Hajaraben Abbasbhai Patel vs Yunusbhai Abdulhaq Patel on 4 December, 2025

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                              C/CRA/690/2025                                       ORDER DATED: 04/12/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/CIVIL REVISION APPLICATION NO. 690 of 2025
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                                                   HAJARABEN ABBASBHAI PATEL
                                                             Versus
                                                   YUNUSBHAI ABDULHAQ PATEL
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                       Appearance:
                       MR RITURAJ M MEENA(3224) for the Applicant(s) No. 1
                       NIYATI D CHAUHAN(9082) for the Applicant(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                             Date : 04/12/2025

                                                              ORAL ORDER

1. Present CRA filed u/s 115 of the Code of Civil Procedure, 1908 is directed against the judgment and order dated 30.10.2025 passed by the learned Small Causes Court, Ahmedabad, whereby the learned Small Causes Court directed the petitioner to handover peaceful and vacant possession of the suit premises as mentioned in para 13 of the application within 30 days from the date of the order, failing which, possession warrant u/s 43 of the Presidency Small Cause Court Act, 1882 (in short "the Act") was ordered to be issued against the petitioner herein and the same was to be implemented by the Bailiff of the Court.

2. The factual aspects of the case are that original applicant Yunusbhai filed an application u/s 41 of the Act seeking issuance of a possession warrant against the petitioner herein for getting vacant and peaceful possession of the suit property. The original applicant also prayed for yearly rack rent of Rs.36,000/- from the opponent and further

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prayed for permanent injunction in regards to the suit properties, which is a small room situated at ground floor at Jamalpur ward No.1 bearing Sheet No.91, City Survey No.2627 admeasuring 42.64.26 sq mtr equivalent to 51 sq yd having Muni. Ses. No.1844 and 1844/1 (in short "suit property"). The case of the original applicant was that the suit property has been purchased by his mother namely Aminaben through registered sale deed No.5510 on 6.4.1987 and therefore, she was the owner of the suit property. She died on 11.10.2007, as a legal heir and as a son, the original applicant filed application u/s 41 of the Act on the ground that the petitioner herein is the sister of the mother of the original applicant (Masi) and since there exists family relation between the parties, she has been given the suit property on permissive possession, as earlier she was residing at Danilimda in one small room and since she was facing trouble to live peacefully in the earlier premises, deceased Aminaben

- mother of the original applicant had given the suit property to the petitioner herein before 30-32 years without charging any rent for consideration and therefore, the original applicant claimed vacant and peaceful possession of the suit property by removing the permission to use the suit property, issued notice on 1.3.2023.

2.1 The written statement was filed by the petitioner herein stating that the application u/s 41 of the Act is not maintainable. The petitioner herein had given pagdi of Rs.17,000/- before 35 years to deceased Aminaben and had paid rent of Rs.125/- to one Daudbhai Patel till 2014. thereafter, although the petitioner sent rent by money order,

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but, it was not accepted. In nutshell, it is contended that the present petitioner is the tenant of the suit property and thus, proceedings u/s 41 of the Act is not maintainable. To evict the present petitioner, the original applicant was required to file HRP suit since the present petitioner is the tenant.

2.2 The learned Court below framed the issue at Exh.21 permitted both the parties to lead evidence and ultimately, the learned trial Court vide judgment and order dated 3.10.2025 directed the petitioner herein to handover peaceful and vacant possession of the suit property within 30 days from the date of order, failing which, directed to issue possession warrant u/s 33 of the Act.

2.3 Being aggrieved by the aforesaid judgment, present petitioner has filed revision before this Court.

3. Learned advocate Mr. Meena for the petitioner seeking admission of the present petition, would submit that the defendant has led evidence of two independent witnesses, namely, Mr. Sajid Abbasbhai Patel at Exh.61 and Mr. Shaikh Sadiq Mhd. Safi at Exh.62 to prove that the the petitioner herein is a tenant. However, the learned trial Court erroneously, not believed that the petitioner is a tenant. He would further submit that the impugned judgment suffers from a jurisdictional error, as the learned trial Court was not holding the jurisdiction u/s 41 of the Act to pass order of issuing a possession warrant against the tenant and therefore, the revision deserves consideration. He would further submit that the original applicant is only a co-owner and has no

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independent right to file PSRP application without taking consent of other co-owners. He would further submit that there is no documentary evidence has been produced by both the sides to establish status of landlord and tenant.

3.1 Upon above submissions, learned advocate Mr. Meena prays the Court to allow this petition.

4. At the outset, let refer para 4.3 to 4.6 of the judgment under challenge as under:-

"4.3) Further, looking to the cross examination of the Opponent at Exh.60, she has stated that the facts of her affidavit of examination in chief has been prepared as per the instruction of her son and also stated that she is illiterate. It is admitted by her that in para No.8 of her affidavit, she has stated that at the time of let out the premise on rent, Rs.70,000/ has been given as deposit. She further stated that in her W/s. she has stated the same as Rs.17,000/ is true. Further, it is clearly admitted by the opponent in her cross examination that she has no any evidence to prove that at that time she has deposited Rs.70,000/ to the mother of the applicant. It is also stated by her that the premises has been purchased by Aminaben in the year of 1987 and the premises is consisted in three floors, from which she is residing at the ground floor. It is also admitted by her that Aminaben has looked after her and also helped by giving some amount /aprx. 45,000/ Rs. for the education expenses of her daughters. It is very clearly admitted by the opponent that there is no any written evidence to show that she is the tenant of the disputed premises. It is also admitted by her that there is no any evidence to show the facts that till death of applicant's mother and after her death to Mr. Daudbhai, she has paid the rent @ Rs.125/ for the premises. It is also admirer that no any complaint has been filed against them for non issuance

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of the rent receipts. It is also admitted that the applicant has issued a notice to her and also asked her to vacate the premises and then after the applicant has filed this application. As such, to prove the facts and defence raised by the opponent that she is the tenant of the disputed premises since last 30-35 years and paid the rent @ Rs.125/p.m., are mere statements without any supporting evidence and therefore, the defence and disputed of the opponent are not acceptable and not proved.

(4.4)..Not only that but, the opponent, in her cross examination also stated that one duplex is there in Danilimda area where her son is residing and also admitted that one another premises at Bavaji ni pole is also there which is their ownership. The facts of report of the Court Commissioner are also admitted by her. Considering all the facts of the cross examination of the opponent, it is very clear that the disputed premises has been purchased b the dcd. mother of the applicant and after her death the applicant she is in possession of the become the owner of the premises and his ded. other was the sister of the opponent and due to relation and as the opponent was in need of the premises for her residence, handed over the possession of the premises as a permissive user of the same. As there is no any evidence is there to prove the defence that the opponent is the tenant of the premises, the same is also not proved by the opponent.

(4.5) Further, the opponent has examined two(2) witness at Exh.61 and 62, namely Mr. Sajid Abbasbhai Patel and Shaikh Mohmmad respectively. Both the witnesses have stated in their deposition that the disputed premises has been taken on rent from the dcd. mother of the applicant by the opponent by depositing Rs.17,000/. In their cross examination, it is stated by the witnesses that Aminaben i.e. mother of the applicant was died in 2007 and she has bought the premises in the year of 1987-88 and the said premises has been given to opponent for her residence. It is admitted that to prove the facts of deposited amount and monthly rent of the premises, they

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have no any documentary evidence. It is also admitted that there is no any evidence in regard of payment of the rent of the said premises and it is also admitted that in his presence, the Opponent has not paid any rent amount to the applicant. Looking all the facts of the cross examination of both the witnesses, it also transpires that the disputes raised by the opponent in regard of her tenancy rights over the premises, are not proved as there is no any documentary evidence is there. The documents produced by the opponent vide Exh.44 to 55 are not helpful to her. As the opponent has not produced any evidence to prove the facts that the disputed premises has been taken on monthly rent @ Rs.125/ from the dcd. mother of the applicant and has paid the rent till 2014, the relation of landlord and tenant is not proved as alleged by her. Further, the documents in regard of Money Order for Rs.5000/+5000/+3500/, the same of dtd.11/03/2023, not a single evidence to prove the facts that the opponent has paid the rent of the premises to ded. mother of the applicant and after her death, she has paid the same to one Daudbhai. As such, by submitting such kind of Postal slips of Money Order, the relation of parties as a landlord and tenant is not proved. Further, the opponent has not filed any complaint u/s. 26 of the Rent Act in regard of non issuance of rent receipts till date. Not only that but under which circumstances, she has paid the rent to one Daudbhai is also not explained. Further, no any suit under the provision of Rent Act also for protection of her possession has been filed till date by the opponent and as the opponent has failed to prove her status or right as a tenant of the said premises, the evidence produced by the applicant and the facts of the cross examination of the opponent and witnesses are sufficient to held out that the disputed premises has been given for residence to the opponent as a permissive user only. As the opponent has also occupying another premises and her son and daughter are also residing at those premises, the applicant has asked her to vacate the premises and for the same the applicant has-issued a notice (Exh.42) to opponent on 11/03/2023 and determined the permission and asked the vacant possession of the same, all the ingredients of Section 41

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of the PSCC Act are proved by the applicant. And under such facts and circumstances, the as the applicant has proved the facts of the issues No.1 and 2, thé same are answered in Affirmative.

As the opponent has failed to prove the relation as a tenant of the premises and also failed to prove the facts of payment of such rent to the applicant, the issue issuance of rent receipts is also not proved and hence, the answers of issues No.3 and 4 are in Negative.

(4.6) As per the case of the applicant, he is the Owner of the premises and the opponent is the permissive user of the same, this application is required to be proved under and as per the inquiry prescribed for Section 41 of the Act.

Permissive user:

"A permissive user is not a user as of right but it is an enjoyment in such a manner as not to involve the admission of obstructive right in the owner of the servient tenement. Whether a user was as of right or not has therefore to be decided on the basis of the surrounding circumstances and the facts established in the case. Giving permission to reside in a given area is what the term 'permissive occupation' refers to. The word permissive implies tolerance."

In the case on hand, as discussed above, the premises has been given under the relationship of family member as a sister of the dcd. mother of the applicant and the same is in possession of the present opponent. It can be said that the occupation of the disputed premises of the present opponent is more permissive user. As per the above mentioned discussion and looking to the provision of Section-41 of P.S.C.C Act, which is as under:-

"When any person has had possession of any immovable property situate within the local limits of the Small Cause Court's jurisdiction and of which the annual value at a rack-rent does not exceed two thousand rupees, as the tenant, or by permission, or another person, or of some person through whom such other person claim, and such tenancy or permission has determined or been

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withdrawn, and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the applicant) may apply to the Small Cause Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property".

From the bare reading of the said provisions, it appears that if any person has had possession of any immovable property situated within the local limits of the Small Causes Court jurisdiction and of which annual value of at a rank rate does not exceed Rs. Two lacs, as the tenant or as a premise user and if such tenant or occupier refuses to deliver up such property in compliance with a request made to him by such person, such other person (the Applicant) may apply to the Small Cause Court for a summons against the occupant calling upon him to show cause as to why he should not be complied to deliver up the property. So, in this case as discussed herein above, the opponent resides in the application premises as a permissive user and not as a tenant, so the application is maintainable Under Section- 41 of P.S.C.C Act. Moreover, looking to the reasons for relief claimed in this present application and the documentary evidence produced by the applicant in support of same, this application is required to be allowed under the provision of Section-41 of the P.S.C.C Act as the no any evidence has been challenged by the opponent."

5. It is trite to observe that the petitioner herein who claimed that she is tenant of the suit property failed to produce any documentary evidence which may establish landlord and tenant relationship either between the original applicant and the petitioner herein or between deceased Aminaben and the petitioner herein. In absence of any documentary evidence like rent note, rent receipt or other

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documents containing particulars of paying rent to the landlord, the petitioner herein failed to sustain that she was a tenant of the suit property.

6. The deposition of the present petitioner is inconsistent. In her deposition, she stated that she has paid Rs.70,000/- as pagdi. However, in the pleadings, she averred that Rs.17,000/- was paid towards pagdi. She admitted that deceased Aminaben had looked after her and has also helped her by giving some amount approx. Rs.45,000/- for education expenses of her daughters. Thus, plea o the petitioner that she had paid pagdi be it Rs.17,000/- or Rs.70,000/- is smothered as its own cause. The petitioner, who received financial assistance from Aminaben, how could have paid any amount towards pagdi. She has also admitted that there is no documentary evidence to show that she is the tenant of the suit property. She has further admitted that there is no documentary evidence to show that firstly to Aminaben and thereafter to Mr. Daudbhai, she paid rent of Rs.125/- per month. She has also admitted that she has other residential premises in Danilimda.

7. What further could be noticed that the petitioner herein tried to pay rent of Rs.13,500/- through a money order, but it has been refused by the original applicant. All the aforestated aspects suggest that the petitioner herein was a permissive user. The petitioner herein is the real sister of deceased Aminaben and she has been given the suit property on permissive use, which can be inferred in absence of any other status or relationship being established by documentary

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evidence. The petitioner - defendant, who claims that she is the tenant, failed to establish by leading cogent and convincing evidence. The oral deposition of Mr. Sajid Abbasbhai Patel at Exh.61 and Mr. Shaikh Sadiq Mhd. Safi at Exh.62 cannot, by themselves ,create any relationship of landlord and tenant between the original applicant and the petitioner herein.

8. In the aforesaid circumstances, according to this Court, the learned trial Court has committed no error much less error of understanding the provisions of law. This Court in a revisional jurisdiction cannot re-appreciate the evidence of the case. Thus, no case is made out to admit the revision.

9. For the foregoing reasons, I see no reason to admit or allow present CRA. Accordingly, present CRA stands dismissed at admission stage.

(J. C. DOSHI,J) SHEKHAR P. BARVE