Gujarat High Court
Fidahusein Mahmedali Baldiwala vs Gangaram Sankalchand Prajapatidecd. ... on 1 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 1148 of 1999
With
R/CIVIL REVISION APPLICATION NO. 1408 of 1999
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
In R/CIVIL REVISION APPLICATION NO. 1408 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
Yes
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FIDAHUSEIN MAHMEDALI BALDIWALA & ORS.
Versus
GANGARAM SANKALCHAND PRAJAPATIDECD. THRO' HEIRS & L.R. &
ORS.
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Appearance:
MR SAMIR AFZAL KHAN(3733) for the Applicant(s) No.
1.1,1.2,1.3.1,1.3.2,1.3.3,1.4,1.5
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Opponent(s) No. 1.1
MR DC DAVE(249) for the Opponent(s) No.
2.1,2.2,3.1,3.2,3.3,4.1,4.3,4.4,5,6,7,8
MR NV GANDHI(1693) for the Opponent(s) No.
1.1.1,1.1.2,1.1.3,1.2,1.3,2,4.2.1,4.2.2,4.2.3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL JUDGMENT
1. Both the Civil Revison Applications are under Section 29(2)
of the Bombay Rents Hotel and Lodging House Rates Control Act,
1947 (hereinafter referred to as the Bombay Rent Act), arising out of
the judgment and decree passed in Civil Appeal No.2 of 1993,
whereby the said Civil Appeal was partly allowed and the judgment
and decree for ejectment under Section 13(1)(g) of the Bombay Rent
Act, passed by the Small Causes Judge, against the tenant in respect
of the suit premises, described in paragraph No.1(B) & 1(C) of the
plaint, in HRP Suit No.57 of 1976, are quashed and set aside and the
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said judgment and decree, quashing the ejection, under Section 13(1)
(g) of the Bombay Rent Act, with respect to property described in
paragraph No.1(B) & 1(C) of the plaint are challenged by way of
Civil Revision Applicaion No.1408 of 2019, by the landlord and the
judgment and decree for ejectment under Secion 13(1)(I) of the
Bombay Rent Act, in respect of suit premises, described in
paragraph No.1(A), of the plaint whereby the trial Court had granted
ejectment of the property described in paragraph No.1(A), of the
plaint, has been confirmed by the appellate Court and the tenant has
challenged the same by filing Civil Revision Application No.1148of
1999.
2. For the sake of convenience, the parties are referred to as per
their original status as that in the suit.
3. The brief facts arising in the present Civil Revision
Applications are that the plaintiff has filed the suit for eviction
against the tenant with respect to three properties. The same are
described as under:-
"(1A) Open land of survey no.1933/1 and M.C. No.662/2 overr
which defendant has put his shet and boundar are as under:
West: Survey no.1932 is situted and there is also survey
no.1935 belonging to other owner.
East: To some extect, there is building of Dandi Swami
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Math and to some extent, there is property of
Haranwali Pole.
North: Survey no.1937 of Dandi Swami Math building.
South: Survey no.1933.
Thus, land is situted within above boundaries, on which defendants
put kachcha shed on iron sheet for his business.
(1B) Pucca Shed constructed by the plaintiff bearing
survey no.1933/1 and M.C. No.662/2 Paiki,
boundaries where of are as under:-
East: Property of Harranwali Polie.
West: Plaintiffs' property meant for passage bearing survey
no.1933.
North: Open shed having surrvey no.1933/1 over which
defendant has put up shed at his own costs.
South: Property bearing survey no.56.
(1C) Premises bearing survey no.1931 and M.C. No.662/4
of Kalupur ward-1, boundaries of
which are as under:-
East: Plaintiffs' property bearing survey no.1933.
West: Main road.
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North: Plaintiffs' survey no.1933, which is meant for passage.
South: Survey no.1933, the prropery of plaintiff no.1,
wherein hotel is situted.
Thus, within these four boundaries, property is used as office and
factory shop.
[The above referred properties are described as property No.1(A),
1(B) & 1(C) for the sake of brevity.]
4. The trial Court had decreed the suit and directed the defendant
to evict the suit property i.e. property No.1(A)(B) & (C) and after
reappreciating the evidence the first appellate Court had affirmed the
decree with respect to property No.1(A) and had quashed and set
aside the judgment and decree of the trial Court with respect to the
property No.1(B) & (C).
5. The landlord had also sought for eviction for property No.1(A)
under Section 13(1)(I) i.e. erection of a new building and had sought
for eviction of the tenant with respect to property No.1(B) & (C) on
the ground that the plaintiff required the suit property for its own
bonfide requirement i.e. Section 13(1)(g) and in view of the fact that
the first appellate Court has confirmed the judgment and decree with
respect to property 1(A). The tenant has filed Civil Revision
Application No.1148 of 1999.
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6. Learned advocate for the original tenant has mainly argued
that the property described as property No.1(A) has a kachchaa
shade in the suit premises and the said fact is very much in the
knowledge of the plaintiff- landlord, and therefore, the said suit
property i.e. property mentioned as property No.1(A) cannot be
considered as an open land, and therefore, it will not fall under the
provision of section 13(1)(I) of the Rent Act, and therefore, the
appellate Court could not have granted the decree of eviction under
the provision of Section 13(1)(I) of the Rent Act.
7. The learned advocate for the tenant has also argued that if the
entire evidence is perused, the property No.1(A) is admeasuring
146.47 sq. yard, Property No.1(B) is admeasuring 120 sq. yard + 19
sq. yard.
8. Learned advocate for the tenant has also argued that there are
different rent notes that have been executed beween the parties and
the tenant is occupying the premises since 1926. Learned advocate
for the tenant has relied on the rent note produced vide Exhibit-140,
144, 182, 104 &186.
9. It has been argued by the learned advocate for the defendnat -
tenant that the plaintiff landlord had sought for possession of the suit
property No.1(A) under the provision of Secion13(1)(I) of the
Bombay Rent Act, and had sought for possession for suit property
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No.1(B) & 1(C) for his bonafide requirement. The trial Court had
framed issues, vide Exhibit-31 which reads as under:-
1. Do plaintiffs prove that defendant is tenant in arrears from 1-
8- 75?
2. Are plintiffs entitled to decree for eviction unde sec.12?
3. Does plaintiff prove that premises described in parano.1/A is
open land?
4. Do plaintiff prove that they require premises stated in para
no.1/A, reasonably and bonfide for construction?
5. Do plaintiffs prove that they require premises described in
para no.1/A 1/B and C reasonably and bonafide for personal
use?
6. To whom greater hardship will be caused?
7. Is valid notice given?
8. What is the standard rent?
8A. Is suit barrd by delay, latches and estoppel and acquiance?
8B. Is suit bad for non-joinder and mis-joinder of parties and
cause of action?
8C. Is suit not maintainable in present form?
8D. Is it shown that plaintiffs nos.3 to 8 have no interest in the suit
property?
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8E. Whether it is proved that M/s. Fidahuse in Mahmedali
Baldiwala, is tenant of the premises?
9. What is due?
10. What order?
10. The plaintiff was examind, vide Exhibit-36 and the witness of
the plaintif, vide Exhibit-136. The defendant was examined vide
Exhibit-159 and the witness of the defendant, vide Exhibit-320. The
brocker was examined vide Exhibit-322 and 323. The other
witnesses of the defendant were examined, vide Exhibit-322, 323,
341, 326, 353, 361, 362, 364 and 403 and after considering the oral
evidence and the documentry evidence and giving findings on all the
issues the trial Court had allowed the said suit and granted the
possession of the suit premises to the plaintiff and directed the
defendant to hand over vacant and peaceful possession of the
premises i.e. property described as property No.1(A)(B) & (C) and
also passed an order that the defendants are liable to pay an amount
of Rs.2110/- found as arrears of rent and mesne profit and decided
that the standard rate of the suit property, is fixed as Rs.125/ per
month, exclusive of municipal tax and deduction cess.
11. The defendant had challenged the said judgment and decree
before the first appellate Court by filing Regular Civil Appeal No.2
of 1998 and after reappreciating the evidence the first appellate
Court had partly allowed the said appeal and judgment and decee of
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the trial Court in respect of suit property i.e. property No.1(B) and
(C) were set aside and the appeal against the judgment and decree
for ejectment under Secion 13(1)(I) of the Bombay Rent Act in
respect of said property described in property No.1(A) of the plaint,
is dismissed and granted time to the defendant tenant to vacate and
handover the possession of the premises to the plaintiffs up to
31.07.1999. Aggrieved by the judgment and decree whereby the trial
Court and the first appellate Court has confirmed the decree of
eviction with respect to property stated to be property No.1(A), the
original tenant has filed Civil Revision Application No.1148 of 1999
and aggrieved by the judgment and decree whereby the first
appellate Court has quashed and set aside the judgment and decree
of the trial Court with respect to property No.1(B) and 1(C), the
original landlord filed Civil Revision Application No.1408 of 1999.
Submission of the petitioner-tenant of CRA No.1148 of
12. Learned advocate for the original tenant has mainly argued
that the trial Court and the first appellate Court could not have
granted the judgment and decree with respect to property situted at
property No.1(A) as it is an admitted position that kachchaa shade
has been constructed in the suit premises property No.1(A) to the
knowledge of the plaintiff landlord, and therefore, the said property
cannot be considered as land, and therefore, the trial Court could not
have passed a judgment and decree under Section 13(1)(I) of the
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Act, as the suit property was not an open land.
13. The learned advocate for the defendant has argued that all the
properties i.e. property No.1(A)(B) & (C) cannot be divided and it is
only in the plaint that this property has been divided by the original
landlord. Moreover, the relief that has been sought by the plaintiff
also could not have been granted by the trial Court and confirmed by
the first appellate Court, in view of the fact that all three properties,
i.e. property No.1(A)(B) & (C), are interconnected and all the three
properties could not have been divided.
14. Moreover, it has been argued by the learned advocate for the
defendant-tenant that the plaintiff has sought for eviction with
respect to property No.1(A), on the ground that the said premises is
reasonable and bonafidely required by the landlord for errection of
new building, if the documentary evidence produced by the plaintiff
are perused, the plaintiff has placed the plans for construction of
property No.1(A), somewhere in the year 1965, and the plans were
approved in the year 1967. The said plans had expired in the year
1968 and the suit that has been filed by the plaintiff is filed on
23.11.1996, therefore, it has been argued that even during the time
when the said plans which have been given to Ahmedabad
Municipal Corporation were in existance, the plaintiff landlord have
not filed any suit and had not taken any steps for eviction of the
tenant from the suit premises on the ground that, the plans have been
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approved by Ahmedabad Municipal Corporation.
15. Moreover, it has also been argued that the suit that has been
filed is approximately after 9 years of approval of the plans from the
Ahmedabad Municipal Corporation, and therefore, also the plaintiff
could not have filed suit at a belated stage for seeking possession on
the ground that the plaintiff intends to make a new building in the
suit premises, and therefore, the said requirement to make new
construction in the said premises cannot be believed and only on the
ground of delay and latches the trial Court and the appellate Court
shall have rejected the said claim qua the property situated at
property No.1(A).
16. Moreover, from the expert's reports produced vide Exhibit-
326, wherein the said expert had stated that new building that the
plaintiff intends to construct, the defendant could have been given
the premises on rent in the newly constructed premises, and
therefore, also on the ground of comparative hardship the trial Court
and the appellate Court could not have granted decree of eviction of
the property No.1(A).
17. The learned advocate for the defendant tenant has also argued
that at the time when the suit was filed i.e. in the year 1976 neither
there were any plan that were approved by the Ahmedabad
Municipal Corporation, for making any kind of new building in the
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allotted open land, and therefore also, the plaintiff has miserably
failed to prove that the plaintiff has intention to make any
construction in the suit premises. Moreover, it has been argued that
after the judgment and decree passed by the trial Court and
confirmed by the appellate Court, the plaintiffs have not made any
new building in open land, and therefore, the said claim of the
plaintiff seeking possession of the open land is only to vacate the
tenant from the said land.
18. Moreover, it has been argued that if the judgment passed in
HRP Suit No.1042 of 1947, dated 06.01.1948 is perused, vide
Exhibit-46, the said judgment also clearly states that there is
kachchaa shed in the suit property which cannot be considered as an
open land, within the perview of Section 13(1)(I) of the Bombay
Rent Act, and therefore, it has also been argued that the trial Court
and the first appellate Court could not have granted decree of
eviction, in view of the fact that the suit property is individual and
the Court cannot split the properties. Moreover, it has also been
argued that the suit property was first given on rent in the year 1925
and the crucial date of ascertaining the nature of the use of the land
in question was that date when the right on the basis of the Rent Act
is exercised and in view of the fact that, on the date when the said
right has been exercised the suit property was used there was
kachchaa shed in the suit property, and therefore, the said property
cannot be stated and considered as an open land and the trial Court
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and the appellate Court could not have granted any decree under
Section 13(1)(I) of the Bombay Rent Act.
Defendant case with respect to property No.1(B) & (C)
19. With respect to the property that has been stated to be
property No.1(B) & (C) and for which the plaintiffs have sought for
eviction on the ground that the plaintiff required the suit property for
his own bonafide requirement, under Section 13(1)(g) of the
Bombay Rent Act, the plaintiff has examined two witnesses plaintiff
No.6, Pramodbhai, vide Exhibit-36 and plaintiff No.5 Popatbhai,
vide Exhibit-136. It has been argued that the suit property i.e.
property No.1(B) & (C), are ancestral properties and running in the
name of plaintiff Nos.1 & 2 since 1932, in the City Survey Record
and vide Exhibit-62 there was a partition deed, whereby the
properties have been divided in equal parts and plaintiff No.1 and
plaintiff No.2, being real brothers, the plaintiff had prepared a plan
and after the said division and after partition, the property described
as property No.1(B) & (C), have gone to the share of plaintiff No.1 -
Gangaram and neither Gangaram nor legal heirs of Gangaram have
entered the winess box and examined themselves to prove the fact of
bonafide requirement. Moreover, it has also been argued that the
appellate Court is last Court for adjudication of facts, and therefore,
on the said factual aspect, this Court cannot interfere with the
findings of the first appellate Court on the gound of bonafide
requirement.
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20. Learned advocate for the tenant has also argued that the trial
Court passed the decree of eviction against the defendant holding
that the requirement of plaintiff Nos.4 to 8 can be considered in
respect of property described as property No.1(B) & (C). Moreover,
in view of the fact that after partition vide Exhibit-62, the joint
interest of plaintiff Nos.4 to 8 have gone to the share of Gangaram,
i.e. plaintiff No.1 and properties were an ancestral property, Plaintiff
Nos.3 to 8 have signed the partition deed Exhibit-62, therefore, in
view of the fact that the plaintiffs have miserably failed to prove that
bonafide requirement, with respect to property, stated at property
No.1(B) & (C), the appellate Court has rightly rejected the said
claim of bonafide requirement of the plaintiffs with respect to
property No.1(B) & (C).
21. In view of the aforesaid fact, learned advocate for the
defendant has argued that the judgment and decree passed by the
trial Court and confirmed by the first appellate Court qua property
No.1(A) is required to be quashed and set aside and the judgment
and decree passed by the first appellate Court qua property No.1(B)
& (C) is required to be confirmed.
Submission of learned advocate for the plaintiff-landlord -
Arguments with respect to property No.1(A)
22. Learned advocate for the plaintiff has mainly argued that there
are concurrent findings of the trial Court and the appellate Court
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with respect to property stated as property No.1(A), all throughout
the said property has been described as an open land, the property
was given on rent also as an open land. Moreover, alleged kachchaa
construction that has been made by the defendant in the said
property No.1(A), is also not approved by the Ahmedabad Municipal
Corporation, and therefore, also the said property would be an open
land.
23. Moreover, it has been argued that from the entire evidence
produced by the plaintiff, it can be clearly established that the
property described in property No.1(A) of the plaint is an open land.
It is the case of the plaintiff that after open land was given on rent
the tenant has constructed in the said open land. The plaintiff, vide
Exhibit-52, have produced the plan prepared by the plaintiff No.6,
who was examined vide Exhibit-36 and who is diploma in Civil
Engineering and the shed that has been constructed is shown under
the red line, in the plan on the basis of Ahmedabad Municipal
Corporation record and Ahmedabad Municipal Corporation does not
give permission for any construction in portion which is under red
line.
24. Moreover, even from the rent note executed with respect to the
suit property, produced vide Exhibit-146 to 151, the suit property i.e.
property No.1(A) is rented to the defendant as an open land.
Moreover, the witness of the plaintiff examined vide Exhibit-136
who is an Officer of Ahmedabad Municipal Corporation, has also
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deposed that the suit property i.e. property No.1(A) is in red line and
the said witness has served in Ahmedabad Municipal Corporation, as
Draftman in State Department and according to him on the date,
when he had deposed before the Court the red line, still has not been
executed.
25. It is also argued that the rent note produced vide Exhibit-146,
on 12.04.1935 in which all the three properties are separately
described, property No.1(A) is stated to be open land as stated in
paragraph No.2 of the said rent note, and therefore, it can be clearly
established that, an open land stated to be property No.1(A) is given
on rent to the defendant. Moreover, even in the certified copy of the
decree, passed in, HRP Suit No.1042 of 1947, three properties are
separately mentioned and the property stated to be property No.1(A),
is described as an open land, and therefore, an open land was given
on rent to the defendant.
26. With respect to the fact that there was a delay on the part of
the plaintiff for seeking a suit of eviction on the ground that the
plaintiff required the suit property for making a new building, the
said fact was never argued before the trial Court and the appellate
Court. Moreover, the said fact cannot be considered in view of the
fact that the trial Court and the appellate Court have given findings
of facts and the said fact cannot be reversed as the trial Court and the
appellate Court have given proper reasons to adjudicate the said
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issue.
27. With respect to the fact that, the plans for new constructions
were approved in the year 1967 and had expired in the year 1968,
learned advocate for the plaintiff stated that nothing has come on
record that if, new plans are placed, the same will be rejected by
Ahmedabad Municipal Corporation, and therefore, also on the said
ground the judgment and decree of the trial Court and confirmed by
the appellate Court cannot be quashed and set aside, and therefore, in
view of the said fact there is no perversity in the judgment and
decree passed by the trial Court and appellate Court. Present Civil
Revision Application with repsect to property stated as property
No.1(A) is required to be dismissed.
Argument of plaintiff - landlord with respect to property
No.1(B) & (C)
28. With respect to the facts that the plaintiff has filed the suit for
possession of the property with respect to property described as
property No.1(B) & (C), the learned advocate for the plaintiff has
mainly argued that the trial Court had rightly decided the same in
view of the fact that plaintiff's family was in need of property. The
appellate Court has not considered the oral evidence and the
documentary evidence with respect to said contention made bythe
plaintiff before the trial Court and moreover on the issue of
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comparative hardship also, the appellate Court has not taken into
consideration the findings of the trial Court and in view of the said
fact, just because partition had taken place between the plaintiffs the
appellate Court could not have reversed the judgment and decree of
the trial Court .
Analysis
29. Having heard learned advocate for the parties. This Court will
first take into consideration the findings with respect to property
No.1(A), the plaintiffs have filed the suit on the ground that they
required the suit property and sought eviction of the defendant, on
the ground that the plaintiff required the suit property, which is an
open land reasonably and bonafide is required by landlord for
errection of the new building.
30. The first contention that has been raised by the defendant that
the suit property is not an open land, due to the fact that kachchaa
shed has been made in the said open land, but the fact remains that
neither any permission of the competent authority, has been taken,
for making the said construction, nor any evidence has been
produced by the defendant, to show that the said kachchaa
construction is made, after the approval of Ahmedabad Municipal
Corporation. Moreover, the defendant has also not produced any
documentary proof to suggest that at the time suit property No.1(A)
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was given on rent to the defendant, Kachchaa shed was constructed
and that the property No.1(A) was given on rent, the fact remains
that even from the first rent note produced vide Exhibit-156, dated
12.04.1935, the suit property was described as an open land and
there is clear reference about property No.1(A) as an open land, in
the said rent note.
31. Moreover, even if the certified copy of the judgment and
decree in HRP Suit No.1042 of 1947, is taken into consideration,
the property described as property No.1(A), is described in the
decree as an open land, therefore, it is very clear that open land was
given on rent to the tenant. Moreover, if the rent note produced vide
Exhibit-54, dated 10.01.1940, is perused the property prescribed as
poperty No.1(A), is an open land, even in the written statement,
produced vide Exhibit-189, the defendant has taken contention that
rent of open land fixed to Rs.40/-, therefore, there is clear admission
on the part of the tenant that, open land is given on rent to the
defendant and the shop that has been constructed in the said open
land is constructed by the tenant. Even in the rent note produced vide
Exhibit-182 dated 06.06.1946, the suit property I.e. property
No.1(A), is described as an open land. In the rent note produced vide
Exhibit-140 and the rent note produced vide Exhibit-144, also
described property No.1(A) as an open land, therefore, there is a
clear evidence that the suit property which was given on rent i.e.
propety No.1(A), is an open land, and therefore, the fact that the suit
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property cannot be considered as an open land in view of the
kachchaa shed that has been constructed by the defendant cannot be
considered in view of the aforesaid facts. Therefore, the said
property No.1(A) was always given on rent as an open land.
32. The next contention that has been taken with respect to
property No.1(A) that in view of the fact that all the three properties
have been given on rent, the same cannot be split and all the three
properties were individual, and therefore, the trial Court and the
appellate Court could not have split the properties and granted
eviction.
33. The trial Court granted eviction with respect to property
No.1(A) on the ground that the plaintiff proved the bonafide
requirement of the said premises, for construction of a new building
on the suit premises, i.e. property No.1(A), and the plaintiff requires
properties No.1(B) & (C) for his own bonafide requirement.
34. To consider the fact that whether all the three properties were
individual properties and could not be split there is rent note
produced vide Exhibit-146, dated 12.04.1935, in which all the three
properties have been described separately, even from the certified
copy of the decree, passed in HRP Suit No.1042 of 1947, all three
properties have been described as property No.1(A)(B)&(C),
separately in the rent note that have been produced on record. All
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three premises are shown separately, even in the written statement,
filed, vide Exhibit-189. Each of the properties are described
separately, and therefore, it cannot be said that all the three
properties are same and cannot be split. Moreover, the judgment that
has been relied by the defendant i.e. 1996 (0) AIJEL SC 18959 in the
case of Nalanikant Ramadas Gujjar v. Tulsibhai (Dead) by LRS, in
the said judgment also the Apex Court has held that the crucial date
of ascertaining the nature of use of land in question is date when the
rights under the aforesaid act are to be exercised and the fact
remains that neither there is any permission for making any kuchha
construction in the said premises, nor has the plaintiff given any
consent for making any kuchha construction in the open land.
Moreover, the suit property No.1(A), was given on rent as open land
and the said fact can also be very clear from the rent notes that have
been produced on recod. The written statement that has been filed by
the defendant and from the certified copy of the judgment and decree
passed in HRP Suit No.1042 of 1947, therefore, the said judgment
will not be applicable to the facts of the present case as it was the
open land which was given on rent to the defendant.
35. With respect to the fact that there is delay in filing the suit in
view of the fact that the plans were approved by the Ahmedabad
Municipal Corporation in the year 1967 for the property No.1(A),
and said plan expired in 1968 and the suit has filed in the year 1976,
there is nothing on record to suggest that new plans cannot be
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approved by Ahmedabad Municipal Corporation. The said fact that
the suit is filed on the ground of delay and latches having not been
argued before the trial Court and the appellate Court, and therefore,
the same cannot be agitated in the present Revision Applications,
therefore, the Revision Application for eviction with respect to
property No.1(A) of the tenant is dismissed.
36. With respect to the contention of the plaintiff that the plaintiff
is entitled for possession of property prescribed as property No.1(B)
& (C) for its own bonafide requirement, at the time when the suit
was filed the Court had taken into consideration, the requirement of
two brothers i.e. Gangaram Sakalchand Prajapati and Veerchand
Sakalchand Prajapati.
37. It is an admitted position that the suit property was an
ancestral property, running in the name of original plaintiff Nos.1
and since 1932 and thereafter, the same was divided equally by
partition vide Exhibit-62, dated 30.01.1973, i.e. before the filing of
the suit and it is the case of the plaintiff that the plaintiffs are facing
shortage of accommodation for their family members.
38. It is the plaintiff's case that there were eight couples in the
family in the year 1968 and there was no sufficient accommodation
for the couples and their children in the properties in their
possession, and therefore, they got plans approved for construction
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of new building on the open land given on rent to the defendant,
which is mentioned in para-1(C) of the plaint and as the plaintiffs
faced shortage of place to accommodate their family members, the
suit was filed in the year 1976 for eviction of the tenant, with respect
to the property No.1(B) & (C). The plaintiff required the said
premises for its own bonafide and personal requirement. The trial
Court passed decree of eviction against the defendant holding that
defendant No.3 to 8 have been entrusted the suit property jointly and
requirement of branch of defendant No.2 can be considered
requirement of branch of plaintiff No.1, and therefore, the trial Court
held that property described as property No.1(A) & 1(B) were
required to be divided under Section 13(1)(g) of the Bombay Rent
Act.
39. The fact remains that in view of the partition deed Exhibit-62,
dated 30.01.1973, there was a division of the property between the
plaintiff No.1 Gangaram and after the division, it was agreed that
the properties that have been gone to the share of plaintiff No.1, the
plaintiff No.2 shall not have right in the said premises and the
plaintiff No.2 will have no share in the property. Moreover, even in
the deposition at Exhibit-36 and 136 it has been clearly stated that,
the plaintiff No.4 to 8 have no right, title, interest in the property of
plaintiff No.2 after the partition in the year 1973 vide Exhibit-62 and
as per the map attached to the partition deed and the map prepared
by the plaintiff No.5, Exhibit-51 and 56, the property described in
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property No.1(B) & (C) have gone to the share of plaintiff No.1
Gangaram. The fact is also very clear that neither Gangaram or his
family members nor his legal heirs have entered the witness box and
have proved the fact of Gangaram as a class-I legal heir as pe Hindu
Succession Act have any bonafide requirement of property described
as property No.1(B) & (C). Therefore, no evidence is brought on
record to examine from the branch of Gangaram to prove that any
members of branch of Gangaram required the suit property
mentioned in property No.1(B) & (C) of the plaint, though the said
property has gone to the share of Gangaram, therefore, the appellate
Court has rightly held that the family members of Veerchand cannot
be considered for the properties which have owned and possessed by
the Gangaram and their family.
40. Moreover, the plaintiffs have failed to prove that plaintiff
No.3/1 Shardaben requires the premises described as property
No.1(B) & (C). In view of the fact that plaintiff No.2, 4, 5, 6 & 8
have no right title, interest in the suit premises described as property
No.1(B) & (C) after the execution of the partition deed produced
vide Exhibit-62, the appellate Court has rightly not considered the
requirement of plaintiff No.2 - Veerchand and the branch of
veerchand. Moreover, even on the fact of comparative hardship, the
trial Court has not given any findings as to how the comparative
hardship, the landlord has proved comparative hardship in favour of
the landlord and not in favour of the tenant.
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41. In view of the same, the judgment and decree passed by the
appellate Court in setting aside the judgment and decree of the trial
Court with respect to property No.1(B) & (C) are on proper
appreciation of facts and evidence and is not required any
interference. Hence, the same is rejected. While exercising powers
under Section 29(2) of the Gujarat Rents, Hotel and Lodging House
Rates Control Act, 1947 this Court cannot interfere with the findings
of facts recorded by the District Court, unless it can be shown that
they discloses errors of law in arriving at conclusion and looking to
the facts of the present case, there is no error of law with the findings
of facts recorded by the District Court.
42. From the findings of fact rendered for reasonable and bonafide
requirement, the suit property for his own use and occupation is
clearly one of the fact in view of the same, Appellate Court has
considered the evidence and arrived with the findings of fact rightly.
43. The revisional jurisdiction under Section 29(2) of the Gujarat
Rents, Hotel and Lodging House Rates Control Act, 1947 can only
be exercised for limited purpose with a view to satisfy its jurisdiction
according to law. In the present case, this Court is satisfied that the
decision taken by the first appellate Court is according to law. The
findings of facts recorded by the first appellate Court are supportable
on the evidence on record. This Court cannot embark and give
indpendant reassessment of the evidence on record. The appellate
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Court has considered entire arguments advanced by the parties and
have come to the conclusion that the plaintiff has proved his case
under Section 13(1)(I) with respect to property No.1(A) and the
appellate Court has rightly come to the conclusion that the plaintiff
has not been able to prove his case by evidence with respect to his
bonafide requirement with respect to property No.1(B) & (C). There
is no illegality in the order passed by the first appellate Court, nor
has the first appellate Court erronously exercised the discretion. The
findings of the appellate Court decreeing the suit for evicion with
respect to property No.1(A) and rejecting the claim of the plaintiff
with respect to poperty No.1(B) & (C) are supported by evidence on
record.
44. In view of the same, both the Revision Applications filed by
the landlord and tenant are hereby dismissed. The tenant is hereby
given one month time to vacate and handover peaceful possession of
the premises to the defendant with respect to property No.1(A).
45. In view of the order passed in the main matters, Civil
Application does not survive and stands disposed of accordingly.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
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Learned advocate for the appellants requests to stay the
implentation and operation of the present judgment. In view of
the fact that he wants to challenge the same.
Request is granted. The operation and implementation of
the present judgment is stayed for a period of four weeks.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
