Gujarat High Court
Maganji Rajuji Thakor vs Lhs Of Surbharanji Varvaji Thakor on 1 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 185 of 2023
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MAGANJI RAJUJI THAKOR
Versus
LHS OF SURBHARANJI VARVAJI THAKOR & ORS.
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/05/2025
ORAL ORDER
1. The present second appeal has been filed under section 100 of
the Code of Civil Procedure 1908, ('the CPC', for short) challenging
the judgement and decree dated 07.01.2023 passed by the Additional
District Judge, Mehsana passed in Regular Civil Appeal No.80 of
2009, whereby the judgement and decree dated 17.11.2009 passed by
the 3rd Additional Senior Civil Judge, Mehsana in Regular Civil Suit
No.104 of 1995 is confirmed.
2. For the sake of brevity, the parties are referred to as their
original status i.e. the present appellant is referred to as the plaintiff
whereas the respondents herein are referred to as original defendant.
3.1 The brief facts arising in the present Second Appeal are that,
the plaintiff filed Civil Suit on the ground that the plaintiff is a tenant
of the suit property and as the defendant no.2 threatened the
plaintiff, the plaintiff filed suit for injunction with respect to the suit
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property. The defendant appeared in the said suit and filed his written
statement and it is a case of the defendant that the suit property has
been given on rent to the plaintiff.
3.2 The trial court framed issues vide Exh.116 and after going
through the documentary as well as oral evidence and after giving
findings on all the issues, the trial court dismissed the suit. Aggrieved
by the said judgement and decree, the plaintiff filed Regular Civil
Appeal and after reappreciating the evidence, the first Appellate
Court dismissed the said civil appeal and the judgement and decree
passed by the trial court in Regular Civil Suit No.104 of 1995 has
been confirmed.
4. Learned advocate for the plaintiff has mainly submitted that
judgment and decree passed by the Additional District Judge,
Mehsana in appeal is contrary to the law and the evidence produced
before the Court. It has been argued that the plaintiff has proved
before the trial court that the plaintiff is tenant of the suit property
and the trial Court has not taken into consideration the oral as well
as documentary evidence more particularly the receipts of Nagar
Palika for demand of tax as well as receipt of payment of tax that has
been paid by the plaintiff to prove his possession in the suit property.
It has been argued that the trial Court and the appellate Court could
not have decided the dispute as the dispute is between the landlord
and the tenant and the same had to be decided by the court being
empowered under the Gujarat Rents Hotel and Lodging House Rates
Control Act, 1947 ('the rent act', for short) and, therefore, it has been
argued that there are substantial questions of law involved in the
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present Second Appeal and the same are suggested in the memo of
appeal and, therefore, the appeal is required to be admitted.
5.1 Having heard learned advocate for the plaintiff, the fact
remains that the main issue that has been raised by the plaintiff is that
the trial court and the appellate Court did not have jurisdiction to
hear and decide the present suit as the dispute is between the landlord
and tenant and, therefore, as per section 28 of 'the rent act', the said
dispute had to be decided by the Court having exclusive jurisdiction
to hear and decide the said suit. For ready reference sections 28 and
29 of 'the rent act' is referred to here under:
28. Jurisdiction of Courts:- [(1)] Notwithstanding anything
contained in any law and notwithstanding that by reason of
the amount of the claim or for any other reason, the suit or
proceeding would not, but for this provision, be within its
jurisdiction,
[(a) in the City of Ahmedabad, the Court of Small Causes of
Ahmedabad,]
[(aa) in any area for which a Court of Small Causes is
established under the Provincial Small Cause Courts Act,
1887, such Court, and]
(b) elsewhere, the Court of the Civil Judge (Junior Division)
having jurisdiction in the area in which the premises are
situate or, if there is no such Civil Judge, the Court of the
Civil Judge (Senior Division) having ordinary jurisdiction,
shall have jurisdiction to entertain and try any suit or
proceeding between a landlord and a tenant relating to the
recovery of rent or possession of any premises to which any
of the provisions of this Part apply and to decide any
application made under this Act and to deal with any claim
or question arising out of this Act or any of its provisions
and 140[subject to the provisions of sub-section (2),] no
other Court shall have jurisdiction to entertain any such
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suit, proceeding or application or to deal with such claim or
question.
[(2) (a) Notwithstanding anything contained in clause (aa) of
subsection(1), the District Court may at any stage withdraw
any such suit, proceeding or application pending in a Court
of Small Causes established for any area under the
Provincial Small Cause Courts Act, 1887, and transfer the
same for trial or disposal to the Court of the Civil Judge
(Senior Division) having ordinary jurisdiction in such area.
(b) Where any suit, proceeding or application has been
withdrawn under clause (a), the Court of the Civil Judge
(Senior Division) which thereafter tries such suit, proceeding
or application, as the case may be, may either re-try it or
proceed from the stage at which it was withdrawn.
(c) The Court of the Civil Judge trying any suit, proceeding
or application withdrawn under clause (a) from the Court of
Small Causes, shall, for purposes of such suit, proceeding or
application as the case may be, deemed to be the Court of
Small Causes.]
Explanation.-In this section "proceeding" does not include
an execution proceeding arising out of a decree passed
before the coming into operation of this Act.
29. Appeal :- (1) Notwithstanding anything contained in any
law, an appeal shall lie-
[(a) in the City of Ahmedabad, from a decree or order made
by the Court of Small Causes, Ahmedabad, exercising
jurisdiction under section 28 to a bench of two judges of the
said court which shall not include the judge who made such
decree or order;]
(b) [elsewhere from a decree] or order made by 144[a Judge
of the Court of Small Causes established under the
Provincial Small Cause Courts Act, 1887, [or by the Court
of the Civil Judge deemed to be the Court of Small Causes
under clause (c)of sub-section (2) of section 28] or by] a Civil
Judge exercising such jurisdiction, to the District Court:
[Provided that no such appeal shall lie from--
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(I) a decree or order made in any suit or proceeding in
respect of which no appeal lies under the Code of Civil
Procedure, 1908; IX of 1887. IX of 1887. Appeal. IX of
1887. V of 1908. Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 31 of 45
(II) a decree or order made in any suit or proceeding (other
than a suit or proceeding relating to possession) in which the
plaintiff seeks to recover rent and the amount or value of the
subject matter of which does not exceed-
[(i) where such suit or proceeding is instituted in the City of
Ahmedabad, two thousand rupees, and]
(ii) [where such suit or proceeding is instituted elsewhere the
amount upto] which the Judge or Court specified in clause
(b) is invested with jurisdiction of a Court of Small Causes,
under any law for the time being in force;
(iii) an order made upon an application for fixing the
standard rent or for determining the permitted increases in
respect of any premises except in a suit or proceeeding in
which an appeal lies;
(iv) an order made upon an application by a tenant for a
direction to restore any essential supply or service in respect
of the premises let to him.]
[(1A) Every appeal under sub-section (1) shall be made
within thirty days from the date of the decree or order, as
the case may be :
Provided that in computing the period of limitation
prescribed by this sub-section the provisions contained in
sections 4, 5 and 12 of the Indian Limitation Act, 1908 *
shall, so far as may be, apply.]
[(2) No further appeal shall lie against any decision in appeal
under subsection (1) but the High Court may, for the
purpose of satisfying itself that any such decision in appeal
was according to law, call for the case in which such decision
was taken and pass such order with respect thereto as it
thinks fit.]
[(3) Where no appeal lies under this section from a decree or
order in any suit or proceeding 154[* * * *] 155[in the City of
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Ahmedabad the bench of two judges, specified in clause (a)
of sub-section (1) and elsewhere] the District Court, may for
the purpose of satisfying itself that the decree or order made
was according to law, call for the case in which such decree
or order was made and pass such order with respect thereto
as it thinks fit.]"
5.2 While taking into consideration the said provisions of law, the
Rent Court can only decide the dispute between the landlord and
tenant and in the present case, the plaintiff himself has filed a civil
suit claiming right to be the tenant in the property and the dispute is
squarely covered under the provisions of section 28 of 'the rent act'
and a challenge to that order has been made by the plaintiff by filing
an appeal under section 96 of the CPC and even thereafter the said
order passed by the first appellate Court was required to be
challenged by filing a Civil Revision Application as provided under
section 29 of 'the rent act' and a Second Appeal is not maintainable,
the present plaintiff has preferred a second appeal against the
judgement and order passed by the first appellate Court and,
therefore, after filing the suit before the Civil Court and challenging
the same under the provision of section 96 of the CPC and thereafter
filing a Second Appeal under Section 100 of the CPC, the plaintiff
can not now come forward with the case that the suit itself was not
maintainable
5.3 Moreover, the fact remains that the plaintiff has not produced
any documentary evidence to support his case that he is tenant of the
property. There is neither any rent note nor there is any document to
support the claim of the plaintiff that the plaintiff was ever the tenant
of the property. There is no iota of evidence to suggest that the
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defendant had ever agreed to make the plaintiff tenant in the
property. At the most, the possession of the plaintiff in the suit
property is that of permissive user and the plaintiff does not have any
subsisting rent agreement.
5.4 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."
5.5 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."
5.6 The appellate Court has relied on the judgment passed in the
case of Maria Margarida Sequeria Fernandes and Others v. Erasmo
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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 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."
6. 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
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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.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
