Gujarat High Court
Vijayvargiya Kusumben Chanchalbhai vs Dhariya Surendrasinh Mohansinh on 16 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 246 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
Yes
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VIJAYVARGIYA KUSUMBEN CHANCHALBHAI & ORS.
Versus
DHARIYA SURENDRASINH MOHANSINH
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Appearance:
ROHAN A SHAH(7497) for the Applicant(s) No. 1,2,3
RUSHABH H SHAH(7594) for the Applicant(s) No. 1,2,3
MR NILESH A PANDYA(549) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 16/10/2025
ORAL JUDGMENT
1. The present Revision Application is filed challenging the judgment
and decree dated 28.02.2022 passed by Principal Senior Civil Judge,
Bodeli, in Regular Civil Suit No.10 of 2019.
2. For the sake of brevity, the parties are referred to as per their
original status as that in the suit.
3. The brief facts arising in the present Revision Application are that,
the plaintiff filed Special Civil Suit No.441 of 2013, which was
renumbered as Regular Civil Suit No.10 of 2019, for recovery of
possession under Section 6 of the Specific Relief Act. It was the case of
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the plaintiff before the Trial Court that the plaintiff is the owner of shop
No.6, situated at Shree Neelkanth Complex Shopping Centre,
block/survey No.146/1 B. It was the case of the plaintiff before the Trial
Court that earlier, defendant No.3 was a tenant in shop No.17, and as the
plaintiff had to make new construction, the defendant No.3 had handed
over possession of the shop No.17 to the plaintiff.
4. Thereafter, the said shop No.17 was demolished and the plaintiff
has constructed a Shopping Centre "Shree Neelkanth Shopping Centre"
and constructed 9 shops in the said shopping centre. It was the case of the
plaintiff that suit shop No.6, always belonged to the plaintiff and the
plaintiff was in possession of the premises and that the said shop has
never been sold by the plaintiff to defendant.
5. The defendants had purchased shop No.5, from one Rubinabanu to
whom the plaintiff had sold the premises by way of registered sale deed
dated 16.03.2012. It was a case of the plaintiff that defendant
dispossessed the plaintiff from shop No.6 at Shree Neelkanth Shopping
Centre. Therefore, the suit was filed by the plaintiff for seeking
possession of the property under the provisions of Section 6 of the
Specific Relief Act, and after considering the oral evidence and
documentary evidence and giving findings on the issues that are framed
vide Exhibit 20, the Trial Court directed the defendant to handover the
peaceful possession of the suit property to the plaintiff and also declared
that the plaintiff is the owner of the suit premises, and directed the
defendants to pay an amount Rs.6,000/- per month as mesne profit from
02.07.2013, till the defendants hand over the peaceful and vacant
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possession of the premises and also granted an injunction in favour of the
plaintiff, restraining the defendants from transferring and selling the suit
property to a third party. Aggrieved by the said judgment and decree
passed by the Trial Court, the present Revision Application is filed.
6. The learned advocate for the defendants has argued that if the
entire plaint is taken into consideration, the plaintiff has not given any
date on which the plaintiff has been dispossessed from the suit property.
The plaintiff has also not proved the fact that the plaintiff was ever in
possession of the property. If the entire oral evidence and the
documentary evidence produced before the Trial Court is taken into
consideration, there is no iota of evidence, which has been produced by
the plaintiff to show and suggest that at any point of time, the plaintiff
was in actual possession of the suit premises and that the plaintiff has
been dispossessed within a period of six months from the date of filing
the suit, and therefore, the suit that has been filed by the plaintiff could
not have been allowed by the Trial Court under the provisions of Section
6 of the Specific Relief Act.
7. Learned advocate for the defendants has argued that defendant
No.3 was always in possession of the property i.e. shop No.17, and in
view of the mutual understanding and agreement between the plaintiff
and defendant No.3, the defendant No.3 had handed over shop No.17 to
the plaintiff for construction of a new building, and it was mutually
agreed that after the new construction, the plaintiff shall handover a new
shop i.e. shop No.6 to the defendant No.3, in place of shop No.17. It has
been argued by the learned advocate for the defendants that even from the
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bare reading of the plaint and oral and documentary evidence, it can be
clearly established that other than defendant No.3, who was tenant of
shop No.17, all other tenants of the plaintiff had handed over the
possession of their respective properties to the plaintiff for construction of
new building, and it was only the defendant No.3 who had not handed
over the premises, and thereafter, there was an understanding between the
plaintiff and the defendant No.3 whereby the possession of shop No.6,
was handed over by the plaintiff to the defendant No.3, and therefore, the
entire story of the plaintiff, that the plaintiff was in possession of the suit
property and that the plaintiff has been dispossessed from the suit
property on 02.07.2013 is a got-up story and the Trial Court could not
have allowed the said suit.
8. The learned advocate for the defendants has also argued that the
fact that the defendants have purchased shop No.5 and if the
measurement of shop No.6 and the rented premises i.e. old shop No.17,
are taken into consideration, both are the same and therefore, in lieu of
old shop No.17, the plaintiff has handed over shop No.6. Moreover, it has
been argued that the burden was on the plaintiff to show that the plaintiff
was in possession of the property and that the plaintiff has been
dispossessed from the suit property and that the plaintiff has been
dispossessed within 6 months from the date of filing the suit and the
plaintiff has been miserably failed in proving the said fact, the Trial Court
could not have allowed the said suit.
9. The learned advocate for the defendants has relied on the judgment
reported in 2018 SCC Online, Calcutta 6471 in the case of Ramesh
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Chand Koiri vs. Chandan Koiri and Others, wherein it has been held
that the question of investigation in the title of the suit property is
irrelevant. The learned advocate for the defendant has also relied on the
unreported judgment of High Court of Rajasthan at Jodhpur in S. B. Civil
Revision Petition No.176 of 2011 in the case of Abu Khan S/o. Chand
Khan vs. Ishaq Khan and Others; 2006 (3) A.P.L.J. 311 (HC) in the
case of Adapa Tatarao vs. Chamantula Mahalakshmi; 1993 (0) AIJEL-
HC 210160, in the case of Ramanlal Ambalal Patel vs. Hina Industries;
2013(9) SCC 221 in the case of Mohd. Mehtaba Khan and Others vs.
Khushnuma Ibrahim Khan and Others; (1999) 8 SCC 274 in the case of
Mahabir Prasad Jain vs. Ganga Singh.
10. In view of the same, it has been argued that the Court could not
have allowed the said suit, in view of the fact that the said suit was filed
under provision Section 6 of the Specific Relief Act and while deciding
the said suit, the Court has also decided the title and ownership of the
plaintiff and has also granted injunction in terms of the relief that has
been sought, and therefore, the Court has exceeded its power which the
Court could not have exercise under Section 6 of the Specific Relief Act
and the fact that the plaintiff has miserably failed in proving the fact that
the plaintiff was ever in possession of the property and that the plaintiff
has been dispossessed from the suit property within a period of six
months, having not been proved by the plaintiff, the judgment and decree
passed by the Trial Court is required to be quashed and set aside and the
present Civil Revision Application be allowed.
11. Per contra, the learned advocate for the plaintiff has mainly argued
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that the plaintiff is the owner of the suit property, and there is no iota of
evidence produced by the defendants to show their ownership to the suit
premises. The plaintiff has clearly stated that the plaintiff has been
dispossessed from the suit property, on 02.07.2013, and the fact that the
said suit shop has never been sold by the plaintiff, clearly established the
fact that the plaintiff was in possession of the suit premises. Though the
defendants have taken defence that earlier the defendant No.3 was in
possession of shop No.17, as a tenant, but the fact remains that the said
shop No.17 has been demolished and defendant No.3 has handed over the
possession of the shop No.17 to the plaintiff which itself proves that there
is no relation of landlord and tenant between the plaintiff and defendants
and shop No.17 was not situated at the place where shop No.6 has been
reconstructed, in the new building shop No.6 is not constructed at the
very same place where shop No.17 was situated, therefore, shop No.6 is
entirely at different premises and has nothing to do with shop No.17.
12. Moreover, it has been argued by learned advocate for the plaintiff
that from the oral evidence and documentary evidence, there is nothing
on record to show and suggest that the defendants were given possession
of shop No.6. The fact that shop No.5 has been constructed and has been
sold by the plaintiff to Rubinabanu by registered sale deed and said
Rubinabanu has become the owner of the premises by way of registered
sale deed in the year 2012, clearly establish the fact that if the defendants
wanted to purchase the property i.e. shop No.6, the same was by way of a
registered sale, and the fact remains that there is nothing to show and
suggest that shop No.6 was ever sold by the plaintiff to the defendants. In
view of the said fact, it has been argued that the judgment and decree
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passed by the Trial Court under the provisions of Section 6 of the
Specific Relief Act are as per law and does not require any interference.
13. Having heard the learned advocates for the parties and considering
the judgment and decree passed by the Trial Court, the fact remains that it
is admitted position that the plaintiff is the owner of the shop No.6. There
is also nothing on record to show and suggest that the plaintiff has ever
handed over the possession of shop No.6 to the defendants. The fact also
has to be considered that the plaintiff was the owner of all the new
constructed shops i.e. shop No.1 to shop No.9 and the plaintiff has sold
the said shops to different persons, and after the shop No.5 was sold by
the plaintiff to one Rubinabanu in the year 2012, the defendants have
purchased property i.e. shop No.5, which is adjoining to shop No.6, from
said Rubinabanu. The Trial Court has taken into consideration
photographs produced by Exhibit 45 and from the said photographs, the
Trial Court has come to the conclusion that old shop No.17, which was
given on rent to the defendant No.3 and shop No.6 i.e. the suit shop are
both different. In cross examination also defendant No.3 has admitted
that, in between the earlier rented premises and shop No.6, there was
Otala. In the cross examination, the defendant No.3 has also admitted
that the suit property is situated behind the old rented property No.17 of
Shree Neelkanth Complex Shopping Centre and the rented premises are
at a distance. Therefore, the entire story of the defendants that the rented
premises i.e. shop No.17 and the suit property i.e. shop No.6 are the same
cannot be believed.
14. If the facts of the present case is taken into consideration, there is
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nothing on record to show that defendants have become the owner of the
suit property and the suit property has been sold by the plaintiff to the
defendants. Moreover, in the cross-examination of the defendant No.3,
which was given Exhibit 40, when the defendant was put a question, if
there was any electricity connection in shop No.6, the defendant No.3 has
answered that, there was no electricity connection in shop No.6.
Moreover, if the court commissioner's report is taken into consideration,
the flooring of shop No.5 and 6 is also different. Moreover, if the sale
deed executed by plaintiff in favour of Rubinabanu with respect to shop
No.5, which is produced vide Exhibit 32 is taken into consideration, the
owners of shop No.5 and 6 are different. The entire case of the defendants
is that the shop No.6 - suit property, was earlier shop No.17, but there is
nothing on record to prove the said fact.
15. Moreover, in the written statement the defendants have taken a
defence that sale deed was to be executed by the plaintiff in respect to
shop No.6 and has stated that the defendants have paid huge amount
towards sale consideration, but there is no iota of evidence to prove said
facts, how much was the sale consideration and how much amount was
paid towards the sale consideration. The fact also remains that there is a
clear averments in the plaint that the plaintiff has been dispossessed from
the suit property on 02.07.2013, and therefore, the suit is filed within a
period of limitation, and therefore, it cannot be said that the plaint is
barred by law of limitation.
16. With respect to the judgment that has been relied on by the learned
advocate for the defendants in the case of Ramesh Chand Koiri vs.
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Chandan Koiri and Others reported in 2018 SCC Online, Calcutta 6471,
the facts of the said case will not assist the defendants, in view of the
facts of the said case that in the cross-examination of the plaintiff, the
plaintiff could not give a details of date of his dispossession and the
plaintiff has failed to prove his possession in the suit property. In the
present case, it is an admitted fact that the plaintiff is owner of the suit
property, and there is clear averments in the plaint that the defendant has
been dispossessed from the suit property on 02.07.2013 and therefore the
suit has been filed on 17.08.2013, i.e. within 6 months from the date
when the plaintiff was dispossessed from the suit property.
17. With respect to the judgments that have been relied on by the
learned advocate for the defendants in the case of Abu Khan S/o. Chand
Khan vs. Ishaq Khan and Others unreported judgment of High Court of
Rajasthan at Jodhpur in S. B. Civil Revision Petition No.176 of 2011, in
the case of Adapa Tatarao vs. Chamantula Mahalakshmi reported in
2006 (3) A.P.L.J. 311 (HC), in the case of Mohd. Mehtaba Khan and
Others vs. Khushnuma Ibrahim Khan and Others, reported in 2013(9)
SCC 221 and in the case of Mahabir Prasad Jain vs. Ganga Singh
reported in (1999) 8 SCC 274, are concerned, the facts of the said cases
are similar to the facts of the case of Ramesh Chand Koiri (supra)
hence, the same will not assist the defendant.
18. With respect to the judgment relied by the learned advocate for the
defendants in the case of Ramanlal Ambalal Patel vs. Hina Industries
reported in 1993 (0) AIJEL-HC 210160, the facts of the case will not
assist the defendants, in view of the facts that in the said case, the court
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was considering whether an amendment application could have been
granted whereby the plaintiff could have sought for amendment, as the
suit was filed for the specific performance of the agreement and therein
the opponent prayed for decree of possession of the suit property and the
said suit was not under the provision of Section 6 of the Specific Relief
act, and therefore, the court came to conclusion that the provision of
Section 6 of the Specific Relief Act and provisions of Section 5 are both
separate remedy, and both cannot be combined in one suit, and therefore,
amendment sought shall change the nature of the suit and therefore, the
same could not be granted.
19. In the facts fo the present case, the suit is filed in the provisions of
Section 6 of the Specific Relief Act, wherein the plaintiff has been
dispossessed on 02.07.2013 and fact that the defendants in the written
statement stated that the plaintiff had agreed to sell the suit property to
the defendants, which proves that the plaintiff is owner of the suit
property.
20. In view of the said facts, the order passed by the Trial Court is just
and proper, and the same is not required to be interfered. Hence, the
present Civil Revision Application does not survive and the same is
accordingly disposed of.
Sd/-
(SANJEEV J.THAKER,J)
NITIN MAKWANA
FURTHER ORDER
After pronouncement of the order, the learned advocate for the
petitioner has sought stay the operation of the order, in view of the fact
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that the petitioner intents to challenge the said order. In view of the said
fact, the operation and execution of the order is stayed for a period of four
weeks.
Sd/-
(SANJEEV J.THAKER,J)
NITIN MAKWANA
