Gujarat High Court
Heirs Of Decd. Nirmalaben Shivshankar ... vs Atulbhai Vaikunthrai Maheta on 8 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 7 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In
R/SECOND APPEAL NO. 7 of 2025
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HEIRS OF DECD. NIRMALABEN SHIVSHANKAR JOSHI & ORS.
Versus
ATULBHAI VAIKUNTHRAI MAHETA & ORS.
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Appearance:
NIMIT Y SHUKLA(8338) for the Appellant(s) No.
1,1.1,1.2,1.2.1,1.2.2,1.2.3,1.2.4,1.3,1.3.1,1.3.2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 08/01/2025
ORAL ORDER
1. The present Second Appeal has been filed challenging
the judgment and order dated 25.10.2024 passed by the
Principal District Judge, Bhavnagar in Regular Civil Appeal
No.185 of 2017 whereby the first Appellate Court confirmed
the judgment and decree dated 21.09.2017 passed by 2 nd
Additional Senior Civil Judge, Bhavnagar in Regular Civil
Suit No.724 of 1994. The appellants herein are the original
defendant.
2. The brief facts of the present case are that there were
two suits, Regular Civil Suit No.724 of 1994 and Regular
Civil Suit No.418 of 2001. The parties are referred to as the
appellants and respondents.
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3. The appellants had preferred Regular Civil Suit No.724
of 1994 for declaration and perpetual injunction interalia
contending therein that the appellants father served as priest
(Pujari) at Sri Viththaleshvar Mahadev Temple and the
predecessor of the appellants, late Shri Shivshankarbhai
Valjibhai Joshi was permitted to reside in the temple
premises by the respondents and he was paid Rs.100/- per
month out of which Rs.40/- was deducted as monthly rent of
the premises in dispute and essentially Regular Civil Suit
No.724 of 1994 was for a relief that the respondents be
restrained from taking over peaceful possession of the suit
premises and the appellants may not be dispossessed from
the suit premises without following due procedure of law.
4. The respondents had also filed Regular Civil Suit
No.418 of 2001 for declaration and permanent injunction
interalia praying that the appellants have illegally continued
with possession of the suit premises and as none of the legal
heirs of deceased Shri Shivshankarbhai Valjibhai Joshi are
performing seva puja, the appellants are required to vacate
the suit premises and hand over the suit premises to the
present respondents. It was also the case of the present
respondents, while filing Regular Civil Suit No.418 of 2001
that the appellants are not statutory tenant and that the
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deceased Shri Shivshankarbhai Valjibhai Joshi and his father
were allotted only one room of the suit premises to stay
only on humanitarian ground and for which no rent was
recovered from the deceased - Shri Shivshankarbhai
Valjibhai Joshi and his father and it has been averred that
as the appellants are in illegal occupation they may be
removed from the possession of the suit premises.
5. The learned Trial Court after the summons of the suit
were duly served to the defendant of their respective suits
consolidated both the suits and vide judgment and decree
dated 21.09.2017 dismissed, the Regular Civil Suit No.724 of
1994 filed by the present appellants which was filed on the
ground of restraining the respondents for evicting the
appellants from the suit premises and decreed the Regular
Civil Suit No.418 of 2001 filed by the present respondents
for possession of the premises and the present appellants
have been directed by the said judgment and decree to hand
over peaceful & vacate possession of the premises, thereafter,
the appellants filed Regular Civil Appeal No.185 of 2017
challenging the judgment and decree passed in Regular Civil
Suit No.724 of 1994 and after hearing the learned advocates
for both the parties, the learned Principal District Judge,
Bhavnagar rejected both the appeals and confirmed the
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judgment and decree passed by the learned 2nd Additional
Senior Civil Judge, Bhavnagar in Regular Civil Suit No.418
of 2001 and Regular Civil Suit No.724 of 1994. Hence, the
present appeal.
6. Heard learned advocate Mr. Vishal Patel appearing for
the appellants, he has mainly submitted that the Courts
below have dismissed both the suits as well as the appeals
and have not taken into consideration the oral evidence of
plaintiff witness No.2 and has not relied upon the evidence
of plaintiff witness No.2, who has stated that late Shri
Shivshankar Valjibhai Joshi informed him that Rs.40/- is
being paid as rent by Shri Shivshankarbhai Valjibhai Joshi
and that the appellants are residing in the premises and has
also argued that the appellant cannot be evicted by the
judgment and decree passed in Regular Civil Suit No.418 of
2001. It has also been argued that the Court could not
granted a decree of possession relying on the judgment
reported in AIR 2012 SC 1727 and that the trial Court and
appellate Court have not taken into consideration the
provisions of Bombay Rents, Hotel, and Lodging House Rates
Control Act, 1947 and has argued that as the appellants are
the heirs of the priest who was in possession of the
premises, the trial Court could not evict the appellants from
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the premises and that the trial Court could not have
dismissed the suit filed by the appellants for seeking a
restraining order against the respondents from dispossessing
the appellants from the suit premises.
7. Learned advocate Mr. Vishal Patel appearing for the
appellants, has mainly argued that the Court could not have
passed a judgment and decree in favour of the respondents
and allowed Regular Civil Suit No.418 of 2001, whereby the
present appellants are directed to be evicted from the
premises and that the trial Court could not have dismissed
the Regular Civil Suit No.724 of 1994 filed by the appellants
for relief of injunction restraining the respondents from
dispossessing the appellants from the suit premises and upon
above submissions, he submits to admit the Second Appeal.
8. Having heard learned advocate for the appellants. The
dispute in both the suits are as under:-
(i) Regular Civil Suit No.724/1994 - for a relief that the
respondents be restrained from dispossessing the plaintiff
from the premises.
(ii) Regular Civil Suit No.418/2001 - appellants are not the
statutory tenant and are in illegal occupation they may be
removed from the possession of the premises as the
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possession be handed over the peaceful possession of the
premises.
9. Before the trial Court the appellants have not produced
any documents to show that there was ever an agreement
whereby there was a relationship of landlord and tenant.
Moreover, the appellants have failed to prove any documents
which suggests that a rent was ever paid by his predecessor
and/or the appellants. It was the case of the appellants
before the trial Court in Regular Civil Suit No.724 of 1994
that they are statutory tenant after the death of their
predecessor, and therefore, they are entitled to be protected
under the provisions of Bombay Rents, Hotel, and Lodging
House Rates Control Act, 1947, and as the appellants are in
possession of the premises, and therefore, they may be
protected. To establish the said fact, there are no documents
produced by the appellants before the trial Court to show
that even the predecessor of the appellants was a statutory
tenant of the respondents, and therefore, the question of
appellants becoming statutory tenant of the suit premises
does not arise. Looking at the deposition of original plaintiff
No.3 which was recorded at Exhibit-106 wherein he had
admitted the fact, that he has no documentary evidence to
prove that the deceased Shri Shivshankarbhai Valjibhai Joshi,
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was the statutory tenant of the premises and he has also
admitted that, option was given by the respondent to the
legal heirs of deceased Shri Shivshankarbhai Valjibhai Joshi
to perform seva puja in Shri Viththaleshvar Mahadev Temple
but none of the legal heirs of deceased have opted for it.
Therefore, both the Courts have rightly held that it has been
clearly established that there is no document to show that
after the demise of deceased Shri Shivshankarbhai Valjibhai
Joshi, legal heirs of deceased continued to perform seva puja
in the premises and though the option was also given to the
appellants to give service as pujari in Shri Viththleshvar
Mahadev Temple but that option was not availed by the
appellants. Therefore, the respondents have proved before
the trial Court that the appellants have abandoned their
right to continue with the occupation of the premises which
was allotted to Shri Shivshankarbhai Valjibhai Joshi on
humanitarian ground.
10. The concurrent findings of the trial Court and the first
Appellate Court are on appreciation of evidence. There is no
dispute that the appellants have not proved as to having any
rent agreement, no proof of amount of rent paid by the
appellants to the respondents and/or proof of amount of rent
ever paid by the appellants or their predecessor to the
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respondents. There is also no documentary evidence proved
by the appellants that there was any ever relationship of
landlord and tenant between the appellants and respondents.
11. Moreover, from the oral evidence also, it can be
established that the appellants in their deposition have failed
to prove that even their predecessor was a statutory tenant
in the suit premises.
12. The facts remains that the appellants have not
produced any document to prove that on what basis they are
claiming to be the tenant of the premises.
13. Moreover, the owner of the premises who has given
the premises only on humanitarian ground to the predecessor
of the present appellants had to file a civil litigation to get
back the possession of the premises which was only given on
humanitarian ground.
14. The respondents have successfully proved that the
appellants were allowed to stay in the premises gratuitously
and law is very clear that even by long possession of year or
decades such person who is allowed to reside in the
premises would not acquire any right or interest in the
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premises.
15. Regular Civil Suit No.724 of 1994 has been filed by the
appellants for an order to restrain the respondents from
taking over peaceful possession of the premises and
restraining the respondents from dispossessing the appellants
from the premises without due process of law. The fact
remains that appellants did not have any proof of having
subsisting rent agreement, license agreement, lease
agreement and/or any right to occupy the premises.
16. The protection of the Court cannot be extended to a
person who does not have a subsisting rent agreement, lease
agreement, license agreement and irrespective of long
possession if a person is allowed to stay in the premises
gratuitously, the said person does not acquire title to the
property. Looking to the facts of the case it is proved by the
respondent that the suit property was given on humanitarian
ground to the predecessor of the appellants and that the
appellants have no right in the premises and after giving
proper finding the Regular Civil Suit No.724 of 1994 filed by
the appellants has been dismissed and the prayers sought for
possession in Regular Civil Suit No.418 of 2001 has been
allowed.
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17. The provisions of section 100 of the Code of Civil
Procedure relates to Second Appeal and sub section (3)
provides that in an appeal under this section memorandum
of appeal shall state precisely the substantial question of law
that is involved in the appeal and sub section (4) provides
that when the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
that question, and therefore, a Second Appeal is admissible
provided substantial questions of law are involved and/or
from the finding and reasoning of the judgment and decree
of the Court below, there are any substantial question of law
that arises, therefore, Second Appeal is required to be
admitted only if the same involves substantial question of
law. In the present case, the proposed substantial question of
law which are formulated in the memorandum of appeal are
in fact not substantial question of law, but the same are
question of fact and the power that can be exercised under
Section 100 of the Code of Civil Procedure is confirmed to
substantial question of law. In the present case, there are
no substantial question of law which can be raised, so as to
enable this Court to admit the appeal. It is pertinent to note
that the scope of Second Appeal under the provisions of
section 100 of the Code of Civil Procedure are limited and
the same can only be if it involves at the stage of judgment
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substantial question of law.
18. Moreover, even in case of concurrent findings of fact
are involved in the judgments the same can be interfered if
the said findings are perverse but the said perversity should
be apparent on the basis of the record.
19. In the present case, when it has been proved by the
respondents that the possession of the premises was given to
the predecessor of the appellants only on humanitarian
ground and the fact that even the appellants have not
proved that they or their predecessor were statutory tenant
of the premises, the said conclusion which has been reached
by both the trial Court and the appellate Court cannot be
interfered as the judgment and decree of the Court below
are not perverse, arbitrary so as to warrant interference.
Moreover, as per the well settled decisions of this Court as
well as the Hon'ble Apex Court, the Court ordinary will not
interfere with concurrent findings of fact except in
exceptional cases where the findings are such that it shocks
the conscious of the Court or may disrespect to the forms of
legal process or some violation or some principle of natural
justice or otherwise substantial and great injustice has been
done.
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20. It is required to be noted that in Second Appeal, the
scope is very limited and the Court cannot re-appreciate the
evidence. In the case of Navaneethammal v. Arjuna Chetty
reported in 1996 (6) SCC 177, the Hon'ble Apex Court has
observed as under:-
"11. This Court, time without number, pointed out that
interference with the concurrent findings of the courts
below by the High Court under Section 100 CPC must be
avoided unless warranted by compelling reasons. In any
case, the High Court is not expected to reappreciate the
evidence just to replace the findings of the lower courts."
21. In the case of Jaichand (Dead) through Lrs and Other
v. Sahnulal and Another reported in 2024 SCC OnLine SC
3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the
High Court cannot interfere with the findings of fact
arrived at by the first Appellate Court which is the final
Court of facts except in such cases where such findings
were erroneous being contrary to the mandatory provisions
of law, or its settled position on the basis of the
pronouncement made by the Apex Court or based upon
inadmissible evidence or without evidence."
22. The appellate Court has relied on the judgment passed
in the case of Maria Margarida Sequeria Fernandes and
Others v. Erasmo Jack de Sequeria (Dead) in Appeal
No.2968 of 2012 (Arising out of SLP (C) No.15382 of 2009)
decided on 21.03.2012, the Hon'ble Apex Court has observed
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as under:-
"101. Principles of law which emerge in this case are
crystallized as under:-
1. No one acquires title to the property if he or she was
allowed to stay in the premises gratuitously. Even by
long possession of years or decades such person wuld not
acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire
interest in the property irrespective of his long
possession. The caretaker or servant has to give
possession forthwith on demand.
3. The Courts are not justified in protecting the
possession of a caretaker, servant or any person who was
allowed to live in the premises for some time either as a
friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or
extended to the person who has valid, subsisting rent
agreement, lease agreement or license agreement in his
favour.
5. The caretaker or agent holds property of the principal
only on behalf of the principal. He acquires no right or
interest whatsoever for himself in such property
irrespective of his long stay or possession."
23. Considering the submissions made and after examining
the findings of both the Courts below on the issue raised in
the suit and upon examining of the judgment and orders of
both the Courts below, this Court is of the considered
opinion that the learned advocate for the appellants is
unable to point out any infirmity, perversity or in-
proprietary in the concurrent finds of the fact recorded by
both the Courts below, not only that, the learned advocate
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for the appellant is unable to show that the findings
recorded by the learned Courts are without any evidence or
there is any illegality in the findings.
24. Under the circumstances, this Second Appeal is devoid
of any substantial question of law. Both the learned Trial
Court and first appellate Court have rightly decided the issue
between the parties in the right perspective and as stated
above no substantial question of law arises in the present
appeal. The appellants have failed to prove their case before
the learned trial Court as well as before the first appellate
Court. This Court does not find any substance in the present
Second Appeal as the same is devoid of any merit both on
facts and law and the same is dismissed at admission stage.
25. In view of the above, Civil Application stands rejected.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
