossessed the

plaintiff from the suit property on 01.01.2012 ?

(iii) Whether the defendant proves that he

is in possession of the suit property as tenant

since long ?

5.2 After hearing the parties and after taking into

consideration the evidence - documentary as well as oral i.e.

Exhs. 55, 73, 64 to 66, 79, 86, 122, 125, 89 to 114, the

learned trial Court has allowed the suit and thereby directed

the defendant to hand over the vacant and peaceful

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possession of the suit property to the plaintiff within one

month from the date of judgment i.e. 31.12.2021.

5.3.1 While allowing the suit, the learned trial Court

has taken into consideration Exh.89 - Rent Agreement which

was executed by and between the parties at the relevant

point of time and has observed that the suit shop was

handed over to the defendant for use on monthly rent of

Rs.300/-, but it cannot be said to be tenancy but a license

for using the suit shop for monthly compensation, and that

the learned trial Court has not accepted the applicability of

Rent Act, and that the bank slips produced at Exh.97 would

not construe to mean that the same was paid as a rent, and

that the possession of the defendant is there as can be seen

from Exh.98 and Exh.99 that he was carrying on business,

however that does not show and mean that he was a tenant

under the Rent Act, and that the defendant can be said to

be a licensee under Section 52 of the Easements Act and

thereby decreed the suit in favour of the plaintiff.

5.3.2 It is required to be noted that the learned trial

Court has not given any finding regarding the main

contention of the plaintiff that the defendant has broken the

lock and occupied the suit property.

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5.4 The said judgment and decree of the learned trial

Court is challenged by the defendant before the learned

appellate Court below by filing an appeal being Regular Civil

Appeal No. 6 of 2022. The learned appellate Court below has

framed the following points for determination (Exh.14), which

is mentioned in paragraph - 9 of the judgment.

(i) Whether the appellant is able to show

that order and decree of the trial Court

passed in Regular Civil Suit No.4 of 2012

dated 31.12.2021 is wrong, illegal and perverse

in the eyes of law ?

(ii) Whether the appellant is able to show

that the trial Court has not evaluated oral or

documentary evidence as per law ?

(iii) Whether the trial Court has made any

mistake in interpretation of the provisions of

law ?

(iv) Is there any mistake in the finding

given by the trial Court on the issues framed

by it ?

(v) Whether the original suit was barred by

any provisions of any law ?

5.5 After hearing the parties and after appreciating /

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re-appreciating the evidence - documentary as well as oral

and after perusing the judgment and decree passed by the

learned trial Court, the appellate Court below has allowed

the appeal by quashing and setting aside the judgment and

decree passed by the learned trial Court.

5.6.1 While allowing the appeal, the learned appellate

Court below has evaluated various evidence on record, more

particularly Exh.55 and that the key of the shop was with

the defendant and there was no incident of breaking the lock

by the defendant. The possession of the shop in question was

with the father & brother and after the demise of the father,

the same was with the defendant. Therefore, the contentions

regarding breaking of lock and illegal tress-pass by the

defendant are disproved.

5.6.2 The learned appellate Court below has observed

that the payment of rent for the year 1993 to 1998-99 is an

admitted position, and that the final decision on each issue

as narrated in the order of the learned trial Court is

contrary to its own observation, and that the theory of illegal

tress-pass by the defendant is also disproved as the suit is

filed for the tress-pass and the plaintiff is not aware from

the date on which the defendant made tress-pass in the suit

property, and that the theory of breaking lock is disproved as

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it is an admitted fact by the original plaintiff that the

possession was before their father and their father gave the

key, whereas the learned trial Court has not believed the

possession of the defendant as licensee and declared that the

the defendant is responsible to vacate the possession on the

notice of one month, which does not match with the facts of

tress-pass as averred by the plaintiff in the suit.

5.7 Thus, from the above facts / undisputed facts and

findings of the learned Courts below, it transpires that the

learned trial Court has committed an error, so also an error

of law while allowing the suit, whereas the learned appellate

Court below has rightly considered the points framed by it

and evaluated / re-appreciated the evidence in detail. This

Court finds that the learned appellate Court below has not

committed any error while passing the impugned judgment in

favour of the original defendant. There is no illegality,

perversity or impropriety in the impugned judgment passed

by the learned appellate Court below. Therefore, the appellant

Court has rightly passed the impugned order.

5.8 Considering the impugned judgment and

observations made by the learned lower appellate court, as

mentioned hereinabove, this Court is of the opinion that the

learned lower appellate Court has given cogent, convincing,

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just and proper reasons to allow the appeal, which are in

accordance with law and in consonance with the material

available on the record and after properly appreciating the

documentary as well as oral evidence produced on the record.

5.9 At this stage, it would be fruitful to refer to the

provisions of Section 100 of the Code of Civil Procedure,

1908, which reads as under:

"[100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

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(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

5.10 It is relevant to refer to the judgment of the

Hon'ble Apex Court in the case of Gurbachan Singh (Dead)

Through Lrs Gurcharan Singh (Dead) Through Lrs and Others., reported in 2023 SCC Online SC 875, more

particularly paragraphs 7, 14 and 15 thereof, which read as

under :

"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree

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has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section

100. In Nazir Mohamed v. J. Kamala (2- Judge Bench), it was observed:--

"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd.

[Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para

21)

"21. The phrase "substantial question of law", as occurring in the amended Section

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100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--

technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance"

as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance

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but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314], AIR p. 1318, para 5)

'5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case

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it would not be a substantial question of law.'

28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)

14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court.

However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:--

"(i) the courts below have ignored material

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evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously;

or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

15. A Bench of three learned Judges, recently in Balasubramanian v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from material irregularity" the court will be justified in interfering with such findings."

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5.11 In view of the above discussion and the judgment

cited hereinabove, when the learned lower appellate court has

not ignored the material evidence and not drawn wrong

inferences from the material available on record, and has

rightly come to the conclusion and properly appreciated the

evidence by framing points of determination under Order XLI

Rule 31 of the Code, this Court does not find any reason to

interfere with the same by framing substantial questions of

law as suggested by the learned advocate for the appellant.