Gujarat High Court
Dilip Jaisukhlal Marjadi vs Decd. Shantilal Jivanji Rana Through ... on 10 November, 2025
NEUTRAL CITATION
C/CRA/309/2016 ORDER DATED: 10/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 309 of 2016
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DILIP JAISUKHLAL MARJADI & ANR.
Versus
DECD. SHANTILAL JIVANJI RANA THROUGH HEIRS- DAHIBEN
SHANTILAL RANA & ORS.
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Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1,2
DECEASED LITIGANT for the Opponent(s) No. 1
DELETED for the Opponent(s) No. 3
MR HARSH N PAREKH(6951) for the Opponent(s) No. 2,4,5,6,7,8,9
PRIYAL M PARIKH(7593) for the Opponent(s) No. 2,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/11/2025
ORAL ORDER
1. Present Revision under section 29(2) of the Gujarat Rents,
Hotel and Lodging House Rates Control Act, 1947 (for short 'Rent
Act') is filed by original plaintiff of Regular Civil Suit No.223 of
1985.
2. For convenience, parties are referred to as their status
before the learned Trial Court.
3. Deceased - Shantilal Jivanji Rana was tenant of House
bearing City Survey No.1118, Municipal House No.4/441 (for
short demise premises) at monthly rent of Rs.6 per month.
Plaintiffs were landlord and filed Regular Civil Suit No.233 of
1995 under the Rent Act seeking peaceful and vacant possession
of demise premises raising multiple grounds available under the
provisions of Rent Act. During the pendency of suit proceedings,
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tenant - Shantilal Rana expired living behind his heirs including
his widow - Dahiben Rana. All the legal heirs of deceased
Shantilal Rana were joined as party defendants. The plaintiff
also prayed for relief under section 13(1)(l) and section 13(1)(k) of
the Rent Act pleading that legal heirs of deceased - Shantilal
Rana had acquired alternate and suitable accommodation.
4. Learned Trial Court decreed the suit against all the
defendants except defendant no.1/1 - Dahiben and also directed
all the defendants to pay arrears of rent. Learned Trial Court
passed conditional decree that till defendant no.1/1 - Dahiben
lives in the demise premises, landlord would not be entitled to
get vacant and peaceful possession of demise premises.
5. Being aggrieved and dissatisfied with judgment and decree
passed by learned Trial Court, Regular Civil Appeal No.26 of
1997 was filed which was later on renumbered as Regular Civil
Appeal No.225 of 2002. This appeal was filed under the
provisions of Rent Act. The appeal was dismissed by the learned
Appellate Court and confirmed the judgment and decree that till
deceased - Dahiben lives in the demise premises, landlord has
no right to seek eviction. However, in operative part of the
judgment and decree delivered by learned Appellate Court (see
para 14), it is held that judgment and decree passed against rest
of the defendants would include defendant no.1/9. In the
aforesaid premises.
6. In the aforesaid premises, present Revision Application is
filed under section 29 of the Rent Act.
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7. Solitary argument canvassed by learned advocate
Mr.Pandya for the appellant herein that during pendency of
Revision Application, deceased - Dahiben has expired on
15.04.2021. He has placed on record copy of the death
certificate. It is submitted that since Dahiben expired during
pendency of Revision Application, now decree becomes
enforceable and therefore, to that extent necessary modification
is to be made in the concurrent findings arrived by learned Trial
Court. He referred to judgment in the case of Aziz Fazlehusein
Karaka v/s. Batul Abbasbhai Rangwala [Civil Revision
Application No.610 of 2018], more particularly, para 17
thereof, which reads as under :-
"(17) The conspectus of the aforenoted observations of this
Court and the Apex Court will propose that the requirement
of Section 13 (1)(1) of the Rent Act is that, the landlord shall
be entitled to recover possession of any premises if the Court
is satisfied that the tenant, after coming into operation of
this Act, has built or acquired vacant possession of or been
allotted a suitable residence and an eviction petition against
one of the joint tenant is sufficient against all the joint
tenants and all joint tenants are bound by the order of the
Rent Controller as joint tenancy is one tenancy and is not a
tenancy split into different legal heirs. If these persons
become tenants in common or joint tenants, it is not the
requirement of the law that all the tenants should have built
accommodation for their residence. In the present case, the
joint tenancy has been inherited by the defendants from
their fathers who were living jointly and upon their demise,
the defendants have continued to occupy the demise
property jointly. Defendant no.1 is residing in the property
purchased in his wife's name and defendant no.3 has
purchased the property in his own name. Defendant no.5 is
residing with his wife at Astodia in a flat. Neither the
defendants no.2 and 4 nor the other defendants have
adduced any evidence that they could not have been
accommodated in the alternative accommodations. The
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report of the Court Commissioner, Exh.11 indicates that
except defendant no.4, no one was found present in the
demise property. Hence, when three defendants have been
found to have been residing separately and defendant nos.1
and 3 are residing in the property owned by them, the
defendant nos.2 and 4 cannot insist upon occupying the
demise property. Thus, even if no evidence has emerged that
the defendant nos.2 and 4 have not acquired any property,
their eviction from the demise property can be ordered in
wake of the established evidence that other joint tenants
have acquired their property and are living residing
separately."
8. Mainly on above submissions, learned advocate Mr.
Pandya submitted to allow the Revision Application and to
modify judgment and decree passed by learned Trial Court.
9. Learned advocate Ms. Parekh appearing for the
respondents would object argument of learned advocate for the
appellant to the effect that learned Trial Court has not passed
any decree against respondent no.1/9 -Kiritkumar Shantilal
Rana. She would further submit it is rather observed by learned
Trial Court in impugned judgment that respondent no.1/9 was
living with Dahiben. Therefore, judgment and order passed by
learned Trial Court in civil suit would equally applies for
respondent no.1/9 and he cannot be evicted as he is living there
in demise premises. It is further submitted that instead of
present Revision, the appellants ought to have filed Execution
petition to get possession of demise premises from Kiritkumar
Shantilal Rana.
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9.1. Mainly on above submissions, it is submitted to dismiss
the Revision Application.
10. Having heard learned advocates for both the sides, it is
noticed that on multiple grounds available under Rent Act,
plaintiff has filed suit against Shantilal Rana who was tenant of
demise premises way back in the year 1985. However, during
pendency of suit proceedings, tenant - Shantilal Rana expired
living behind his Class - I heirs. Having joined them as
respondents - defendant nos.1/1 to 1/9, what could also be
noticed that according to plaintiff except Dahiben wife of
deceased Shantilal Rann, all other defendants having acquired
alternate and suitable accommodation, as such grounds
available under section 13(1)(l) of the Rent Act was pleaded
before the learned Trial Court.
11. In order to appreciate rival pleadings, learned Trial Court
framed as many as 9 issues at Exh.21 which reads as under (it
is in Gujarati, for better understanding it is translated in
English) :-
"(1) Whether the Plaintiffs prove that the Defendant
has constructed a structure of permanent nature
in the suit property, without a consent of the
Plaintiff ?
(2) Whether the Plaintiffs prove that the Defendant
has acquired a livable second house and the
Defendant has been residing there ?
(3) Whether the Plaintiffs prove that the deceased
Shantilal Jivanji Rana had conveyed the
possession of the suit property to a third party ?
(4) Whether the Plaintiffs prove that the Defendant
has kept the suit property 'not in use' condition ?
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(5) Whether the suit is barred by limitation ?
(6) Whether the Plaintiffs are entitled to receive back
peaceful and direct possession of the suit
property from the Defendant ?
(7) Whether the Plaintiffs prove that the deceased
Shantilal J. Rana had breached the terms and
conditions of tenancy ?
(8) Whether the Plaintiffs prove that they are entitled
to receive Rs. 6/- per month from the Defendants
towards interim proceeds ?
(9) What Order and What order has been
pronounced ?"
12. Both parties were permitted to lead evidence and
accordingly, both the parties have led evidence which has been
appreciated by learned Trial Court. To answer aforesaid issues,
learned Trial Court answered issue nos.1,3,4,5 and 7 in
negative, issue no.2 was answered in affirmative, issue no.6 was
answered partly in affirmative and partly negative and for issue
nos.8 and 9 final order was to the extent that plaintiffs are
entitled for mesne profit at Rs.6 per month from defendants.
13. Operative order passed by the learned Trial Court reads as
under (it is in Gujarati, for better understanding it is translated
in English) :-
"(1) The plaint, up to the extent of rent, is allowed
and is dismissed with regard to possession.
(2) As Defendant No.1/1 Dahiben Shantilal Rana
has been living in the suit property, the Plaintiffs
are not entitled to its possession under Section
13(1) of the Mumbai Rent Control Act.
(3) The Defendant shall pay rent of Rs. 6/- per
month till the suit property is under possession
of Defendant No. 1/1 and the Defendant shall
pay the Plaintiffs the outstanding rent for the
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period from instituting of the suit to present day,
immediately.
(4) In the facts and circumferences of the case, it is
ordered that the parties to bear their respective
cost.
(5) Decree shall be drawn as per the final order."
14. Aforesaid finding has been challenged by way of appeal
under Rent Act by the plaintiffs, the appeal was dismissed by the
learned Appellate Court by following observation in para 14 (it is
in Gujarati, for better understanding it is translated in
English) :-
"(14) Moreover, in the present case, the court below
has dismissed the suit of plaintiff to the extent of
possession of Defendant No. 1/1, whereas the plaint
against the remaining defendants, with regard to
handing over peaceful and direct possession of suit
property, has been granted. In view of these facts, as
far as it concerns the Defendant No. 1/5, 1/6 and
1/8, the subordinate court has accepted that they
have acquired alternate premises with sufficient
amenities and these defendants have not challenged
the order of subordinate court in an appeal. In the
same manner, as far as the Defendant No. 2, 3, 4 and
7 are concerned, they are the daughters of deceased
Shantilal Jivanlal and they are married and live at
their respective matrimonial houses. Therefore, the
Subordinate Court has held that even their rights as
tenant do not subsist any more and the same has not
been challenged by these Defendants in an appeal.
Further, as far as the Defendant No. 9 is concerned,
perusing the facts of the Judgment of the subordinate
court, it has been held that the Plaintiffs have not
established that the said Defendant has acquired any
alternate premises. It has also emerged on record from
the Ration Card that the Defendant No. 1/1 and 1/9
live together. However, in its final order, the
Subordinate Court has dismissed the suit as far as it
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concerned the Defendant No. 1/1. Not any order,
concerning the Defendant No. 1/9, has been made
against the Plaintiffs in the Final Order and the same
has not been challenged by the Defendant No. 1/9 in
an appeal. Thus, the order of the Subordinate Court,
as far as it concerns the Defendant No. 1/9, has
become final and it has been declared, vide the Pursis
at Exhibit 83, by the Plaintiffs themselves that we the
Appellants do not have any objection or grievance if an
order, as may be required, is issued in the interest of
justice for drawing of a decree against the Defendant
No. 1/2 to 1/9. Therefore, in view of all the above
stated facts, whatever order, with regard to the
Defendant No. 1/2 to 1/9, has been passed by the
court below is upheld and it seems appropriate to
dismiss the appeal preferred by the Appellant, as far
as it concerns the Defendant No. 1/1."
15. Apt to note that issue no.2 was answered affirmative in
favour of the plaintiff and against the defendants. When this
issue was answered in favour of the plaintiff and against
defendants, defendant nos.1/9 - Kiritkumar Shantilal Rana was
party in the suit proceedings. He did not challenge this finding
before learned Appellate Court. Learned Appellate Court as per
aforesaid observations confirmed decree passed by learned Trial
Court and also against defendants including defendant no.1/9 -
Kiritkumar Rana. The findings has not been challenged by
defendant no.1/9 before this Court by separate Revision
Application.
16. In juxtaposition of this factual situation, what could be
noticeable that plaintiff was denied from taking possession of
demise premises on the ground that widow of deceased -
Shantilal Rana was living in demise premises. Since she is no
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more finding to issue no.2 and confirmed by learned Appellate
Court in para 14 comes into picture and it gives revisionist
complete decree of eviction against rest of the defendants. The
reason is obvious that the learned Trial Court believed that
except widow of deceased - Shantilal Rana viz. Dahiben who has
no alternate and suitable accommodation but other legal heirs of
deceased - Shantilal Rana have alternate and suitable
accommodation.
17. The findings drawn by the learned Trial Court in suit
proceedings and confirmed by learned Appellate Court, leaves no
alternative to this Court except to pass order to the effect that
appellants herein - landlord are entitled to seek eviction of
demise premises forthwith.
18. Accordingly, the present Revision Application is allowed.
Judgment and decree passed by learned Trial Court and
confirmed by learned Appellate Court is modified to the aforesaid
extent.
(J. C. DOSHI,J)
SATISH
