CRA/1187/1992 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 1187 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== JASHWANTLAL KANSARA AND OTHERS Versus SHAH ABHAYKUMAR SHANTILAL AND OTHERS ====================================== Appearance : MR VC DESAI for Applicants. MR DJ PANCHAL for Opponent No.1. RULE UNSERVED for Opponent No.2. MS RUKHSANA M PATHAN for Opponent No.3. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 21/08/2008 ORAL JUDGMENT 1) By way of this Revision Application, original plaintiffs have challenged judgment and order of the appellate Court whereby Regular Civil Appeal No.31 of 1987 preferred by original defendant no.1 – CRA/1187/1992 2/6 JUDGMENT respondent no.1 herein was allowed by setting aside the decree passed by trial Court to hand over possession of Sri Mahalaxmi Pulse Mills. 2) The facts in brief, as emerging from record, are as under: 3) The plaintiffs are the Trustees of Visnagar Gujarati Kansara Caste in Visnagar, Near Vadnagari Darwaja in Municipal Tikka No.3/1 and Survey No.26, the vadi admeasuring 2130 sq.yds. is situated therein which belongs to Kansara Caste. Said trust is registered under the Bombay Public Trusts Act. It is the case of the plaintiffs that defendant no.1 was let some portion of the vadi for carrying on business of Shri Mahalaxmi Pulse Mills on 20-6-1970 at a monthly rent of Rs.108.50 ps under the rent note which is signed by defendant no.1 in presence of independent persons. As per the conditions of rent note, defendant no.1 was not entitled to sublet or transfer the suit property to any third party. Defendant no.1 was also liable to pay municipal and other taxes and electricity bills and defendant no.1 was to carry out repairs if the property is damaged in any manner. It is also the case of the plaintiffs that defendant no.1 has lastly paid rent of Rs.1302/- by a cheque for Mahalaxmi Pulse Mills on 13-2-1980. Thereafter, defendant no.1 has not paid rent and, therefore, defendant no.1 is also in arrears of rent for more than six months. Plaintiffs have claimed Rs.3574.50 ps. as rent for Mahalaxmi Pulse Mills. Plaintiffs have also averred that they required suit premises for various activities of their caste. Accordingly, suit was filed for getting vacant possession of the suit premises. Thereafter, after carrying out amendment in the plaint, it is also averred that defendant no.1 has sublet his interest in Mahalaxmi Pulse Mills to defendant no.3. In the said suit defendant no.1 filed written statement at Exh.140 and denied defaults in paying rent to the plaintiffs. He also denied that he has committed breach of conditions of rent note. Defendant no.2 has CRA/1187/1992 3/6 JUDGMENT also filed written statement at Exh.26 and stated that the plaintiffs have filed suit without obtaining permission of Charity Commissioner and, therefore, suit is liable to be dismissed. Defendant no.3 has not appeared throughout. After considering the evidence on record and after hearing the parties, trial Court decreed suit in favour of the plaintiffs and directed defendant no.1 and 3 to hand over peaceful possession of the suit premises in which Mahalaxmi Pulse Mills was carried on. 4) Being aggrieved by said judgment, defendant no.1 filed appeal being Regular Civil Appeal No.31 of 1987, wherein appellate Court has observed as under in paragraph 42: “42. So far exh.171 and 172 are concerned at the mot it can be said that the defendant no.3 is in exclusive possession of the suit premises but then also to my mind there is no evidence worth the name on record regarding transfer for valuable consideration and it is true that it is extremely difficult for landlord to show that there was valuable consideration and it has to be inferred from other circumstances but from the circumstances as discussed or pointed out it is difficult to believe that the defendant no.1 has sublet the property to defendant no.3.” 4.1) In view of above discussion, appellate Court allowed appeal filed by defendant no.1 and judgment and decree ordering defendants no.1 and 3 to hand over possession of Mahalaxmi Pulse Mills is quashed and set aside. Being aggrieved by it, the petitioners have filed present Civil Revision Application. 5) I have heard learned advocate, Mr.V.C.Desai for the petitioners. He submitted that appellate Court has committed an error by setting aside decree for possession and supported the judgment of the trial Court. He also submitted that though the suit was filed in 1980, defendant no.1 has appeared for the first time in 1985 and defendant CRA/1187/1992 4/6 JUDGMENT no.3 has not appeared throughout the proceedings. He also submitted that, as per the evidence on record, defendant no.1 is residing at Ahmedabad and not at Visnagar. He also submitted that defendant no.1 has not given reply to the notice given by the plaintiffs. He also submitted that as per panchnama there was a board of Vijay Trading Company of defendant no.3 at the site of Mahalaxmi Pulse Mills. However, against this contention defence taken by defendant no.1 that it was used as a weather-shed was found to be baseless by the trial Court. He also submitted that the plaintiffs have examined a Bank Officer, namely, Naresh Natverlal at Exh.165, who stated that defendant no.3 has paid amount of installments for Mahalaxmi Pulse Mills by cheques and loan was advanced to defendant no.3 on the basis of machinery and stock kept in suit premises. He also submitted that the appellate Court has not considered the fact that clerk in Supply Branch of Mamlatdar office was examined to establish that defendant no.3 has obtained loan on the goods of machinery situated in Mahalaxmi Pulse Mills and defendant no.3 has not came forward to oppose said aspect. He also submitted that defendant no.1 has also not produced books of account to disprove such allegations. He stated that as per deposition of defendant no.2 also, defendant no.3 is doing business in suit premises since last five years. He, therefore, submitted that appellate Court has committed grave error by allowing the appeal of defendant no.1. 6) From record, it is clear that though this matter is listed time and again before this Court, however, it has remained uncontested. This matter was notified on 24-7-2008 and 14-8-2008, however, it was adjourned with a view to give opportunity of hearing to the other side. On 14th August, 2008 this Court had passed following order: CRA/1187/1992 5/6 JUDGMENT “Heard learned advocate, Mr.Desai. None present for the respondent. As a last chance, S.O. to 21-8-2008.” 6.1) Inspite of that, nobody has appeared on behalf of the respondents even today. 7) I have gone through the evidence shown to me and I have also gone through the judgments of both the Courts below. In my view, the contention raised by the petitioners that the suit premises was sublet by defendant no.1 to defendant no.3 is clearly established in view of observations made by trial Court in paragraph 43 and 44 of its judgment, which reads as under: “43. It should be borne in mind that initial burden of proof under clause (e) (Subletting) is on the landlord. On the proof of transfer of possession of the leasehold property the onus shifts upon the tenant to make out that transfer of possession cannot be attributed to subletting or assigning as even after transfer of possession he retained the right to claim possession. It is for the tenant to prove under what arrangement he transferred the possession to another person. The mere user by the other person is not parting with possession so long as the tenant retains the legal possession himself and in that context once again it is necessary to refer the deposition of defendant No.1 viz. Shri Abhaybhai exh. 177 and from his deposition it is clear that at present he does the work of milling only and the amount that has been shown in exh.167 which has been paid by Vijay Trading Co. is only towards the business charges and it is true that as such there is no contention has been raised in the w.s.exh.140 accordingly then also it cannot be said to be a fatal and nor from it . It can be said that the defendant No.1 has sub-let the suit property and it is true that in the deposition of Shri Nareshbhai who happens to be the employee of Visnagar Nagrik Sahakari Bank vide exh.165 it has come on the record that Vijay Trading Company keeps its goods in the premises No.2/17/2 then also mere user by the Vijay Trading Company cannot be said as parting with possession. (44) It appears that the learned trial Judge has been much CRA/1187/1992 6/6 JUDGMENT swayed by the fact that at present the defendant No.1 is not residing at Visnagar but he settled at some another place but by that fact only no inevitable conclusion can be drawn that the defendant No.1 has sublet the suit property to the defendant No. 2.” 7.1) Not only that in view of deposition of bank officer as well as clerk of Supply Branch, Mamlatdar office, it is clear that defendant no.3 has paid amount of loan obtained by defendant no.1 and defendant no.3 has also obtained loan on goods and machinery situated in Mahalaxmi Pulse Mills. Moreover, defendant no.1 has not produced license under Bombay Shops and Establishment Act to support the say that defendant no.1 was doing processing work of Dhal of defendant no.3. In that view of the matter, I am of the opinion that the view taken by the appellate Court is contrary to the evidence on record. The appellate Court has found that defendant no.3 is in exclusive possession of the suit premises and merely because it is not established that consideration was paid, it cannot be a ground for reversing the decree of the trial Court. In that view of the matter, in my view, the appellate Court has committed an error in reversing the finding of the trial Court. Therefore, this Revision Application is required to be allowed by quashing and setting aside finding of the appellate Court and restoring the view taken by the trial Court. Accordingly, finding of the trial Court is restored, whereby defendants no.1 and 3 are directed to hand over peaceful possession of suit premises wherein business was carried on in the name of Mahalaxmi Pulse Mills. 8) Accordingly, this Civil Revision Application is allowed to the aforesaid extent. Rule is made absolute accordingly with no order as to costs. (K.S.Jhaveri, J.) *malek