Gujarat High Court
Lh Of Decd. Dayalsinh Amarsinh Jariya vs Lh Of Decd. Bhagvatiben Fulsinh Jariya on 4 April, 2025
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C/CRA/448/2023 ORDER DATED: 04/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 448 of 2023
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LH OF DECD. DAYALSINH AMARSINH JARIYA & ORS.
Versus
LH OF DECD. BHAGVATIBEN FULSINH JARIYA & ORS.
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Appearance:
MR DHRUV K DAVE(6928) for the Applicant(s) No. 1,1.1,1.2
NOTICE SERVED BY DS for the Opponent(s) No. 1.1,1.2,1.3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 04/04/2025
ORAL ORDER
1. Heard learned advocate Mr. Dhruv K Dave for the
applicants. Though notice has been served none appeared on
behalf of respondents.
2. The present Civil Revision Application has been filed
under Section 29 of the Gujarat Rents, Hotel and Lodging
House Rates Control Act, 1947, being aggrieved by the
judgment and decree passed in Regular Civil Suit No. 30 of
2010 dated 28.12.2018 passed by the learned Judge, Small
Causes Court, Rajkot as well as the judgment and decree
dated 31.07.2023 in Regular Civil Appeal No. 12 of 2019
passed by the learned 10th Addl. District Judge, Rajkot,
confirmed the judgment rendered in Regular Civil Suit No. 30
of 2010, hence the applicants herein has filed the present
Revision Application.
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3. For the sake of convenience, the parties are referred as
per their original status i.e. the applicants are referred as
original defendants and the respondents herein are referred
as original plaintiffs of the said suit before the trial Court.
4. It is the case of the plaintiff that after the death of the
original tenant, the legal heirs of defendant no.1 and legal
heirs of defendant no.1 and 2, were using the suit property.
The plaintiff has filed the suit for eviction as the defendants
constructed a door on the backside of rented premises by
removing a window on the wall without taking permission of
the plaintiffs and the same was against the provisions of the
Rent Act and on the said suit was also filed that the
defendants have breached the terms and conditions of the
Rent Agreement. Therefore, the plaintiffs filed suit for eviction
of tenants. In the said suit, the plaintiffs also stated that
defendant no.1 has shifted to a property more particularly, 4
Lodeshwar Co.Op Housing Society situated at Ram Mandi
Road, Gondal Road, Rajkot and the defendant no.2 also
acquired flat in RUDA Scheme (Rajkot Urban Development
Authority) and also obtained loan from the Nagrik Bank to
purchase the said flat in the name of his wife Rasilaben.
Therefore, the plaintiffs sought for eviction of the suit
premises.
5. The Trial Court has framed the following issues vide
Exh. 14 in Regular Civil Suit No. 30 of 2019:
(1) Whether the plaintiff proves that the defendants have
without their consent or knowledge, made constructions
of permanent nature in the suit premises, which cannot
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be removed without causing serious damages to the
property?
1-A Whether the plaintiffs prove that defendants avail
suitable alternative accommodation ?
1-B Who will suffer greater hardship, if decree of
eviction is passed?
(2) Whether the plaintiffs are entitled to get the vacant
possession of the suit premises?
(3) What Order and decree?
6. The plaintiff examined himself vide Exh. 46 and the
witnesses of the plaintiffs were examined vide Exh. 62, 71 and
73. The defendant no.2 examined himself vide Exh. 79 and
after considering the documentary evidence and oral evidence
and the findings of all the issues, the trial Court allowed the
suit and directed the defendants to vacate and handover the
peaceful possession of rented premises to the plaintiffs.
7. Being aggrieved by the said order, the defendants filed
Regular Civil Appeal No. 12 of 2019 and after re-appreciating
the evidence, the First Appellate Court, rejected the Civil
Appeal and the judgment and decree dated 28.12.2018 passed
by the Small Causes Court, Rajkot in Regular Civil Suit No. 30
of 2010 was confirmed.
8. Learned advocate for the defendant has mainly
contended that the defendants have not made any
construction in the suit premises but the door was existing
from the very beginning and have not removed any window.
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8.1 Learned advocate for the defendant has also argued
that with respect to the permanent alteration made in the said
premises and the said issue has already been decided in
Regular Civil Suit No. 63 of 1994.
8.2 Therefore, it has been argued that the appeal of the
defendant ought to have been allowed by the First Appellate
Court. The learned advocate for the defendant has also
argued that it cannot be said that defendants have acquired
suitable accommodation for themselves. The learned advocate
for the defendant urged that there are other tenants residing
at the disputed property and except the impugned civil suit,
no suit has been filed against other tenants and therefore also
the plaintiff was not entitled for the possession of property
under the provisions of Section 13 of the Bombay Rent Act.
9. Having heard learned advocate for the defendant the
and pursuant to the deposition of the plaintiff witnesses
Fulchandbhai Maganbhai Zariya who has been examined vide
Exh. 62 and in his deposition the said witnesses has stated
that he was the President of Lodeshwar Co.Op Housing
Society since last 2 years and that plot No. 140 and 139 are
allotted to Babubai Dayalsingh and Naran Dayalsingh. The
said Babubhai Dayalsingh is defendant no.1 in the said suit
and it has been deposed by the said witness that the
measurement of the suit property is around 120 square
meters and that the construction was made in the said plot
and defendant no.1 is living at the said premises.
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9.1 It has been also stated that in the said deposition of
the witness that another plot no. 18 in Lodeshwar Society was
also purchased by defendant no.1 and he has made
construction and is living in the said premises and on the said
premises, on the ground floor portion a factory is situated.
The list of members of Lodeshwar Society has been produced
vide Exh. 63 and in the said document at Sr. No. 139, the
name of defendant no.1 is mentioned as the allottee of plot no.
140. Moreover, the allotment of the said plot is produced at
Exh 65 and 66.
9.2 Moreover the plaintiff has also examined witness
Mr. Rashmikantbhai Bhagwajibhai Joshi vide Exh.71 and he
has deposed that he has been serving at Rajkot Nagarik Bank
since 30 years and Rasilaben Rajeshbhai Jariya had filed a
loan application on 17.11.2014 regarding the property of
RUDA i.e. block No. I/301 and the loan was applied and along
with the said application. The Tripartite Agreement was also
produced vide Exh.72 to show that the defendants are holding
their ownership in the property in Rajkot City.
9.3 Moreover, from the evidence also it can be established
that the defendant has erected permanent construction in the
rented premises. Considering the factual aspects, the
plaintiffs have been able to prove that both the defendants
have acquired a suitable accommodation and the said
accommodation is quite sufficient in comparison to the rented
premises.
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10. Therefore, to seek eviction from the tenant on the
ground of Section 13(1)(L) the plaintiff landlord has to first
prove that after coming into force of the Rent Act, the
defendant has either built, acquired vacant possession of or
been allotted a suitable residence. Therefore, provisions of
Section 13(1)(L) will apply if the defendant has acquired
suitable residence after coming into force of the Rent Act. The
said Act came into force on 13.02.1948. Therefore, if there is
any acquisition that has been made subsequent to the said
date i.e. 13.02.1948, it can clearly be said that the defendant
has acquired suitable residence. The words used in Section
13(1)(L) of the Rent Act are not to be read restrictively to the
title but it must be interpreted in wide sense that the tenant
has roof over his head.
10.1 Therefore, the plaintiff has proved the fact that the
defendants have acquired accommodation and therefore, non-
suitablility of the property was to be proved by the tenant
himself. Therefore, once it is established on record that the
defendant has acquired vacant possession of suitable
possession he is bound to vacate the possession. The law is
very clear that once the tenant acquired property, landlord is
entitled for eviction on the ground that the defendant has
suitable alternative accommodation. The revisional
jurisdiction can only be exercised with the limited purpose
with a view to satisfy itself that the decision under challenge
before it is according to law and High Court cannot substitute
its own findings on a question of fact for the findings recorded
by the courts below on reappraisal of evidence. In my opinion,
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the evidence is sufficient to establish that he has acquired
suitable residential accommodation.
11. Therefore, on the basis of overall analysis of the material
on record, on the basis of conclusion that has been referred to
by the Court below, the Court is of the opinion that there is no
material irregularity nor any perversity reflecting which
would permit this Court to exercise revisional jurisdiction. The
entire reasoning of the Court below are based upon clear
analysis of the testimony of the witnesses for either side and
also in consonance with documentary material and according
to this Court it cannot be said that there is any perversity in
the said order. Moreover, while deciding the Revision
Application by the High Court in revisional jurisdiction under
this Act is confined to find out that findings of fact recorded
by the courts below is according to law and does not suffer
from any abuse of law. The findings recorded by the Court
below if perverse or has been arrived at without consideration
of material evidence or such finding is based on no evidence
or misreading of evidence or grossly erroneous that, if allowed
to stand, would result in gross miscarriage of justice. The
same is open for correction because it is not treated as finding
according to Law and in that event the High Court, in exercise
of its revisional jurisdiction under the Bombay Rent Act, is
entitled to set aside the impugned order as being not legal or
proper.
12. The High Court can not interfere with the finding of
facts recorded by the first Appellate Court. The consideration
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or examination of the evidence by the High Court in revisional
jurisdiction under this Act is confined to find out that finding
recorded by the courts below is according to Law and does
not suffer from any error of Law and only if the finding of
facts recorded by the courts below, is perverse or has been
arrived at without consideration of the material evidence or
that such finding is based on no evidence, or misreading of
the evidence, or is grossly erroneous that, if allow to stand, it
would result in gross miscarriage of justice and the same is
open to correction as the same is not treated as findings
according to Law and in the present case, the finding of facts
recorded by the trial Court and the appellate Court is neither
perverse nor arrived at without consideration of the material
evidence. In the present case, in revisional jurisdiction, the
High Court can not exercise its powers as an appellate power
to re-appreciate or reassess the evidence for coming to a
different finding of facts. Revisional jurisdiction is not and can
not be equated with the powers of reconsideration of all
questions of fact as a court of first appeal.
13. The findings recorded by both the courts below are
based on critical appreciation of the evidence led by the
parties on record and does not suffer any error or material
irregularities. The Court below has rightly come to the
conclusion that the tenant has acquired suitable alternative
accommodation and, therefore, there was no error committed
by the courts below which requires any correction at the
hands of the High Court in exercise of revisional jurisdiction.
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14. Under the revisional jurisdiction, the High Court is
entitled to satisfy itself as to the correctness or legality or
propriety of any decision or order impugned before it as
indicated above. In view of the aforesaid facts and proposition
of law and in view of the concurrent findings of fact by both
the Courts below, since no case is made out to call for any
interference in the judgment and order passed by the
appellate Court upholding the judgment and decree passed by
the trial Court, the present Revision Application requires to be
dismissed and it is dismissed accordingly. Notice is
discharged.
(SANJEEV J.THAKER,J)
Radhika
