Gujarat High Court
Rukshmaniben Subhashbhai ... vs Lh Of Decd Savji Hirabhai on 10 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/SA/220/2022 ORDER DATED: 10/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 220 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/SECOND APPEAL NO. 220 of 2022
With
R/CROSS OBJECTION NO. 257 of 2022
In
R/SECOND APPEAL NO. 220 of 2022
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RUKSHMANIBEN SUBHASHBHAI VITHALANI(DECEASED)
Versus
LH OF DECD SAVJI HIRABHAI
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Appearance:
DECEASED LITIGANT for the Appellant(s) No. 1
MR RAJ PAHWA for M/S. THAKKAR AND PAHWA ADVOCATES(1357) for
the Appellant(s) No. 2
for the Respondent(s) No. 1,4,5
MR.VINOD C THAKER(6678) for the Respondent(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7,2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/01/2024
ORAL ORDER
ORDER IN SECOND APPEAL
1. Heard learned Advocate for the appellant/s, Mr. Raj
Pahwa, who submitted that the plaintiff's Suit came
to be dismissed by the learned Principal Civil Judge,
Dwarka in Regular Civil Suit No.84 of 1993.
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2. The Suit was filed by the landlord against the tenant
for declaration and injunction who had made a
prayer pleading as the owner of the immovable
property that the defendant as tenant in the property
are having possession of one room and a shop having
door on the public way with the right of use of
latrine bathroom situated in the courtyard with a
monthly rent of Rs.30/-. It was averred therein that
the defendants had tried to make encroachment in
the other property of the plaintiffs and had not
allowed the plaintiffs to do construction in the other
portion and on the terrace of the property.
3. Learned Advocate Mr. Raj Pahwa submitted that the
issue of ownership of the disputed property has been
answered in the affirmative in favour of the plaintiffs,
and also the issue that the defendants as a tenant are
having possession of the shop having door on the
public way with the right of use of latrine bathroom
situated in the courtyard with a monthly rent of
Rs.30/-. The learned trial Court has not considered
the issues of encroachment made by the defendants
or any plea of obstruction for construction on the
upper side of the property and therefore, has not
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granted the relief and thus has answered in the
negative for the issue regarding the entitlement to get
declaration and permanent injunction as prayed for.
4. Learned Advocate Mr. Raj Pahwa further submitted
that the learned Court has not granted the prayer
made by the plaintiffs and that the defendants have
proved the burden of showing possession of the
property of more than the area as stated by the
plaintiffs; the defendants have proved that the
plaintiffs are not entitled for construction of the
property admeasuring 50 x 50 feet in the disputed
property.
5. Referring to the observations made in Paragraph 13
of the judgment passed by the learned trial Court, it
is submitted that the learned Court has observed
about the settled principle of law. That the
construction is on the ground floor and in exclusive
possession of the tenant, then the property has been
given on rent with the right on roof/terrace, which
cannot be separated. It is further submitted that the
learned trial Court has observed that the property
cannot be enjoyed without roof and the defendants
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plea that the plaintiffs have no right on terrace as
there is no documentary evidence regarding the
possession of the terrace has been declined.
Therefore, under the provisions of Section 13A of the
Gujarat Rents, Hotels & Lodging House Rates Control
Act, 1947 (hereinafter referred to in short as 'the
Rent Act'), it is submitted by learned Advocate Mr.
Raj Pahwa that the defendants have the right to
restrain the landlord to make any improvement or
construct additional structure as it would cause undue
hardship to the tenant.
6. Countering the above arguments, learned Advocate
Mr. Vinod C. Thakker has submitted that the learned
Apellate Court has set aside the order of the learned
trial Court and has partly allowed the Appeal of the
landlord and very specifically in the operative order
has bifurcated the possession of tenant. In view of
the Court Commission Report at Exhibit 191 and as
specified, the defendants have no right to restrain the
landlord from making construction or for entering in
person or through his Agent, servant and therefore,
the order of the learned Appellate Court had
permitted the landlord to enter upon the rest of the
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property. Referring to the construction permission
dated 15.03.1995, it is submitted that the Section 13A
of the Rent Act permits the landlord to construct
additional structure and when the landlord proposes
to make an improvement or construct any additional
structure on any building or a part of which has been
allotted to the tenant, and if an application is made
to the Court, then the Court may permit the landlord
to do such a job.
7. In the instances of the case, it is submitted by
learned Advocate Mr. Vinod C. Thakker that the law
is rather clear and when the learned Appellate Court
has bifurcated the property and in view of the
panchnama, the tenant would have no right to
obstruct the landlord from making further
construction and in accordance to the permission
granted by the local body, submitted that there is no
substantial question of law involved, more so when
Section 29(2) of the Rent Act shall not permit a
Second Appeal.
8. Having heard learned Advocates for the respective
parties and on perusal of the records of the case, it is
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clear that a challenge has been given by the
defendants to the order of the learned Appellate
Court. The learned Trial Court has erred in
observing that the tenant would have the right on
roof / terrace and that cannot be separated. The
learned trial Court has fallen in error to consider the
roof as well as the terrace to be the same. The
tenant is entitled for roof but not the terrace, where
the landlord would have the right to make additional
structure when he proposes to do so, where in this
case, even plans have been approved by the
competent authority and the tenant cannot refuse the
landlord to make or construct any such additional
structure. The relief which has been granted by the
learned Appellate Court would protect the right of
the tenants, in view of the provision of Section 13A
of the Rent Act.
9. In view of the aforesaid discussion, this Court does
not find any substantial question of law to be
determined in the present Second Appeal and hence,
the same stands dismissed.
Sd/-
(GITA GOPI, J)
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C/SA/220/2022 ORDER DATED: 10/01/2024
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ORDER IN CIVIL APPLICATION (FOR STAY) &
ORDER IN CROSS OBJECTION
In view of the aforesaid order passed in the main
matter, the above matters do not survive and stand
disposed of accordingly.
Sd/-
(GITA GOPI, J)
CAROLINE
