Gujarat High Court
Decd.Babulal Naginlal Tamakuwala ... vs Chandulal Chimanlal Marfatiya on 17 July, 2025
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C/SA/147/2002 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 147 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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DECD.BABULAL NAGINLAL TAMAKUWALA THROUGH HEIRS & L.R. &
ORS.
Versus
CHANDULAL CHIMANLAL MARFATIYA & ORS.
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Appearance:
MR ADIL R MIRZA(2488) for the Appellant(s) No. 2,3,4,5,6
MR NK MAJMUDAR(430) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No.
10,11.1,12,2,3,4,5,6.1,6.2,6.3,6.4,6.5,7,8,9
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/07/2025
ORAL JUDGMENT
1. The present Second Appeal has been filed under Section 100
of the Code of Civil Procedure, 1908 ('CPC', for short) challenging
the judgment and order dated 18.06.2002, passed by the 2 nd Joint
District Judge, Bharuch, in Regular Civil Appeal No.58 of 1994,
whereby the said appeal was dismissed confirming the judgment and
decree passed by the trial Court in Regular Civil Suit No.144 of
1988.
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2. For the sake of convenience, the parties are referred to as their
original status referred in the suit.
FACTS :
3.1 The brief facts arising in the present appeal are that the
plaintiff had filed Regular Civil Suit No.144 of 1988, it was the case
of the plaintiff before the trial Court that, defendant nos.12 to 24 are
family members of the plaintiff and defendant nos.1 to 8 are heirs of
deceased Naginlal Lalbhai to whom the suit premises were
mortgaged by original plaintiff, while defendant nos.1, 9 to 11 are
heirs from the second marriage of Ranchhodbhai. It was the case of
the plaintiff that suit premises were owned by parents of the plaintiff
who died long back and parents of plaintiff had given suit premises
to Naginlal Lalbhai and Mathurdas Ranchhodbhai, by way of
registered mortgage-deed on 16.11.1958 for an amount of Rs.5,999/-
and the said mortgage deed was registered in the office of Sub-
Registrar, Ankleshwar vide Entry No.423 and pursuant to the said
mortgage-deed, mortgagee had paid Rs.5,999/- to the mortgagor and
the mortgagor has to repay the said amount in two installments i.e.
Rs.2,000/- on or before Kartak Vad One of Samvat 2018 and the rest
of the amount of Rs.3999/-, was to be paid at the time of redemption
of mortgage and after payment of Rs.3999/- the mortgagee has to
redeem the mortgage and handover the suit premises of
the mortgagor i.e. present plaintiff. In view of the said
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fact, notice was issued by the plaintiff to defendant nos.1 to 11 on
19.04.1988 to accept the remaining amount of Rs.3,999/-.
3.2 The defendant appeared in the said suit. The trial Court framed
issues vide Exh.29 and the plaintiff deposed before the trial Court
vide Exh.68, Defendant no.3 deposed vide Exh.94, defendant
deposed at Exh.108 and after considering the oral and documentary
evidence and after giving findings on all the issues, trial Court
allowed the said suit and aggrieved by the said order, the defendants
filed an appeal before the first Appellate Court. The first Appellate
Court, after re-appreciating evidence, dismissed the appeal and
confirmed the judgment and order passed by the trial Court. Hence,
the present Second Appeal.
SUBMISSION OF DEFENDANT - APPELLANT :
4.1 Learned advocate has mainly argued that there is no dispute
that mortgage deed was executed on 16.11.1958. There is also no
dispute that an amount of Rs.2,000/- was paid and a notice was
issued on 19.04.1988 by the plaintiff for redemption of mortgage
and for handing over possession but entire case of the defendant is
that even before mortgage-deed was executed, defendant was tenant
in the suit property and tenancy right were always there even when
the mortgage-deed was executed on 16.11.1958 and the trial Court
could not have directed the defendant to handover possession of the
suit property to the plaintiff, in view of the fact that defendant's
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defense was that the defendant is tenant in the suit property and by
virtue of the order that has been passed by the trial Court and
confirmed by the first appellate Court, tenancy right of the
defendants are affected.
4.2 Moreover, it has been argued by learned advocate for the
defendant that the trial Court and appellate Court have not properly
appreciated the documentary evidence produced before the trial
Court to substantiate claim of the defendant that defendant was
tenant in the suit property. Learned advocate for the defendant has
mainly tried to canvass his argument in view of the fact that trial
Court has not considered Exh.86 i.e. the rent receipt issued by the
brother of the plaintiff and only as the address of the suit property is
not mentioned, the trial Court has not considered the said receipt.
Moreover, it has also been argued that trial Court has also not taken
into consideration the fact that in the mortgage-deed there is specific
averment that defendant shall not be liable to pay the rent of the suit
premises. Therefore, it is evident that the defendant was tenant in the
property and, therefore, the said fact has been stated in the mortgage-
deed. It is, therefore, argued that present Second Appeal is required
to be allowed on the substantial questions of law as suggested in the
memo of appeal, which reads as under:
"(i) Whether the Ld.Lower Appellate Judge and the
Ld.Trial Judge have substantially erred in law in holding
that the suit is not time barred ?
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(ii) Whether the Ld. Lower Appellate Judge and the
Ld.Trial Judge have substantially erred in law in holding
that the appellants - defendants were not tenants of the
mrotgaged suit property on or prior to the mortgage upon
erroneous appreciation of documentary evidence in law ?
(iii) Whether the Ld. Lower Appellate Judge and the
Ld.Trial Judge have substantially erred in law in holding
that the appellants - tenants would not get protection and
rights under the Bombay Rent Control Act, 1947 and the
rights of tenants would come to an end with the redemption
of mortgage ?
(iv) Whether the Ld. Lower Appellate Judge and the
Ld.Trial Judge have substantially erred in law in making the
impugned preliminary decree and confirming the same
without joining the heirs and legal representatives of the
deceased - defendant No.2 Chimanlal Nagindas
Tamakuwala during the pendency of the suit ?
SUBMISSION OF PLAINTIFF - RESPONDENT :
5.1 Learned advocate for the plaintiff has mainly argued that there
are concurrent findings of the trial Court and the first appellate
Court. Moreover, the fact remains that the plaintiff has admitted
mortgage deed and the only contention that has been raised by the
defendant is that the defendant is tenant in the property and that
tenancy rights will be affected and that the trial Court and the
appellate Court have not properly appreciated the said fact.
5.2 Learned advocate for the plaintiff has also argued that no
documentary evidence to support the said contention of the
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defendant that the defendant was tenant in the property has been
produced on record. Moreover, the fact that the suit is within the
period of limitation can be clearly established in view of the fact that
mortgage deed itself speaks that the amount of Rs.3,999/- has to be
paid at the time of redemption of mortgage as plaintiff has issued
notice dated 19.04.1988 and even while giving reply to the said
notice, the defendant has not denied the existence of the mortgage
deed and the averments in the said mortgage deed. Moreover, it has
been argued that the defendant is claiming to be the tenant of the
property, has not raised any claim under the Rent Act before the
Rent Court and therefore also said contention could not have been
raised and decided by Civil Court. In view of the said facts, it is
argued that no substantial questions are involved in the present
Second Appeal and, therefore, it is required to be dismissed.
ANALYSIS :
6. Having heard learned advocates for the parties and having
considered the judgment and decree passed by the trial Court and the
first appellate Court, fact remains that there is no dispute that
registered mortgage deed has been executed between the father of
plaintiff and father of defendant no.1 to 8 and 9 to 11. There is also
no dispute about the amount received under the said mortgage deed,
there is also no dispute that the amount of Rs.2,000/- has been paid,
there is also no dispute that notice was issued on 19.04.1988 for
redemption of mortgage. The only defense that has taken by the
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defendant is that before execution of the mortgage deed, defendant
was tenant in the suit property. The defendant has tried to rely upon
certain document to establish the said fact that defendant has
occupied the suit premises even before mortgage deed was executed.
The defendant has mainly tried to establish the fact that defendant is
tenant in the property by relying on Exh.86 i.e. rent receipt.
However, the fact remains that the said receipt, does not give
description of the suit property and, therefore, the trial Court and the
appellate Court have rightly not considered the said document to
prove that the defendant is tenant in the suit property. Moreover, the
deed of mortgage produced at Exh.72, clearly states that possession
of the property is given to the father of the defendant no.1 to 8
viz.Naginlal and if the said fact is believed that the possession of the
property was given to Naginlal on the date of deed of mortgage, then
the question that Naginlal was occupying the premises on rent does
not survive. Moreover, even if the oral evidence of the defendant
produced at Exh.94 and 108 are perused, there is nothing on record
to show that the defendants are tenants of the suit property and that
the suit property was in possession of the predecessor of defendant
nos.1 to 8. Moreover, it is the case of the defendant that there was
Firm in the name of Naginlal in the year 1949 and for the same
defendant has produced document vide Exh.97 and 98. If the said
documents are perused, the address of the premises is mentioned as
Mota Bajar, Ankleshwar and the suit premises is City Survey
Nos.3039, 3040 and 3041 and situated at Chhota Bajar, Ankleshwar.
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Therefore, the deed of mortgage produced at Exh.72, clearly
indicates that the possession of the premises is handed over to
Naginlal by virtue of the said deed of mortgage and, therefore, the
trial Court and the appellate Court have rightly held that the
defendant has not proved the fact that the defendant was tenant in
the premises.
CONCLUSION :
7. In the present case, when the appellant could not prove that the
predecessor of the respondent - defendant was the tenant of the premises,
the 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 ordinarily 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.
8. 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
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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."
9. 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.
Sd/-
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
