Gujarat High Court
Bipinbhai Popatlal Chhantbar vs Sureshbhai Mohanbhai Ghelani ... on 15 October, 2025
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C/SA/408/2025 JUDGMENT DATED: 15/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 408 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 408 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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BIPINBHAI POPATLAL CHHANTBAR
Versus
SURESHBHAI MOHANBHAI GHELANI (DASHASHRIMALI VANIK
MAHAJAN TRUST) & ORS.
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Appearance:
MR PARICHAY N ASHAR(13304) for the Appellant(s) No. 1
MR PJ KANABAR(1416) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 15/10/2025
ORAL JUDGMENT
1. The present Second Appeal is filed under Section 100 of the Code
of Civil Procedure, 1908, challenging the judgment and decree dated
26.06.2025, passed by the 4th Additional District Judge, Amreli in RCA
No. 4 of 2015, whereby the Appellate Court confirmed the judgment and
decree dated 31.12.2014, passed by the 4 th Additional Senior Civil
Judge, Amreli in Regular Civil Suit No. 183 of 2002.
2. For the sake of brevity, the parties are referred to as per their
original status as in the Suit.
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3. The brief facts giving rise to the present Second Appeal are that the
plaintiff filed a suit for declaration and permanent injunction. The
plaintiff's case is that the suit property was used by his father for more
than 50 years under tenancy rights. Within the rented premises, there was
an open compound adjacent to the suit-shop. The plaintiff avers that he
used this open compound without any interruption for more than 50
years, conducting a business of painting and colour work and drying saris
therein.
4. It is alleged that the defendant trust and its trustees illegally
demolished the southern side of the property and also the western side
having an entrance gate. The plaintiff contended that the defendants
attempted to take possession by illegal means and were trespassing on the
said open compound after demolishing the wall which was allegedly in
the possession of the plaintiff. Consequently, the plaintiff sought a
declaration that the defendants had no right to demolish the southern and
western walls in the open compound, and that they could not take
possession of the said open compound, which was allegedly used by the
plaintiff for more than 50 years.
5. The plaintiff also sought a mandatory injunction against the
defendants to reconstruct the western and southern side walls and to
reinstall the entrance gate on the western side of the wall. Furthermore, a
permanent injunction was sought to restrain the defendants from entering
the open compound and from obstructing or interfering with the
plaintiff's possession of the said open compound
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6. The defendants appeared in the said suit and filed their Written
Statement vide Exh. 32.
7. The Trial Court framed issues vide Exh. 75, which are as under:
(1) Whether the Plaintiff proves that he is in uninterrupted
possession and enjoyment of 'the Veranda' and 'the gated
Porch' situated to the North of the rented shop or not?
(2) Whether the Plaintiff proves that the Defendants have
no right to ingress the disputed gated porch under possession
of the Plaintiff ?
(3) Whether the Defendant Trust proves that the tenancy
right of the Plaintiff subsists only to the extent of possession
of the rented shop and the Plaintiff does not have any right as
to possession or enjoyment of the veranda and the gated
porch in capacity of the tenant ?
(4) Considering the nature of the disputed properties and
the relief prayed for, whether the Civil Court is vested with
the jurisdiction to trial the suit?
(5) Whether the Plaintiff is entitled to the relief as prayed
for?
(6) What order and decree ?
8. The plaintiff examined himself vide Exh. 87, and the witness of the
plaintiff was examined vide Exh. 139. The defendant examined himself
vide Exh. 145. After considering the oral evidence, the documentary
evidence, and giving findings on all issues, the Trial Court dismissed the
suit.
9. Aggrieved by the said judgment, the plaintiff filed RCA No. 04 of
2015. The First Appellate Court, after re-appreciating the evidence,
dismissed the appeal, thus leading to the present Second Appeal.
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10. The learned advocate for the plaintiff has mainly argued that the
plaintiff was a tenant in the suit premises, and was in possession of the
compound, lobby, and chamber of the compound. It was contended that
this property was part of the rented premises, and therefore, the
defendants could not demolish the compound adjoining the suit property.
11. It was also argued that the Trial Court and the First Appellate
Court failed to consider that the defendants' action of demolishing the
compound wall with a JCB machine was a blatantly illegal act carried out
without due process of law.
12. The learned advocate for the plaintiff submitted that both lower
courts misinterpreted tenancy rights by confining them solely to the built
shop premises, thereby ignoring the settled principle that tenancy includes
the underlying land and pertinent areas peacefully possessed by the
tenant.
13. It was further argued that the plaintiff had continuous peaceful
possession of the suit shop, along with the adjoining lobby (Osri) and
compound (fali) and two rooms, for over 50 years. It was submitted that
even a tenant in illegal occupation of any premises for a long period
cannot be dispossessed without due process of law.
14. A key contention raised was that the Trial Court and the First
Appellate Court failed to consider that no prior notice was issued to the
tenant before demolishing the compound walls.
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15. It was also argued that the lower courts ignored and discarded vital
documentary evidence, specifically the Municipal Assessment Register
entries (Exh. 89, 90, 91) and the panchnama, which were legally relevant.
The entries in the Municipal Assessment Register, being from the year
1960 (Exh. 89 to 91), clearly established the plaintiff's possession since
1960. Thus, it was argued that the lower courts seriously erred in
dismissing the suit, and the Second Appeal is required to be admitted on
the following substantial questions of law:
I. Whether a civil suit seeking a permanent injunction to
protect a tenant's peaceful possession and to restrain the
landlord from illegally demolishing a portion of the
tenanted premises is maintainable before the Civil Court,
and whether the jurisdiction of the Civil Court is barred by
the provisions of the Rent Act in such a case?
II. Whether the demolition of a compound wall in the
peaceful and long-standing possession of the appellant
without a valid court order or due process of law
constitutes a violation of the principles of natural justice,
and whether a person, even a trespasser, is entitled to due
process of law?
III. Whether the learned Trial Court and the learned First
Appellate Court committed a grave and substantial error
of law by failing to properly appreciate the evidentiary
value of the Municipal Assessment Register entries (Exh.
89, 90, and 91), which are official public records and were
not effectively rebutted by the defendants, thereby
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rendering the concurrent findings of fact perverse?
IV. Whether the learned Courts below erred in law by
failing to appreciate the legal effect of the long,
continuous, and undisputed possession of the compound
(osari) and lobby (fali) by the appellant for over 50 years,
which was known to the respondents, and whether such
possession, with the acquiescence of the landlord, must be
construed as part of the tenanted premises?
V. Whether the learned Courts below erred in disregarding
the legal effect of the temporary injunction that was
granted by the Trial Court and confirmed by the
Honourable High Court, and whether the finding of a
strong prima facie case for the appellant's possession and
enjoyment of the Suit Property should have been decisive
in the final judgment?
VI. Whether the learned Courts below committed a
substantial error of law by failing to appreciate that the
respondents, as self-appointed office bearers without any
legal authority or valid election as per the Public Trust
Register, had no legal right to demolish the suit property
walls and their actions were therefore ultra vires and
illegal?
VII. Whether the learned First Appellate Court committed
a serious procedural and legal error by failing to frame
proper and material points for determination as mandated
by Order 41, Rule 31 of the Code of Civil Procedure, 1908,
thereby vitiating the appellate judgment? VIII. Whether the
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learned Courts below's findings are perverse and
unsustainable in law as they relied solely on rent receipts
that do not describe the full premises, while ignoring the
corroborative evidence and the long course of dealing
between the parties?
IX. Whether tenancy rights extend beyond the built
structure to include the land beneath and adjacent areas,
such as the lobby and compound, when peacefully
possessed by the tenant for a long duration?
X. Whether a tenant in peaceful possession of the shop and
adjoining spaces for over 50 years can be summarily
evicted or subjected to demolition by the landlord without
compliance with statutory notice and due process?
XI. Whether demolition of premises by the landlord without
lawful eviction proceedings extinguishes tenancy rights
over the land and appurtenant spaces occupied by the
tenant? XII. Whether long peaceful possession of any
property creates any legal rights in favour of the
occupant?
16. The learned advocate for the defendants argued that the plaintiff is
merely the tenant of the shop, and that the plaintiff was in possession of
the open compound without any permission. It was highlighted that on
plain reading of the plaint, specifically Paragraph 1, indicates that the
plaintiff has only stated that he is occupying the shop as a tenant, but for
the open compound which was demolished, the plaintiff has not stated
that he is in possession of the said premises as a tenant.
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17. Furthermore, it was contended that if the plaintiff's case is that he
is a tenant in the premises, then the dispute being between the landlord
and the tenant, the same cannot be entertained by way of the present
Second Appeal, as the jurisdiction of the Civil Court is barred under the
relevant Rent Act provisions. Hence, the appeal should be dismissed.
18. It was also argued that the plaintiff cannot acquire the right of
tenancy for any property except that which is mentioned in the rent note.
By virtue of entries in the assessment register, the tenant has no right to
occupy the said premises, as the plaintiff only has a right to the shop and
no other right to use or occupy any other properties except the shop.
Therefore, it was submitted that there are no substantial questions of law
involved in the present Second Appeal, and it is required to be dismissed.
19. Having heard the learned advocates for the parties and having
considered the judgment and decree passed by the Trial Court and
confirmed by the First Appellate Court, the fact remains that the plaintiff
is a tenant of the shop. From a plain reading of the averments of the
plaint, it is clearly established that the plaintiff himself has stated before
the Court that he is a tenant of the said shop and is occupying the other
premises adjoining the said shop.
20. In view of the fact that there are no documents to support the
plaintiff's case that the adjoining compound was also given on rent to the
plaintiff, both the Trial Court and the First Appellate Court have found
that the plaintiff is unauthorisedly in possession of the compound, lobby,
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and chamber. Therefore, even as per law, possession for a longer period
does not give any legal right to retain possession.
21. The plaintiff himself has described the shop as the rented premises
and the other adjacent premises as only being in possession. Therefore,
just by mere occupation of the premises, the plaintiff does not have any
right in the premises.
22. Moreover, from the panchnama produced vide Exh. 131 and the
map produced vide Exh. 132, it has been proved that the new construction
of the southern compound wall and the western compound wall was made
of tin sheets over the open compound, and at the time of the institution of
the suit, there was no shade over the open compound.
23. In view of the foregoing, there are no substantial questions of law
involved in the present Second Appeal, and the Second Appeal is
required to be dismissed.
24. In the present case, 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
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been done.
25. 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."
26. 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."
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27. Therefore, also the plaintiff has miserably failed to show
that there is any substantial question of law involved in the
present appeal and the substantial question of law which has
been suggested in the memo of appeal are also not substantial
question of law and on facts and the said factual aspect have
well been considered by the Trial Court and the First Appellate
Court and, therefore, the present appeal requires to be
dismissed.
28. 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.
29. In view of the order passed in main matter, Civil
Application does not survive and stands disposed of
accordingly.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
