Gujarat High Court
Pravinbhai Gordhanbhai Varu vs Jashwantsinh Tapubhai Gohel on 16 October, 2025
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C/SA/275/2025 JUDGMENT DATED: 16/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 275 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 275 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2025
In R/SECOND APPEAL NO. 275 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER sd/-
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Approved for Reporting Yes No
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PRAVINBHAI GORDHANBHAI VARU
Versus
JASHWANTSINH TAPUBHAI GOHEL
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Appearance:
MR PRATIK Y JASANI(5325) for the Appellant(s) No. 1
MR DIPAL R RAVAIYA(6532) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 16/10/2025
ORAL JUDGMENT
1. The present Second Appeal is filed under Section 100 of the
Code of Civil Procedure, 1908 (for short "the Code")
challenging the judgment and decree dated 08.05.2025, passed
in Regular Civil Appeal No.21 of 2023, passed by 7 th
Additional District Judge, Rajkot, whereby the said appeal has
been rejected and the judgment and decree dated 28.12.2022
passed in Regular Civil Suit No.87 of 2010, by 10 th Additional
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Senior Civil Judge, Rajkot has been confirmed.
2. For the sake of brevity and convenience, the parties are
referred to as per their original status as that in the suit.
3. The brief facts arising in the present Second Appeal are that
the plaintiff filed suit against the defendants for recovery of
possession and declaration and permanent injunction with
respect to the suit property.
4. It was the case of the plaintiff that he has given the suit
premises to the defendant and rent note was executed between
the plaintiff and defendant on 11.10.2002 and that the
defendant had given the shop to unknown persons and those
unknown persons were doing illicit, illegal liquor business in
the suit premises and for that offence had been registered
against one Aashif Haji Bhai Shekh in Pradhyuman Nagar
Police Station vide, Crime Registration No.219/2009 dated
29.11.2009, under Section 66(b), 65(a)(e), 116(b) of the
Prohibition Act and illegal liquor bottles were found out from
the rented premises and ultimately the plaintiff issued legal
notice, dated 12.03.2010, to terminate the tenancy of the
defendant and asked the defendant to handover the possession.
The said notice was replied by the defendant, vide reply, dated
20.03.2010 and as the defendant did not comply with the said
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notice and handover the possession of the suit property, the
plaintiff filed civil suit for possession and in the said suit the
Trial Court framed issues vide Exhibit 59 as under:
"1. Whether the Plaintiff proves that the Plaintiff had
given the disputed shop premises of the suit property to
the Defendant on rent from 11/10/2002 and he is entitled
to obtain possession thereof?
2. Whether the Court is barred from hearing the suit
of the Plaintiff due to lack of jurisdiction?
3. Whether the suit of Plaintiff is legally
maintainable?
4. Whether the Plaintiff is entitled to the relief
sought?
5. What Order and Decree?"
5. The plaintiff examined himself, vide Exhibit 29 and the
witness of the plaintiff was examined, vide Exhibit 75. The
defendant examined himself vide Exhibit 78 and after
considering the oral evidence and documentary evidence and
giving finding on all the issues, the Trial Court allowed the
said suit and directed the defendant to handover the peaceful
possession and vacant possession of the suit property to the
plaintiff.
6. Aggrieved by the said judgment and decree passed by the Trial
Court, the defendant filed Regular Civil Appeal No.21 of 2023
and after re-appreciating the evidence, the First Appellate
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Court dismissed the said appeal and confirmed the judgment
and decree passed by the Trial Court in Regular Civil Suit
No.87 of 2010, hence the present Second Appeal.
7. Learned advocate for the defendant has mainly argued that the
defendant is a tenant in the suit property and that the
possession of the property could not have been taken from the
defendant in view of the lease deed produced vide Exhibit 37.
Moreover, it has also been argued that the defendant has been
regular in paying the rent, and the defendant vide Exhibit 85 to
93, has produced pursis and receipts to prove the fact that the
defendant has paid the entire amount of rent. Moreover, it has
also been argued that the person who has been found guilty is
neither related to the defendant nor is the tenant in the suit
premises, and therefore, only on the ground that offence was
registered against Aashif Shekh and that liquor bottles have
been found from the suit property, the plaintiff does not have
right to terminate the tenancy and the Trial Court and the First
Appellate Court could not have granted a decree of eviction of
handing over the possession to the plaintiff on the ground of
offence being registered against one Aashif Shekh. Moreover,
it has also been argued that, if the rent note produced vide
Exhibit 37 is taken into consideration, no fixed date of
termination has been stated in the said rent note and therefore,
the plaintiff could not rely on the said rent note and could not
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have terminated the tenancy in view the same, it has been
argued that the present Second Appeal be allowed on the
following substantial question of law:
(i) Whether Ld. Trial court erred in holding
defendant guilty of subletting and illegal business
being carried by third party and thereby he liable
for eviction and that too without framing any of
such issues;
(ii) Whether Ld. Trial court erred in taking resort
to the principal available under the Bombay Rent
Act despite the fact that same has already hold
that Bombay Rent Act is not applicable to the
case on hand;
(iii) Whether Ld. Trial court erred in holding
notice at Exh.49 issued under section 106 of
Transfer of Property Act as valid and termination
of tenancy pursuant thereto is legal simply by
ignoring the section 108(j) of Transfer of
Property Act;
(iv) Whether Ld. Trial court erred in hold that
defendant has impliedly in breach of condition of
rent note at Exh.37 in absence of
any such specific issue being framed or raised by
plaintiff;
(v) Whether Ld. Trial court erred in shifting the
burden of proof to the defendant by misreading
the provision of section 101 to 103 of Evidence
Act and thereby wrongly taking resort of section
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114 of Indian Evidence Act;
(vi) Whether both the courts below have erred, in
the facts and circumstances of the present case,
in allowing the suit of the respondent and
whether the Appellate Court has erred, in the
facts and circumstances of the present case, in
not interfering with the erroneous and improper
judgment and order passed by the Trial Court,
while exercising powers u/s.96 of CPC.
(vii) Whether the courts below have erred in not
appreciating the evidence, oral as well as
documentary, produced by the appellant in its
true perspective while passing the impugned
order.
(viii) Whether the courts below have erred in
passing decree of eviction based on consideration
of irrelevant facts and non-consideration of
relevant facts.
(ix) Whether the Ld. Judge has erred in not
framing issues and points for determination as
required under Order 41 Rule 31 of Code of Civil
Procedure?
(x) Whether the Ld. Appellate Judge has
misinterpreted the scope and ambit of provisions
of S.96 of CPC while passing the impugned
order?
8. Per contra, learned advocate for the plaintiff has argued that
there are no substantial questions of law involved in the
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present Second Appeal, in view of the fact that there is neither
any subsisting agreement between the plaintiff and the
defendant and the fact that the plaintiff has already terminated
the tenancy, which was a monthly tenancy and therefore, the
present Second Appeal is required to be dismissed.
9. The learned advocate for the plaintiff has argued that, if the
entire case of the defendant is taken into consideration, the
defendant has come forward with the case that the defendant is
in possession of a property by way of rent note, produced vide
Exhibit 37, but the fact remains that the said rent note is
neither registered under the Registration Act, if the defendant
is claiming that the same is beyond a period of 12 months, the
Court cannot consider the said rent note as the said rent note is
not registered agreement under the Registration Act.
10. Moreover, the rent note has to be registered, if the same is
exceeding one year and as per the defendant, no date has been
stated in the said rent note, the same will have to be
compulsorily registered under the provisions of the Section
17(d) of the Registration Act and therefore, it has to be
presumed that the said rent note is less than 12 months and the
said period, having already expired, there is no subsisting
agreement between the plaintiff and the defendant and
therefore, the present Second Appeal is required to be rejected.
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11. Having heard learned advocate for the parties and having
considered the judgement and decree passed by the Trial Court
and confirmed by the First Appellate Court, the fact remains
that the defendant is in possession of the suit property by
virtue of the rent note dated 11.10.2002, and it is a case of the
plaintiff that defendant had given the said premises to
unknown persons and they are doing illegal business of liquor
in the said premises, and a criminal complaint to that effect has
been filed as bottle of illicit liquor was found in the suit
premises.
12. The plaintiff had also issued notice to the defendant
terminating the tenancy by notice dated 12.03.2010, for
vacating the suit premises and therefore, the plaintiff had filed
the suit for possession, if the facts on record are taken into
consideration, it has come on record that F.I.R., was filed
against one Asif Haji Shekh, which is produced vide Exhibit
38 and said Asif Shekh had accepted his guilt and was
sentenced and fine of Rs.500/- was paid by him.
13. The defendant in his cross-examination has not stated anything
on the fact that he did not know about the incident. Though the
defendant has denied the fact that he has sublet the property,
but the fact remains that the defendant has not produced any
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documents to show and suggest as to what business and how
the business is carried out by the defendant in the premises.
The other factor which also will have to be taken into
consideration is that, there is no subsisting agreement between
the plaintiff and defendant and though the agreement did not
state any timeframe, and that there was no fixed period stated
in the rent note, for the fact that the said rent note, if it is
exceeding one year to be compulsory registered and unless and
until the same is registered, this Court could not take into
consideration the said document and therefore, there were no
subsisting between the plaintiff and defendant and therefore,
the Trial Court and the First Appellate Court allowed the suit.
14. The protection of the Court cannot be extended to a person
who does not have a subsisting rent agreement, irrespective of
long possession, if the person is allowed to stay in the
premises, the said person does not acquire title of the property.
15. The provisions of section 100 of the Code of Civil Procedure
relates to Second Appeal and sub section (3) provides that in
an appeal under this section memorandum of appeal shall state
precisely the substantial question of law that is involved in the
appeal and sub section (4) provides that when the High Court
is satisfied that a substantial question of law is involved in any
case, it shall formulate that question, and therefore, a Second
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Appeal is admissible provided substantial questions of law are
involved and/or from the finding and reasoning of the
judgment and decree of the Court below, there are any
substantial question of law that arises, therefore, Second
Appeal is required to be admitted only if the same involves
substantial question of law.
16. In the present case, the proposed substantial question of law
which are formulated in the memorandum of appeal are in fact
not substantial question of law, but the same are question of
fact and the power that can be exercised under Section 100 of
the Code of Civil Procedure is confirmed to substantial
question of law. In the present case, there are no substantial
question of law which can be raised, so as to enable this Court
to admit the appeal. It is pertinent to note that the scope of
Second Appeal under the provisions of section 100 of the
Code of Civil Procedure are limited and the same can only be
if it involves at the stage of judgment substantial question of
law.
17. Moreover, even in case of concurrent findings of fact are
involved in the judgments the same can be interfered if the
said findings are perverse but the said perversity should be
apparent on the basis of the record.
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18. In the present case, when it has been proved by the plaintiff
that the possession of the premises was without any subsisting
agreement and the fact that even the defendants have not
proved that they were statutory tenant of the premises, the said
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.
19. Moreover, as per the well settled decisions of this Court as
well as the Hon'ble Apex Court, the Court ordinary 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 been done.
20. 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
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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."
21. 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."
22. Considering the submissions made and after examining the
findings of both the Courts below on the issue raised in the suit
and upon examining of the judgment and orders of both the
Courts below, this Court is of the considered opinion that the
learned advocate for the defendant is unable to point out any
infirmity, perversity or in-proprietary in the concurrent finds
of the fact recorded by both the Courts below, not only that,
the learned advocate for the defendant is unable to show that
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the findings recorded by the learned Courts are without any
evidence or there is any illegality in the findings.
23. 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
defendants 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.
24. In view of the above, Civil Application stands rejected.
sd/-
(SANJEEV J.THAKER,J)
URIL RANA
