Gujarat High Court
Jagdishbhai Kantibhai Patel ... vs Kiritbhai Narandas Patel on 19 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4827 of 2022
With
CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4827 of 2022
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2024
In R/FIRST APPEAL NO. 4827 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
In R/FIRST APPEAL NO. 4827 of 2022
With
R/FIRST APPEAL NO. 4826 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
✔
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JAGDISHBHAI KANTIBHAI PATEL PROPRIETOR OF SHREE UMIYA
SALES
Versus
KIRITBHAI NARANDAS PATEL
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Appearance:
DHRUVIK K PATEL(7769) for the Appellant(s) No. 1
ANAND R PATEL(7352) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 19/06/2025
COMMON ORAL JUDGMENT
1. The captioned First Appeals are filed under
Section 96 read with Order 41 of the Civil Procedure
Code, 1908 by the appellants - Jagdishbhai Kantibhai
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Patel - original defendant of Civil Suit No.687 of 2016 and
original plaintiff of Civil Suit No.2710 of 2014,
challenging the common judgment and decree dated
30.08.2022 passed by the City Civil Court, Ahmedabad in
Civil Suit Nos.2710 of 2014 and 687 of 2016.
2. Heard learned advocate Mr.Dhruvik Patel for the
appellants and learned advocate Mr.Anand Patel for
respondent.
3. First Appeal No.4826 of 2022 is arising out Civil
Suit No.2710 of 2014 which was filed by Jagdishbhai
Kantibhai Patel - appellant herein seeking relief of
declaration and permanent injunction and First Appeal
No.4827 of 2022 is arising out of Civil Suit No.687 of
2016 which was filed by Kiritbhai Narandas Patel -
respondent herein for recovery of possession of suit
premises coupled with prayer of mesne profit.
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4. Since both the suits were filed for the same
property and controversy and parties in both the suits
were common, both the suits were tried together and by a
common judgment and decree dated 30.08.2022, Civil Suit
No.2710 of 2014 came to be dismissed and Civil Suit
No.687 of 2016 came to be decreed.
5. Brief facts of the case are as under:
5.1 Plaintiff of Civil Suit No.687 of 2016 Kiritbhai
Narandas Patel is the owner of Shop No.33 situated in
Panchvati Estate, Naroda Road, Taluka City Mauje:-
MEMCO District and Sub-district- Ahmedabad. The said
property has been referred to as the "suit property" in
both the suits.
5.2 Plaintiff- licensor gave suit property to the de-
fendant - licensee on an unregistered Rent Agreement
dated 05.07.2010 for a period of 11 months and 29 days.
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The agreed rent was Rs.2,500/- per month. The Rent
Agreement expired on 04.07.2011. Upon expiry, plaintiff
requested possession of the suit property. Although, the
defendant promised to vacate the premises, instead of
doing so, defendant - licensee Jagdishbhai Kantibhai Patel,
filed a suit for declaration and permanent injunction being
Civil Suit No.2710 of 2014 before the City Civil Court,
Ahmedabad. Plaintiff - licensor in Civil Suit No.687 of
2016 claimed possession of suit property and also claimed
mesne profit at Rs.9,000/- per month with a 20% increase
on the said amount as mesne profits.
6. For the sake of convenience, parties are referred
to as the appellant and respondent herein.
7. Summons were served upon respective
defendants of respective suits. Respondent herein appeared
and filed Written Statement at Ex.21. Appellant, who was
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defendant in Civil Suit No.687 of 2016, appeared and filed
Written Statement at Ex.15. On the basis of pleadings, the
learned Trial Court framed the following Issues at
Exhibits 34 and 19 respectively:
Issues of Civil Suit No.2710 of 2014
1.Whether the plaintiff that the suit property has
been given on rent to the plaintiff by the defendant
by way of agreement with monthly rent of 2500/-
as alleged?
2. Whether the plaintiff proves that under the (sic)
defendant is trying to take possession of the suit
property forcefully from the plaintiff?
3. Whether the plaintiff is entitled to get decree for
possession of the suit premises?
4. Whether the plaintiff is entitled to get decree for
mesne profit? If yes, what amount?
5. Whether the defendant is entitled to retain pos-
session of the suit property?
6. Whether the plaintiff is entitled to get the relief
as prayed for in the plaint?
7. What order and decree?
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Issues of Civil Suit No.867 of 2016
8. Whether the plaintiff proves that he had given
the suit property to the defendant by way of agree-
ment with monthly fees of Rs.2,500/- as alleged?
9. Whether the plaintiff proves that though the time
of agreement is over, the defendant has failed to
hand over possession of the suit property as al-
leged?
10. Whether the plaintiff is entitled to get decree
for possession of the suit property?
11. Whether the plaintiff is entitled to get decree
for mesne profits? If yes, what amount?
12 Whether the defendant is entitled to retain pos-
session of the suit property?
13. Whether the plaintiff is entitled to get the relief
as prayed for in the plaint?
14. What order and decree?
8. Appellant-Kiritbhai Narandas Patel examined
himself at Ex.24. Respondent - Jagdishbhai Kantibhai
Patel examined himself at Ex.37. Documentary evidence
such as Rent Agreement, Corporation Tax Bills, Sales Tax,
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Registration Certificate, Trade Mark Registration Certificate,
Invoices and other relevant documents were produced.
After considering the evidence on record, learned Trial
Court dismissed Civil Suit No.2710 of 2014 and decreed
the Civil Suit No.687 of 2016 by directing appellant -
licensee to handover peaceful and vacant possession of the
suit property within 90 days from the date of judgment
and further directed to pay mesne profit at monthly rent
of Rs.2500/- with 15% increase every year to respondent -
licensor-plaintiff from 04.07.2011 till realization. The
amount deposited by appellant-defendant- licensee before
the Court was ordered to be adjusted.
9. Being aggrieved and dissatisfied with dismissal
of the suit and decreeing the suit, appellant has filed
present First Appeals.
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10. Learned advocate for the appellant -Jagdishbhai
Kantibhai Patel submitted that the appellant is carrying on
business of wholesale crockery and glassware in the name
and style of Umiya Sales at the suit property since 2008 as
a tenant. The Rent Agreement dated 05.07.2010 was exe-
cuted between the appellant and respondent. Agreed rent
was Rs.2500/- per month excluding liability of Municipality
Tax. Appellant was regularly paying rent amount to the re-
spondent. Appellant was ready and willing to pay rent.
However, no rent receipts were issued by respondent to
the appellant. Respondent threatened the appellant with
illegal dispossession. Under the pretext of requirement of
suit property, respondent threatened appellant to
dispossess. Such threat was given by respondent before one
week of institution of the suit. Facing threats from respon-
dent, appellant filed a suit seeking prayers of declaration
of tenancy and a relief of permanent injunction. After
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about 2 year of the institution of the said Suit, respondent
herein filed a suit for possession and mesne profit against
appellant.
11. It is submitted that prior to the institution of
suit, appellant was not in arrears of rent and respondent
was accepting rent from the appellant. Appellant deposited
rent amounts in Court after the institution of Civil Suit.
In the absence of any notice of termination of tenancy, the
suit of the respondent is barred under Section 106 of the
Transfer of Property Act. The appellant is a tenant at
sufferance as after the expiration of Rent Agreement on
04.07.2010, respondent was accepting rent regularly
without any protest.
12. So far as mesne profits are concerned, the
agreed rent was Rs.2500/-. However, respondent did not
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led any evidence to substantiate the claim rise of 20%
increase on Rs.9,000/- per month as mesne profit. There is
no documentary evidence to substantiate the claim of
mesne profits, and learned Trial Court has erred in
directing the appellant - defendant to pay mesne profit of
Rs.2500/- with 15% yearly increase from 04.07.2011.
13. It is submitted that, the respondent, in his
cross-examination at Ex.24, has admitted that the appellant
has regularly paid rent upto 04.07.2011. Respondent has
also admitted that no notice of arrears was given by
respondent. The first Rent Agreement was executed
between appellant and respondent on 02.02.2008 for a
period of 11 months 29 days and after expiry of the said
agreement, renewal Rent Agreement at Ex.29 was executed
between the parties on 05.07.2010 on the same terms and
conditions. Appellant has established by documentary
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evidence such as Corporation Tax Bills, Registration
Certificate issued by Central Sales Tax (Registration and
Turnover), Rules 1957 and various retail invoices of Shri
Umiya Sales that he is in possession of the suit property
and enjoying the same as a tenant.
14. Per contra, learned advocate for respondent -
licensor has supported the judgment and decree passed by
the learned Trial Court. It is further submitted that the
Rent Agreement at Ex.28 was the first document, under
which, the suit property was given to the appellant. On
completion of the lease period, a renewal Rent Agreement
at Ex.29 was executed between the parties on 05.09.2010.
Both documents are unregistered. After completion of
period of Rent Agreement i.e. 04.07.2011, no further
renewal agreement was executed.
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14.1 It is further submitted that, on completion of
the period of lease, the status of appellant would be that
of a permissive user and when the specific demand of
possession was made by the respondent, it would amount
to termination/revocation of permission to use. The
appellant in his suit, has alleged that respondent sought
possession of the suit property which was culminated into
the suit for declaration and permanent injunction filed
against the respondent. It is further submitted that once
the period of agreement expires, the appellant has no
other option but to surrender possession. It is submitted
that though the agreement is nomenclature as rent
agreement, the intention of the parties was to create a
leave and license agreement.
14.2 Notification dated 30.10.2001 issued by the State
of Gujarat, whereby vide Gujarat Act No.27 of 2001
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amendment was made after Sub-section 1A of Section 4 of
the principal Act, which is reproduced as under:
"1(A) This Act shall not apply to -
(a) any premises constructed on or after the
commencement of the Bombay Rents, Hotel and
Lodging House Rates Control (Gujarat Second
Amendment) Act, 2001 (hereinafter referred to as
'the amending Act")
(b) any existing premises which is self-occupied by
the owner of vacant on or after the commencement
of the amending Act, and is let after such
commencement.
For a period of ten years from the date of the
commencement of the amending Act.
Explanation: For the purpose of this section
"existing premises" means any premises which
exists on the date of the commencement of the
amending Act".
The Notification dated 30.10.2001 issued by the
State Government, the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 has been suspended w.e.f
2001 for a period of 10 years. It is further submitted that
once the Rent Act has been suspended, the question of
relationship of landlord and tenant between the parties
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would not arise at all and the parties would be governed
under the provisions of Transfer of Property Act.
14.3 It is further contended that once a suit for
declaration and permanent injunction is filed by the
appellant wherein it has been alleged that the respondent
has sought possession of the suit property that would
amount to a deemed notice to the appellant - licensee and
therefore, no separate notice is required to be given to the
appellant terminating/revoking permission to use and
asking for possession. The respondent, thereafter, filed a
suit for recovery of possession coupled with a prayer for
mesne profits would also amount to a notice to the
appellant revoking his permission to use and therefore also
no separate notice terminating tenancy/licence is required
to be given to the appellant.
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14.4 It is submitted that, appellant in the aforesaid
set of facts, appellant cannot be termed as a tenant at
sufferance since the Bombay Rent Act has been suspended
and the provisions contained under the Bombay Rents Act
are not applicable to the parties to the present
proceedings. Question of claiming tenant at sufferance is
out of place and such question would not arise when the
appellant has occupied the suit property after suspension
of the Bombay Rent.
14.5 In support of his contention, learned advocate
for respondent has relied upon the following decisions:-
(i) Maria Margarida Sequeira Fernandes and Others
Vs. Erasmo Jack De Sequeira (Dead) Through LRS.
Reported in (2012) 5 SCC 370;
(ii) Satendra Singh Vs. Vinod Kumar Bhalotia
reported in 2014(0) AIJEL-SC 56024;
(iii) Dipak Rasbiharilal Goyel Vs. Nalinben H. Raval
reported in 2012(0) AIJEL-HC 226723.
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14.6 Reliance is placed upon the case of Maria
(supra), in paragraph No.97, the principles of law has been
crystallized as under:-
"97 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
would 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.
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14.7 Reliance is placed upon the case of Satendra
Singh (supra), in paragraph No.15, the Hon'ble Supreme
Court has observed as under:
"15.The consideration recorded hereinabove
demonstrates, how the process of law has been sought
to be misused, to defeat a simple claim of eviction, on
the expiry of a rent agreement. Even though, as already
noticed hereinabove, the rent agreement was for a
period from August, 1981 to June, 1982, and the
petitioner should have voluntarily vacated the suit
premises, and should have handed over the possession
of the suit premises voluntarily to the respondent-
landlord in July, 1982, he has successfully repulsed all
attempts of the respondent-landlord, to recover the
possession of the suit premises. The petitioner-tenant is
still in occupation of the premises even though more
than 32 years have been elapsed, since the expiry of
the rent agreement. It was in the instant background,
that this Court had issued notice to the petitioner,
calling upon him to show cause, why he should not be
required to pay user charges at the rate of Rs. 1,000/-
per month with effect from 1.7.1982".
14.8 Reliance is placed upon the case of Dipak Goyel
in paragraph No.10, this Hon'ble Court has observed as
under:
"[10] Another facet of the arguments which have been
emphasized by learned advocate Mr.J. R. Shah referred
to the provisions of the Transfer of Property Act
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particularly section 106 and section 111(a) to emphasize
that the Transfer of Property Act would be attracted
even if the Rent Act is not applicable. In that case such
possession cannot be recovered without following the
procedure and issuance of notice as contemplated under
the provisions of the Transfer of Property Act
particularly section 106 is also misconceived. Both the
aforesaid submissions, proceed on the assumption that it
is a lease and the agreement is a lease agreement. It is
required to be noted again, as per the leave and licence
agreement at Ex.26, it has been specifically stipulated in
the agreement itself that the possession of the premises
is given on leave and licence basis for the period of 11
months only and not as a lessee or tenant. Further, the
provisions of Section 106 of the Transfer of Property
Act provides with regard to the termination of a lease
and the notice in absence of any agreement or written
contract. However, in the facts of the case, there is
specific leave and licence agreement between the parties
which provides for the aspects like, the possession is
handed over on leave and licence agreement for a
period of 11 months making it clear that it is not a
lease and that the appellant cannot claim any right or
possession as a lessee or a tenant. Therefore, when
there is is expressed stipulation in the contract / leave
and licence agreement providing for such aspects that
Section 106 of the Transfer of Property Act will not
have any application as it refers to the lease. Further as
stated above again it refers to the lease where there is
no contract whereas in the facts of the case there is a
separate leave and licence agreement at Ex.26 between
the parties. Therefore, this submission made by learned
advocate Mr.J. R. Shah also would not have any
application. The submission made by learned advocate
Mr.J. R. Shah to claim any right as a tenant or a lessee
cannot be accepted in light of the specific leave and
licence agreement at Ex.26 coupled with the fact that
the operation of the Rent Act has been suspended for
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10 years and the statutory provisions of the Rent Act
would not be attracted. Therefore, the submissions
made by learned advocate Mr.J. R. Shah cannot be
accepted. The submissions made by learned advocate
Mr.J. R. Shah to claim any right as a tenant or a lessee
cannot be accepted in light of specific leave and licence
agreement at Ex.26 coupled with the fact that the
operation of the Rent Act has been suspended for a
period of 10 years and the statutory provisions of the
Rent Act would not be attracted. The reliance has been
placed by learned advocate Mr.Shah referring to the
decision in the case of Lalchand etc. Vs. State of
Haryana, reported in AIR 1984 SC 226, will not have
applicable. Similarly the reliance has been placed by
learned advocate Mr.Shah referring to the decision in
the case of P. Ramasami Naidu Vs. Venkataramajulu
Naidu and another, reported in AIR 1914 Madras 301
again would not be applicable as it refers to the lease
whereas in the facts of the case, it is a case of leave
and licence agreement. Similarly, the reliance has been
placed by learned advocate Mr.Shah the decision of
Calcutta High court in the case of Shyam Sundar
Ganeriwalla Vs. Delta International Limited, reported in
1998 (2) RCR 199, does not apply in light of the
specific notification issued by which the provisions of
the Rent Act have been suspended. Similarly, unless it
could be proved prima facie with the evidence that it
was a lease, the Transfer of Property Act would also
not be any applicability. Therefore, as discussed above,
the submission has to be considered in the background
of the facts and material on record and there is no
doubt about the fact that it was not an agreement of
lease but it was an agreement for leave and licence.
The observations which have been referred to are made
with reference to the facts applicable in a given case of
lease and not in the present case".
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15. I have considered rival submissions canvassed
by learned advocates for the respective parties and also
perused the record and proceedings. The suit property
which is a shop given to the appellant - plaintiff of Civil
Suit No.2710 of 2014 by executing an unregistered Rent
Agreement dated 02.02.2008 Ex.28 for a period of 11
months and 29 days. The agreed rent was Rs.2500/- per
month excluding Municipal Taxes. On completion of period
of agreement, renewal Rent Agreement at Ex.29 was exe-
cuted between the parties on same conditions on
05.07.2010. Undisputedly, the subsequent Rent Agreement
expired on 04.07.2011 and thereafter there was no renewal
or fresh Rent Agreement executed in favour of appellant.
It appears from the averments made in the
plaint that owner- defendant gave threats of eviction and
upon such cause of action, licensee - appellant filed a suit
for declaration of tenancy and permanent injunction. It is
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the contention of appellant that he is the tenant of suit
property enjoying possession since 2008 and carries on
business of selling wholesale crockery and glassware in the
name and style of Umiya Sales. It is also the case of ap-
pellant that, he is having all valid licences issued by
Ahmedabad Municipal Commissioner for running the busi-
ness. He is also having a certificate of registration issued
by Ahmedabad Municipal Corporation for professional Tax
and he has been regularly paying rent and Municipal
Taxes. Documents are produced by appellant are sufficient
evidence that he is in possession of suit property and run-
ning a business.
16. Be that as it may, what is under considera-
tion is whether an occupier/lincensee/permissive user of
the property be permitted to retain possession of the prop-
erty after the expiration of period of rent agreement/leave
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and licence agreement. When the parties agreed by rent
agreement that the duration of the Rent Agreement would
be 11 months and 29 days, unless there is an extension of
rent agreement in writing, the occupier licnesee/lessee
looses his right to retain possession over the property.
The possession of a licensee/lessee permissive user can be
protected only during subsisting and valid written agree-
ment. Once the agreed period to retain possession is com-
plete, the person occupying the property would be termed
as a permissive user and on day, on which, licensor/owner
demands actual, peaceful and vacant possession of the
property, permission to occupy the property is cancelled/
revoked and the status of occupier on such eventuality
would be that of a trespasser. Even if the document is ti-
tled as rent agreement, the intention of parties can be
gathered from the terms and conditions stipulated in the
agreement. Merely because agreement is labeled as rent
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agreement, the agreement would not be treated as lease
agreement/rent agreement.
In the present case, it is the specific contention
of appellant in the plaint that before one week of the in-
stitution of the suit, by not accepting the rent by respon-
dent - owner, appellant was threatened by respondent to
be evicted from the suit property. The suit for declaration
of tenancy is misconceived and ill advised litigation. When
the parties are not governed by the provisions of the Bom-
bay Rent Act/Gujarat Rent Act, declaration of tenancy is
nothing but an abuse of process of law by dragging the
rightful owner into a lengthy and complicated process of
litigation.
17. It is pertinent to observe at this stage that, the
plaintiff -Jagdishbhai Kantibhai Patel, for reasons best
known to him, has deliberately suppressed in the plaint
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first Rent Agreement executed between the parties on
02.02.2008 and has mentioned only the second Rent
Agreement dated 05.07.2010. Plaintiff did not aver that no
further renewal of the Second Rent Agreement was exe-
cuted between the parties. Merely by having permissions
issued by Government/Corporation to run a business can-
not be construed to retain possession as a tenant/licensee
after the period of completion of period of agreement.
Such license/ permission issued by Government/Corporation
is for a different reason i.e. for levying taxes from the per-
sons, who is running a business in the premises. Paying of
Municipality Tax and Education Tax also would not led to
a tenancy since such taxes are levied by Corporation under
a different statute. Reflecting name in tax bill,
electricity bills are for fiscal purposes. To substantiate a
claim of tenancy, there has to be either a written contract
of tenancy or rent receipts or by direct
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and specific conduct of the landlord/owner/licensor ac-
cepting the person as a tenant. Long standing possession
of a property would not led to a tenancy unless expressly
agreed upon between the parties. To claim a tenancy,
mere possession is not a sufficient evidence.
18. If the oral evidence of parties are perused, it
appears that, there is no quarrel on a fact that two Rent
Agreements were executed between the parties and after
04.07.2011, there is no renewal. What is only contended
at this stage by learned advocate for the appellant is that
since expiry of the Rent Agreement, respondent has been
accepting rent till 2016 and even pending suit, rent
amount has been regularly deposited by appellant in the
Court and therefore, appellant is a holding over a tenant.
19. Section 116 of Transfer of Property Act, 1882
has been reproduced as under:-
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"116. Effect of holding over.--
If a lessee or under-lessee of property remains in pos-
session thereof after the determination of the lease
granted to the lessee, and the lessor or his legal repre-
sentative accepts rent from the lessee or under-lessee,
or otherwise assents to his continuing in possession, the
lease is, in the absence of an agreement to the con-
trary, renewed from year to year, or from month to
month, according to the purpose for which the property
is leased, as specified in Section 106."
20. Section 116 of the Transfer of Property Act pro-
vides for creation of tenancy by holding over in two cir-
cumstances, one, where the lesser or his legal representa-
tive accepts rent from the lessee and second assents to his
continuing in possession. The words accept rent or other-
wise, assents to his continuing in possession in section 116
contemplates that from the side of lessee, there should be
an offer to take a new lease and on the side of lessor
there must be a definite consent to the continuation of
possession. tenancy of holding over is a creature of a bi-
lateral act and does not come into existence by mere uni-
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lateral intendment of declaration of one of the parties. The
expression holding over means that relationship of landlord
and tenant was allowed to continue with consent of both
the parties.
If a tenant after termination of lease is in pos-
session without the consent of the landlord, he is a tenant
by sufferance.. It is only where a tenant will continue in
possession with the consent of the landlord that he can be
called a tenant holding over or a tenant that will.
The plaintiff has not claimed his tenancy as a
holding over tenant or tenant at sufferance. But has only
pleaded that when the appellant went to offer a rent, the
owner refused to accept rent and threaten the apple to the
suit property. In paragraph number six of the plaint, it is
pleaded by the plaintiff that time and again the applicant
offered the rent, but the respondent refused to accept the
rent. It is during the pendency of the proceedings, appli-
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cant has deposited the amount with the court. In exhibit
37, examination in chief appellant tried to improvise his
stand made a statement for the first time that after com-
pletion of the period of rent agreement, respondent has ac-
cepted rent from appellant. Thus, two exactly opposite
stand has been raised by appellant. There is no evidence
on record that after alleged threat given by respondent to
appellant , with the consent of respondent, the appellant
continued to remain in possession and the rent was paid
pursuant to such consent given by respondent.
21. The submission on claiming tenancy at suffer-
ance is misconceived for the simple reason that the agree-
ment between the parties have been executed after 2001
and even if the document referred parties as 'tenant' and
'landlord' respectively, would not establish a relationship
of a tenant and landlord respectively.
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22. As discussed above, the Bombay Rent Act has
been suspended by Notification dated 30.10.2001 provi-
sions of the Bombay Rent Act would not apply to the par-
ties to this proceedings.
23. To make the statement made in Examination-in-
chief considered, there has to be a pleading/averment in
the plaint. Any statement on facts stated in examination in
chief not pleaded in the plaint or written statement has no
evidentially value, unless a new facts have developed af-
ter plaint or written statement is filed.
24. Sub-section (12) of Section 2 of the Code of
Civil Procedure, 1908 defines mesne profits, which is re-
prodduced as under:-
"2(12) "mesne profits" of property means those profits
which the person in wrongful possession of such prop-
erty actually received or might with ordinary diligence
have received therefrom, together with interest on such
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profits, but shall not include profits due to improvements
made by the person in wrongful possession".
25. The aforesaid provision mandates that those
profits which the person in wrongful possession of such
property actually received or might with ordinary diligence
have received therefrom together with interest on such
profit be called mesne profits. A claim for mesne profits
would ordinarily be made in a suit for recovery of immov-
able property or suit for eviction from an immovable
property. However, in cases where in the suit claiming for
mean profits, a precise estimation of claim is not available.
The plaintiff may mention an approximate amount or call
upon the court to measure the amount after taking all un-
settled accounts between the parties into consideration.
The burden of proof in such cases lies upon the Party who
is claiming that the other party is in illegal possession of
the property of which the claimant is a rightful owner.
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Mesne profits are the calculated on case to case basis and
there is no singular method of calculation. Mesne profits is
the amount paid to the lawful owner of the property in
damages by the wrongful possessor. The court has to de-
termine the amount on a comparative assessment of the
nature of suit property, its location, age, and condition as
well as an analysis of the valuation of the lease in the
concerned area, the rental price of the property, the rental
price claimed in the plaint among several other factors.
26. In the present case, respondent in his plaint has
claimed 20% increase on Rs.9,000/- per month from
03.07.2011 as mesne profit. In the plaint, the area and lo-
cation, where the suit property is situate is pleaded. It has
also pleaded that area has developed on a large scale after
2010 and the market value of the suit property has also
increased to a great extent. The nearby properties of other
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owners/occupiers, market value has increased on a large
scale. The appellant - licensee is occupying the suit prop-
erty without any written permission and because of the
possession being retained by appellant, respondent is not
in a position to use and develop property for his own pur-
pose. The owner is deprived of income that may be de-
rived by using the suit property. The licensee fees/rent of
properties surrounding suit property has been increasing
every two years. The said contentions are simply and casu-
ally denied by appellant in his Written Statement at Ex.15.
If the Examination-in-chief of the respondent recorded at
Ex.24 is perused, the same contentions are narrated in Ex-
amination-in-chief but respondent - owner has not been
contradicted by appellant with regard to development of
area where suit property is situate which has undergone
after 2010. There is neither contrary questions put to the
respondent nor serious contest is raised by appellant on
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appreciation of market value of the suit property as well
as properties surrounding the suit property.
27. On the other hand, if the cross-examination of
the appellant, which is recorded at Ex.37, is considered,
appellant has admitted in the cross-examination that the
road on which the suit property is situated, has been
developed, and rate of rents of other properties surround-
ing the suit property has been increased. The area and the
location were the suit property is situated has been
developed and if a shop is taken on rent in the year
2021, the rent is prevailing is Rs.12000-15000/- per
month. On considering such oral deposition of the parties,
a fact which has emerged on record is that, the area and
location where the suit property is situated has been
developed and the businesses have been flourished and
considering such evidence, learned Trial Court directed the
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appellant to pay mesne profit of monthly rent of Rs.2500/-
with 15% increased in every year from 04.07.2011 till real-
ization. The conclusion on mesne profit is not without any
base. However, the same is arrived at by learned trial
Court on undisputed facts emerge during the course of oral
deposition. Admitted oral statements during deposition of
parties is best available evidence in determining mesne
profits in such type of cases. In absence of any
documentary evidence, oral deposition of parties is the
best available evidence and Court can certainly rely upon
such oral evidence.
28. In the background of the above discussions and
in view of the facts and circumstances of the case, I do
not find any merit in First Appeals. Resultantly, both
First Appeals are hereby dismissed. Interim relief, if any,
stands vacated.
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29. After completion of dictation, learned advocate
for the appellant has requested for stay of this order.
30. Learned advocate for respondent has objected to
such request and submitted that since January 2024,
appellant has not deposited any amount as directed by this
Hon'ble Court while granting stay. Therefore, no stay may
be granted.
31. Request for stay is rejected.
32. In view of the dismissal of present First Appeals,
connected Civil Applications stand disposed of accordingly.
33. Record and proceedings, if any, received, be
sent back to the concerned Court/Tribunal.
(D. M. DESAI,J)
MANOJ
