Gujarat High Court
Santoshkumar Tungnath Mishra vs Lhs Of Decd. Mataprasad Oriprasad ... on 20 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1497 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/FIRST APPEAL NO. 1497 of 2025
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2025
In R/FIRST APPEAL NO. 1497 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 3 of 2025
In R/FIRST APPEAL NO. 1497 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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SANTOSHKUMAR TUNGNATH MISHRA
Versus
LHS OF DECD. MATAPRASAD ORIPRASAD SHUKLA & ORS.
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Appearance:
HARSH K RAVAL(9068) for the Appellant(s) No. 1
DECEASED LITIGANT for the Defendant(s) No. 1
NILAY H PATEL(7856) for the Defendant(s) No. 1.1,1.2,1.3,1.4
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 20/11/2025
ORAL JUDGMENT
1. The present appeal is filed under Section 96 of the
Code of Civil Procedure, 1908, challenging the
judgment dated 28.03.2025 passed by the learned
City Civil Court, Ahmedabad below Exhibit 78, and
the decree dated 09.04.2025 below Exhibit 79. By
the said judgment and decree, the suit instituted by
the respondent-original plaintiff for declaration and
possession has been decreed, directing the present
appellant to hand over peaceful and vacant
possession of the disputed premises, being Room No.
489/29, to the plaintiff within a period of 30 days
from the date of the order. The learned Court has
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further held that the plaintiffs are entitled to recover
mesne profits at the rate of Rs.500/- per month for 41
months, aggregating to Rs.20,500/-, and thereafter at
the rate of Rs.500/- per month from the date of filing
of the suit till the actual delivery of possession by the
defendant to the plaintiff.
2. Facts in a nutshell are narrated as under:
2.1. The respondent-plaintiff is the owner and
possessor of the suit property consisting of 52
rooms admeasuring a total area of 1672 square
meters situated at Maninagar (East Khokhra),
Ahmedabad, known as Naamdar Bhavan. The
plaintiff had purchased the property from the
original owner. Out of the said rooms, one room
bearing No. 489/29 (the suit property) was given
on rent to Shri Gaurishankar Madhavprasad
Pandey, who, upon closure of the mill where he
was employed, left for his native place in Uttar
Pradesh after locking the premises.
2.2. Shri Gaurishankar Pandey returned in the year
2001 and met the plaintiff, expressing willingness
to hand over the suit premises along with
possession on payment of Rs.30,000/-. The plaintiff
agreed, paid the said amount, and on 06.11.2001
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Shri Gaurishankar Pandey handed over vacant and
peaceful possession of the suit premises to the
plaintiff. He also executed a written declaration
stating that he had no right, title or interest
remaining in the premises and acknowledging
receipt of Rs.30,000/- towards the fixed furniture
and fixtures installed by him. The said declaration
was executed before the learned Executive
Magistrate.
2.3. The appellant-original defendant thereafter
introduced himself as a relative of Shri
Gaurishankar Pandey and attempted to take
possession of the suit premises. On 07.01.2002,
the plaintiff called the police and, with their
assistance, the defendant was restrained from
entering the premises. The plaintiff then lodged a
complaint before Amraiwadi Police Station;
however, no action was taken.
2.4. To prevent trespass, the plaintiff filed Civil Suit
No.138 of 2001 against the defendant. At that
time, as the plaintiff had purchased the property
through a power of attorney and a dispute had
arisen between the plaintiff and the original owner
leading to Civil Suit No.3142 of 2002, the plaintiff
withdrew Civil Suit No.138 of 2001 by reserving
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legal right to keep open regarding the suit
property, which was permitted by the Court on
03.08.2010. Ultimately, a decree came to be
passed in favour of the plaintiff in Civil Suit
No.3142 of 2002, and in Execution Petition No.466
of 2007, the Court Commissioner executed the
sale deed in favour of the plaintiff on 30.01.2010.
2.5. Thereafter, the plaintiff filed the present suit
seeking declaration and possession of the suit
premises from the defendant, contending that the
defendant is a trespasser and liable to pay mesne
profits at the rate of Rs.500/- per month.
2.6. The present appellant-defendant appeared
before the Civil Court and in his written statement
contended inter alia that the Civil Court lacked
jurisdiction and that only the Small Causes Court
had jurisdiction since the appellant was a tenant of
the erstwhile owner. It was further contended that
the suit was barred by res judicata and Order II
Rule 2 of the Code of Civil Procedure. The
defendant claimed that he was a tenant of the suit
premises paying monthly rent of Rs.45/- to the
erstwhile owner, namely Shri Mukeshbhai
Chandubhai Gandhi and others. It was also
pleaded that the cause of action had arisen in
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2002 and hence the suit was barred by limitation.
2.7. To prove his case, the plaintiff examined himself
at Exhibit 35 and produced various documents,
including the rent receipts in the name of tenant
Shri Gaurishankar Pandey (Exh. 44, 45),
undertaking of handing over possession (Exh. 46),
police complaint (Exh. 47), certified copies of the
civil suit and withdrawal pursis (Exh. 48, 49), sale
deed of the entire chol including the suit premises
(Exh. 50), and the index of the said sale deed (Exh.
51).
2.8. In defence, though the appellant chose not to
examine any witness, he produced several
documents such as ration card (Exh. 58), election
card (Exh. 59), election card of his wife (Exh. 60),
voter ID of a family member (Exh. 61), driving
licence (Exh. 62), birth certificate of his daughter-
in-law (Exh. 63), copy of rent receipt (Exh. 64),
notice issued by the erstwhile owner (Exh. 66),
property tax bills for 2004-2005 to 2015-2016 and
2016-2017 to 2019-2020 (Exh. 67, 68), and
electricity bills for the relevant period (Exh. 69,
70).
2.9. Considering the evidence on record, the learned
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Trial Court decreed the suit in favour of the
plaintiff, which is the subject matter of challenge
before this Court.
3. Heard the learned advocate Mr.Hardik Raval for the
appellant and learned advocate Mr.Nilay Patel for the
defendants.
4. Learned advocate Mr. Hardik Raval submits that the
present appellant has been in settled possession of
the suit property since long. It is contended that the
earlier Civil Suit No.138 of 2002, instituted for the
very same cause of action as narrated in the present
proceedings, came to be withdrawn unconditionally,
and despite such unconditional withdrawal, the
plaintiff has chosen to institute a fresh suit in the
year 2010 after purchasing the entire chawl under a
registered sale deed. Learned advocate Mr. Raval
further submits that, in absence of any explanation
for the inordinate delay or any demonstration of a
fresh cause of action, the present suit is clearly
barred by limitation.
4.1. It is further submitted by the learned advocate
Mr. Raval that the documentary evidence
produced by the plaintiff does not, in any manner,
establish that the appellant was not a tenant.
Learned advocate Mr. Raval submits that, only
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with a view to evict the appellant without adhering
to the mandatory procedure prescribed under the
Gujarat Rents, Hotel and Lodging House Rates
Control Act, 1947, the plaintiff has instituted a
fresh suit, which the learned trial Court has
allowed in a casual and perfunctory manner,
without appreciating the evidence on record.
4.2. Learned advocate Mr. Raval further submits that
the appellant had instituted Standard Rent
Application No.180 of 2011 before the learned
Small Causes Court seeking fixation of standard
rent, which came to be rejected. It is submitted by
the learned advocate Mr. Raval that the erstwhile
owner never disputed either the appellant's
possession or the relationship of landlord and
tenant. Learned advocate Mr. Raval submits that
the sale deed executed pursuant to the Court's
order reflects the name of a different tenant, and
the learned trial Court has failed to examine the
rent receipt of 2001, which records the
defendant's tenancy under the previous owner.
4.3. In view of these submissions, learned advocate
Mr. Raval contends that the impugned judgment
suffers from gross legal infirmities and therefore
deserves to be quashed and set aside, and the
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present appeal deserves to be allowed.
5. Per contra, learned advocate Mr. Nilay Patel,
appearing for the respondents, submits that the
erstwhile tenant, Shri Gaurishankar Madhavprasad
Pandey, had voluntarily handed over vacant and
peaceful possession of the suit property to the
plaintiff upon receiving an amount of Rs.30,000/-, an
undertaking to that effect was duly executed before
the learned Executive Magistrate. Learned advocate
Mr. Patel further submits that though the defendants
have pleaded in the written statement that the suit is
barred by limitation and the principles of res judicata,
the appellant has not entered the witness box, and
therefore, has failed to discharge the burden of
proving such pleas.
5.1. It is further submitted by the learned advocate
Mr. Patel that the rent receipts produced by the
appellant are forged and fabricated, inasmuch as
the original counterfoils of the same receipts were
produced by the plaintiff before the learned trial
Court, which demonstrate that the appellant has
interpolated his name alongside the name of the
erstwhile owner with an oblique motive. Learned
advocate Mr. Patel further contends that Civil Suit
No.138 of 2002 was permitted to be withdrawn by
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reserving legal rights to be opened, as the said
suit was based on a power of attorney which itself
was the subject matter of dispute in Civil Suit
No.2257 of 2010 filed by the original owner.
Subsequently, Civil Suit No.2257 of 2010 was
decreed in favour of the plaintiff, and pursuant
thereto, the learned Court Commissioner executed
the sale deed, wherein the name of the tenant in
respect of the suit property is reflected as Shri
Gaurishankar Madhavprasad Pandey.
5.2. Learned advocate Mr. Patel further submits that,
with an ulterior motive, though Shri Pandey had
executed an undertaking and handed over
possession, he later attempted to trespass into the
suit property through the present appellant, who is
admittedly his brother-in-law. It is submitted by
the learned advocate Mr. Patel that the appellant
has never been a tenant of either the erstwhile
owner or the plaintiff. On the contrary, the
appellant attempted to forcibly occupy the
premises in the year 2001. During the panchnama,
only two glasses, a water bottle, and a ration card
were found, showing that the appellant had
surreptitiously attempted to create false evidence
of occupation, which the learned Court
Commissioner duly recorded.
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5.3. Learned advocate Mr. Patel submits that the
appellant has not produced any cogent or
admissible evidence to establish that he was a
lawful or permissible tenant. Instead of proving the
documents in accordance with law, he merely
produced photocopies before the trial Court, which
cannot substitute primary or duly proved evidence.
Hence, the learned trial Court has rightly decreed
the suit in favour of the plaintiff.
5.4. It is further submitted by the learned advocate
Mr. Patel that the appellant himself owns a
government-allotted residential flat, and this fact
came to light after the decree. Therefore, the
respondents filed an application for additional
evidence, producing the sale deed of Flat No.305,
Block No.12, LIG-30, near Abhilasha Residency,
India Colony Road, Nikol, along with electricity
bills, tax bills, photographs of the nameplate, and
payment receipts. The said fact is also
corroborated by the marriage invitation card of the
appellant's son, which reflects the said residential
address.
5.5. Learned advocate Mr. Patel, therefore, submits
that the appellant is a rank trespasser, who
attempted to usurp the suit property without any
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semblance of right, title, or tenancy. In the
aforesaid circumstances, no interference is
warranted, and the present appeal deserves to be
dismissed.
6. Having considered the arguments advanced by the
learned advocates for the respective parties, it
emerges from the record that Civil Suit No.2257 of
2010 came to be filed by the plaintiff-respondent on
01.10.2010 seeking declaration, possession, mesne
profits and permanent injunction against the present
appellant. It is the case of the plaintiff that he is the
owner of the entire property and that Shri
Gaurishankar Madhavprasad Pandey was the tenant
of the suit premises, who had handed over vacant
and peaceful possession on 06.11.2001, for which a
kabja karar was executed before the learned
Executive Magistrate on receiving the amount of
Rs.30,000/- from the plaintiff.
6.1. It is an admitted before this Court by the
learned advocate that the present appellant is the
brother-in-law of the said Shri Gaurishankar
Madhavprasad Pandey and had attempted to
forcibly take possession of the suit property,
compelling the plaintiff to lodge a police complaint.
However, no effective steps were taken, except
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that a surety bond under Section 151 of the Code
of Criminal Procedure, 1973 came to be executed
before the learned Magistrate.
6.2. Prior thereto, Civil Suit No.138 of 2001 had been
filed on the basis of a power of attorney executed
by the original owner, Mukeshbhai Chandubhai
Gandhi. Subsequently, the original owner
instituted another suit being Civil Suit No.2257 of
2010 disputing the said power of attorney against
the present plaintiff. The said suit was ultimately
decreed in favour of the plaintiff, and pursuant to
the order of the Court, the Court Commissioner
executed the sale deed in favour of the plaintiff.
On perusing the sale deed produced at Exhibit 50
it reveals that the names of all tenants are
mentioned in the schedule, and at Serial No.29,
pertaining to the suit property, the name reflected
is Shri Gaurishankar Madhavprasad Pandey. Civil
Suit No.138 of 2001 came to be withdrawn by
filing a pursis, which is reproduced hereinbelow:
"In this suit, I, the plaintiff submit the pursis that,
I, the plaintiff withdraw the aforementioned suit
unconditionally today by keeping my legal rights reserved
towards the suit property. In this regard, Your Honour
may be pleased to pass an appropriate order."
7. It is not in dispute that though the appellant had
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raised contentions in the written statement regarding
the bar of res judicata, jurisdiction, and the
applicability of Order XXIII Rule 1 of the Code of Civil
Procedure, however, no oral evidence was adduced
before the learned trial Court in support of such
contentions.
8. The moot question that arises for consideration
before this Court is whether, in the absence of any
evidence led by the appellant to substantiate the
pleadings taken in the written statement, can it be
said that the learned trial Court has committed an
error in decreeing the suit in favour of the plaintiff?
9. This Court has considered the decision rendered by
the Apex Court in the case of Dagadbai (dead) by
legal representatives vs. Abbas alia Gulab
Rustam Pinjari, reported in (2017) 13 SCC 705
wherein the Apex Court has held as under:
"15. Third, the plea of adverse possession being essentially a
plea based on facts, it was required to be proved by the party
raising it on the basis of proper pleadings and evidence. The
burden to prove such plea was, therefore, on the defendant who
had raised it. It was, therefore, necessary for him to have
discharged the burden that lay on him in accordance with law.
When both the courts below held and, in our view, rightly that
the defendant has failed to prove the plea of adverse possession
in relation to the suit land then such concurrent findings of fact
were unimpeachable and binding on the High Court.
10. In view of the aforesaid decisions, it can be said
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that under Order VI Rule 1 of the Code of Civil
Procedure, the parties are required to lead evidence
in support of their pleadings, and the burden to
establish the contentions raised therein lies upon the
party asserting them. In absence of such evidence,
the party would fail to discharge the burden. A party
who does not enter the witness box cannot be heard
to say that the pleadings stand proved.
11. If one examines the contentions regarding
jurisdiction, it emerges that the appellant has not
adduced any evidence to demonstrate the existence
of a landlord-tenant relationship between the plaintiff
and the appellant. In fact, the application filed by the
appellant for fixation of standard rent has also been
rejected. In this background, it cannot be said that
the learned Court lacked jurisdiction to entertain and
decide the suit filed for declaration, possession,
mesne profits and permanent injunction against the
appellant.
12. So far as other contention with regard to res
judicata is concerned, at this stage, reference of the
decision rendered by the Apex Court in case of Syed
Mohd. Salie Labbai v. Mohd. Hanifa and Others,
reported in (1976) 4 SCC 780 is required to be
made, wherein the Apex Court has held as under:
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"7
In the light of these arguments of the parties and the history
of a the case, we would now proceed to decide the points in
controversy in this case. We would first deal with the
question of res judicata. In support of this plea the
defendants have relied on Exts. B-5 to B-9, B-12, B-16, B-
28, B-30, B-31 and B-73 in support of their case that these
judgments constitute and operate as res judicata, and
particularly judgments given in those suits which were
brought in representative capacity under O. 1, r. 8 of the
Code of Civil Procedure. Before we analyse these judgments,
it may be necessary to mention that before a plea of res
judicata can be given effect, the following conditions must
be proved-
(1) that the litigating parties must be the same;
(2) that the subject-matter of the suit also must be; identical;
(3) that the matter must be finally decided between the
parties; and
(4) that the suit must be decided by a court of competent
jurisdiction."
13. Admittedly, the earlier suit which is filed was not
adjudicated finally. It was withdrawn by the plaintiff
on filing the pursis keeping rights open with regard to
the suit property. In absence of final adjudication
between the parties in the opinion of this Court the
bar of res judicata would not apply and therefore, the
said contention is untenable in the eye of law.
14. With regard to the contention regarding
application of Order XXIII Rule 1 of the Code of Civil
Procedure is concerned, it is not in dispute that while
filing the pursis for withdrawal of Civil Suit No.138 of
2002, it was specifically stated that the "suit is
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unconditionally withdrawn by keeping legal rights
reserved towards the suit property." Merely because
the word "unconditionally" is used would not mean
that the suit was withdrawn without reserving the
liberty to file another suit. The pursis itself clarifies
that the plaintiff had expressly reserved his legal
rights qua the suit property.
15. The Apex Court in Sugandhi (Dead) by LRs.
and Another v. P. Rajkumar, Represented by
his Power Agent Imam Oli, reported in (2020) 10
SCC 706, has held that procedure is the handmaid of
justice and that procedural or technical hurdles
should not be permitted to defeat the cause of
substantial justice. The Apex Court has further
observed that unless a procedural lapse results in
serious prejudice to the adversarial party, the Court
must lean in favour of advancing substantial justice
rather than resting its conclusion on technicalities. It
has been emphasised that litigation is essentially a
journey in search of truth, which forms the very
foundation of justice, and therefore, the Court must
take appropriate steps to unearth the real truth
underlying every dispute.
16. The Apex Court in the case of Ashok Kumar
Kalra v. Wing Cdr. Surendra Agnihotri and
Others, reported in (2020) 2 SCC 394, has
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categorically held that procedural justice is designed
to fortify and advance the cause of substantive
justice. The Apex Court has observed that the
procedural fairness extended by courts enhances the
legitimacy of the justice-delivery system and
commands confidence of the general public.
Simultaneously, it has been cautioned that legislative
intent to ensure certainty and clarity must not be
undermined. Unrestricted or unregulated invocation
of substantive justice, in the guise of liberal
procedural interpretation, may itself become
counterproductive and lead to uncertainty. The Apex
Court has thus emphasised the need for courts to
harmoniously balance procedural justice with
substantive justice so as to ensure an effective,
coherent and participatory judicial system. It is
further held that no provision of procedural law
should be interpreted in a manner that renders the
Court powerless. Rather, the procedural framework
confers ample discretion upon civil courts in relation
to procedural aspects. As reiterated by the Apex
Court, procedural law is meant to be a servant and
not a tyrant; an aid to justice and not an impediment.
17. It is contended by the learned advocate Mr.
Patel for the defendant that though the learned Trial
Court framed ten issues, it has discussed only Issue
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Nos. 1 to 5, and has answered the remaining issues
in a casual manner. Be that as it may, while
answering each issue, the learned Trial Court was
conscious of the fact that the present appellant is a
trespasser, who has encroached upon the property
without any authority or payment, and that despite
having an alternative property, he has not vacated
the suit premises even after a decree was passed in
favour of the plaintiff.
18. In the opinion of this Court, procedural rules
should not be interpreted so as to defeat justice,
rather than furthering it. Procedural law is meant to
act as a lubricant in the administration of justice.
Equity and justice should remain the foremost
considerations while construing procedural rules,
without nullifying the object of the Legislature in its
entirety. In that background, the impugned judgment
and decree deserve to be upheld, and the appeal
requires to be dismissed.
19. Resultantly, the present appeal is dismissed.
The judgment and decree passed below Exhibits 78
and 79, dated 28.03.2025 and 09.04.2025
respectively, in Civil Suit No. 2257 of 2010 by the
learned City Civil Court, Ahmedabad, are confirmed.
The Civil Applications shall also stand disposed of
accordingly.
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20. Learned advocate Mr.Harsh Raval requested for
stay of this order for the appeal period as he was in
the possession of the property. In view of the fact
that the present appellant would not have any legal
right to claim the possession, therefore, the request
is not acceded.
(M. K. THAKKER,J)
M.M.MIRZA
