FA/2801/2007 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2801 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment? NO 2 To be referred to the Reporter or not? NO 3 Whether Their Lordships wish to see the fair copy of the judgment? NO 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? NO 5 Whether it is to be circulated to the Civil Judge? NO ========================================= = HUSENABEN WIDOW OF RASIKBHAI AND OTHERS - Appellants Versus KIRANKUMAR RANCHHODBHAI AND OTHERS – Respondents ========================================= =Appearance : MR JIGAR P RAVAL for the Appellants. MR DJ BHATT for Respondents : 1 - 4. MR VIKRAM J THAKOR for Respondent : 5. DS AFF.NOT FILED (N) for Respondent : 6. ========================================= = CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 03/04/2008 FA/2801/2007 2/16 JUDGMENT ORAL JUDGMENT 1. This appeal is preferred by the heirs of deceased – Ganibhai Ramzanbhai against the judgment and order dated 30-04-2007 passed by the learned Judge, City Civil Court, Ahmedabad in Civil Suit No. 908 of 1985 whereby the suit was decreed in favour of the original plaintiffs. 2. The plaintiffs filed the suit seeking declaration that defendants had trespassed over the open space (hereinafter referred to as “the disputed open space”) situated on the northern side of the property bearing Municipal Census No. 1078/1/2/3, Survey No. 16 of Madhupura Ward, Ahmedabad and for mandatory injunction directing the defendants to remove the two gullas placed in the said disputed open space and for permanent injunction restraining the defendants from placing any other goods or articles in the open space. As per the case of the plaintiffs, they had purchased the property with the first floor and open space bearing Municipal Census No. 1078 and 1078/1/2/3 of Survey No. 16 of Madhupura Ward, Ahmedabad, admeasuring 88 Sq. Mtrs from one Devendra Ramanlal Mashruwala, Mukesh Ramanlal Mashruwala and Nilesh Ramanlal Mashruwalal on 11-10-1984. On the ground floor of the said property bearing M. C. No. 1078/1/2 Paiki, one Ganibhai Ramzanbhai was staying as a tenant on monthly rent of Rs. 8 and after his death, the defendants-heirs of said Ganibhai were staying as tenants. The defendants-heirs were in possession of two rooms on the ground floor having doors on western side and the plaintiffs were in possession of the constructed portion on the northern FA/2801/2007 3/16 JUDGMENT side with the open space admeasuring North-South 15 Ft, North-West 9 and East-West 20 Ft. As the predecessors of the plaintiffs were staying away from the suit-property at Navrangpura, Ahmedabad, the defendants took undue advantage of their absence and constructed wall upto the plinth level surrounding the open space on the northern side of the suit property and had put two lorries - one of pan-gulla and another tea-stall, trespassing over the said open space. The lorries were run by defendant Nos. 3 and 4, who happened to be sons-in-law of defendant No. 1. Thus, the defendants caused hindrance on the disputed open space and put gullas in an illegal manner, and, therefore, the plaintiffs were constrained to file the suit for declaration and injunction. The suit was resisted by the defendants by filing a written statement at Exh. 41 wherein the allegations and averments in the plaint were denied. It was contended by the defendants that they were tenants of the suit property and were paying rent on regular basis to the predecessors of the plaintiffs. The defendants had not trespassed over the open space, but they were in fact actually in possession of the said space and had put pan-gulla and tea-stall since last more than 30 years in the open space. It was also contended that the plaintiffs had already filed the suit bearing No. 1866 of 1987 in the Court of Small Causes Court, Ahmedabad, claiming the possession of the suit property from the defendants. During the pendency of the suit, the defendants have filed further written statement vide Exh. 66 contending therein that the open space, in respect of which the plaintiffs had filed the suit, was part of the tenanted premises and was the land appurtenant which had no separate census number. It was FA/2801/2007 4/16 JUDGMENT also contended that the predecessors of the plaintiffs had filed one suit bearing No. 2892 of 1966 in the Court of Small Causes Court, Ahmedabad against the defendants seeking possession of the suit premises on the ground of change of user which suit was dismissed and the appeal which was filed against the said order was also dismissed by the Appellate Bench. Thus, the defendants in the written statement prayed for dismissal of the suit with costs. The learned Judge framed issues vide Exh. 23 and after framing of issues held that plaintiffs have established that the defendants were heirs of Ganibhai Ramzanbhai and they are not entitled to possess anything more than the ground floor of the property bearing Municipal Census No. 1078/1/2 being part of the property bearing Municipal Census No. 1078, Survey No. 16, Madhupura Ward in the City of Ahmedabad. It is also held by the learned Judge that the defendants committed an act of trespass on the open land which was situated on the northern side of the property bearing Municipal Census No. 1078/1/2/3 by illegally putting two gullas with a view to run the pan-shop and tea-stall respectively from the open space. The learned Judge, after going through the entire gamut of oral deposition and documentary evidence, held that the plaintiffs have proved that the allotted shop and the tea-stall were run by defendant Nos. 3 and 4 who were sons-in-law of defendant No. 1 and, therefore, they are required to be evicted from the tea stall and the shop. In view of the overwhelming evidence on record of the case, the learned Judge held that since the defendants have committed trespass over the open space, which was of the ownership of the plaintiffs, the defendants are required to be evicted and, therefore, the suit of the plaintiffs FA/2801/2007 5/16 JUDGMENT was decreed and it was held that the defendants had illegally committed trespass over the disputed open space situated on the northern side of the suit property bearing Municipal Census No. 1078/1/2/3 of Survey No. 16 of Madhupura Ward, Ahmedabad by putting pan-gulla and tea-stall in the open space. The defendants were also further directed to remove the said pan-gulla and tea-stall from the disputed open space within a period of one month from the date of the judgment. Being aggrieved by the aforesaid order passed by the learned Judge, the defendants-heirs (defendant Nos. 1, 1.1 to 1.7, 2 and 2 A to 2 H) have preferred the present appeal against original plaintiffs (respondent Nos. 1 to 4 in the present appeal). Original defendant Nos. 3 and 4 are also joined but as respondent Nos. 5 and 6 respectively. In the circumstances, for the sake of convenience, any reference to the respondents would be reference to respondent Nos. 1 to 4 / original plaintiffs only. Similarly, the appellants have reference to original defendant Nos. 1, 1.1 to 1.7, 2 and 2 A to 2 H. 2. Learned Advocate Mr. Jigar P. Raval representing the appellants submitted that the learned Judge has misread and misinterpreted the evidence on record of the case in holding that the appellants were rank trespassers and, therefore, they are required to be evicted from the disputed open space. The learned Advocate submitted that even proper issues were not framed by the learned Judge while deciding the suit filed by the respondents. The learned Judge ought to have held that as the present appellants have not committed any trespass over the open space and since they are in possession of the open space for more than 30 years, they cannot be evicted. The learned FA/2801/2007 6/16 JUDGMENT Judge ought to have come to the conclusion that the open space in respect of which the respondents had filed the suit was part of the tenanted premises and it was land appurtenant to the tenanted premises. Even the learned Judge has not given any reasoning in that regard. It has been contended on behalf of the appellants that the respondents had on earlier occasion filed various suits against the appellants on many grounds with a view to harass the appellants by filing bogus and frivolous litigation. It has also been submitted by the learned Advocate that on earlier occasion, a suit bearing No. 1866 of 1987 was filed in the Small Causes Court wherein identical questions were involved and, therefore, the learned Judge ought not to have entered into the merits of the matter and decreed the suit filed by the respondents. The learned Advocate submitted that in view of the evidence on record of the case, the present appeal deserves to be allowed and the order passed by the learned Judge be quashed and set aside. The learned Advocate, in the alternative, submitted that as the issue with regard to appurtenant land with the tenanted premises has not been discussed by the learned Judge at length and in great detail, it is a fit case to remand the matter to the learned Judge to consider the entire issue afresh by giving opportunity to both the sides to lead evidence. The learned Advocate placed reliance on the following judgments in support of the submissions canvassed at the Bar: (i) Vasudeva Panicker And Others Vs. A. V. Viswanath Iyer And Others, (1990) 2 SCC 278. In this judgment, the learned Advocate has referred FA/2801/2007 7/16 JUDGMENT to paragraph 6 of this judgment which is reproduced hereinbelow: “Counsel for the appellants argued that the High Court made a new case to the landlord by stating that the demised premises was the building with the land appurtenant thereto as against the case pleaded that the entrustment was only the building and not the land. We do not agree that it is a new case. The appellants are admittedly in possession of the land as well as the building under Ex. A-1. If the lease was not in respect of the land but the building, it goes without saying that the land was appurtenant to the building. Therefore, it cannot be said that the High Court has committed an error in considering the case of the parties. It will be seen that the total extent of the land is only 22 cents which is less that ¼ of an acre. It is not uncommon to have such a house site either in the rural or urban areas. There are fruit bearing tees of different varieties. The rent stipulated is in cash at the rate of Rs. 8 per month. The lease was for a period of one year. The landlord has reimbursed the costs of repairs of the building. These are indicative of the intention of the parties that the demise was not an agricultural land but a building. The High Court has taken into consideration all these factors to arrive at the conclusion that the lease was only of the building with the land appurtenant thereto. In our opinion, the order of the High Court does not call for interference.” In view of the observations made by the Apex Court in paragraph 6 of the judgment, the learned Advocate submitted that if the land is appurtenant to the building, then the appellants could not be evicted from the premises and, therefore, the finding given by the learned Judge is not legal and proper and requires to be quashed and set aside. (ii) Nutan Mechanical Works, Surat Vs. Mahant Ramdevasji Gurj Ramji Mandir, AIR 2001 GUJARAT 101. FA/2801/2007 8/16 JUDGMENT In this judgment, this Court has considered the provisions of Section 28 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act and the jurisdiction of the Rent Court in a suit for declaration and injunction for restraining the landlord from making construction on land appurtenant to the suit premises. The question involved was as to whether the strip of open land used by tenant is land appurtenant to suit premises and whether the tenant can use the tenanted premises without hold of the said land. The question which was raised before the Court could be decided by the Rent Court under Section 28 (1) of the Act. In view of the ratio laid down in the aforesaid judgments, the learned Advocate submitted that it was within the purview of the Rent Court to decide the issue with regard to appurtenant land to the tenanted premises which was given to the appellants and, therefore, the finding recorded by the learned Judge requires to be quashed and set aside. Thus, the learned Advocate for the appellants submitted that the appeal requires to be allowed in view of the overwhelming documentary and oral evidence produced by the appellants and therefore, the judgment and order passed by the learned Judge requires to be quashed and set aside. (iii) Dwarka Prasad Vs. Dwarka Das Saraf, AIR 1975 SC 1758. The learned Advocate for the appellants relied on this judgment and referred to head note 'A' of the judgment which is produced hereunder: “A lease of an 'accommodation' must essentially be of a building - not a business or industry together FA/2801/2007 9/16 JUDGMENT with the building in which it is situated. Of course, a building which is ordinarily let, be it for residential or non-residential purposes, will not be the bare walls, floor and roof, but will have necessary amenities to make habitation happy. That is why the legislature has fairly included gardens, grounds and out- houses, if any, appurtenant to such building. Likewise, leases sometimes are of furnished buildings and that is why 'any furniture supplied by the landlord for use in such building' is treated as part of the building. These additions are appurtenant, subservient and beneficial to the building itself. They make occupation of the building more convenient and pleasant but the principal thing demised is the building and the additives are auxiliary. Where the lease is composite and has a plurality of purposes, the decisive test is the 'dominant purpose of the demise. Under the Act the protected category of accommodation is residential and non-residential buildings and not business houses. The legislature by the amending Act clarified what was implicit earlier and expressly carved out what otherwise might be mistakenly covered by the main definition. The proviso does not expand, by implication the protected area of building tenancies to embrace 'business' leases. A lease of a lucrative theatre with expensive cinema equipment, which latter pressed the lessee to go into the transaction, cannot reasonably be reduced into a mere tenancy of a building together with fittings which but make the user more comfortable. When the last renewed lease of 1959 was executed, there was a running cinema business and further the rent apportioned for the building qua building was only a fraction of the rent for the costly fixtures intended for the cinema business. Held that the lease sued on did not fall within the scope of the definition of 'accommodation”. In view of the judgment rendered by the Apex Court, the learned Advocate submitted that the present case would also be covered by the ratio laid down in this judgment. FA/2801/2007 10/16 JUDGMENT 3. Learned Advocate Mr. D. J. Bhatt for the respondents contended that the property in question bearing Municipal Census No. 1078/1/2 was given to the appellants as the heirs of Ganibhai Ramzanbhai. The appellants committed an act of trespass on the open land which was given to them on the northern side of the property by putting up two gullas for running pan shop and tea-stall and, therefore, the learned Judge has rightly held that they have committed trespass over the open space which was not allotted to them. The learned Judge, after considering the deposition adduced by Hiraben Ganibhai Ramzanbhai vide Exh. 44, has rightly come to the conclusion that the appellants had encroached upon the open space of land which was not allotted to them. Thus, there is no reason to interfere in the appeal preferred by the appellants. It has been strenuously contended on behalf of the appellants that Civil Suit No. 1866 of 1987 was filed in the Small Causes Court on identical questions and issues, but it is not correct to say that the suit was identical with the present suit which was filed by the respondents before the Court and, therefore, there is no substance in the contention raised by the learned Advocate for the appellants and the same deserves to be dismissed. The learned Advocate submitted that the question with regard to land appurtenant to the open space or the tenanted premises has been very well considered by the Trial Court, and in view of the detailed reasons assigned by the learned Judge, no interference is called for as the present appellants are the trespassers in the open space which was not allotted to them. Thus, the learned Advocate for the respondents submitted that since the appellants have not made out a case for setting aside the judgment and order FA/2801/2007 11/16 JUDGMENT passed by the learned Judge, the appeal does not call for any interference and the same may be dismissed with costs. 4. Heard learned Advocate Mr Jigar P. Raval for the appellants, learned Advocate Mr. D. J Bhatt for the respondents at length and in great detail. I have also perused the oral and documentary evidence led by both the sides before the Trial Court as well as the judgment and order passed by the learned Judge. 5. On re-appreciation and re-evaluation of the evidence on record of the case, it is evident that the plaintiffs had filed the suit against the defendants for trespassing over the open space situated on the northern side of the property bearing Municipal Census No. 1078/1/2/3 of Survey No. 16, Madhupura Ward, Ahmedabad and for mandatory injunction directing the defendants to remove the two gullas placed in the open space. On perusal of the plaint and the written statement, it becomes clear that the plaintiffs had purchased the suit property with the first floor and open space bearing Municipal Census No. 1078 and 1078/1/2/3 of Survey No. 16 of Madhupura Ward, Ahmedabad, admeasuring 88 Sq. Mtrs. from Devendra Ramanlal Mashruwala, Mukesh Ramanlal Mashruwala and Nilesh Ramanlal Mashruwala on 11-10-1984, and as per the case of the plaintiffs, on the ground floor of the suit property bearing Municipal Census No. 1078/1/2 Paiki, one Ganibhai Ramzanbhai was staying as a tenant on a monthly rent of Rs. 8 and after his death, defendants-heirs were staying as tenants. On behalf of the plaintiffs, one Ranchodbhai Lakhabhai Thakore has been examined vide Exh. 31 who FA/2801/2007 12/16 JUDGMENT happens to be the father of the plaintiffs. In his deposition, he has stated that the suit property was purchased by him from one Devendra Ramanlal Mashruwala on 11-10-1984 and the suit property comprised of one building and open space. Defendant No. 1 was tenant in respect of ground floor of the said premises and there was an open space on the northern side of the suit premises. Defendant Nos. 3 and 4 had put one lorry and one pan- gulla in the open space which was situated on the northern side of the suit premises in the year 1984. The said open space was not tenanted premises but defendant Nos. 3 and 4, who happened to be the sons-in-law of defendant No. 1, committed trespass over the open space. Even on perusal of the cross-examination given by this witness, it becomes clear that he has stated in the cross-examination that the entire building with open space was purchased by him. Defendant No. 1 was the tenant in respect of only two rooms. He has further denied in the cross-examination that his predecessor had let out two rooms along with open space to defendant Nos. 1 and 2. Devendra Ramanlal Mashruwala has been examined vide Exh. 42. In his deposition, he has stated that the suit property comprising of rooms with iron sheet roof, the first floor and the open space was owned by him and his brothers. The deceased Ganibhai Ramzanbhai was a monthly tenant in respect of two rooms and there was open space on the northern side of the said rooms which were not let out to defendant No. 1. The plaintiffs have examined one Pareshkumar Ranchodbhai at Exh. 71. In his examination-in-chief, he has FA/2801/2007 13/16 JUDGMENT reiterated the case of the plaintiffs and sought to prove the documents produced by them. In the cross-examination, he has deposed that when he purchased the suit-property, there were three rooms on the ground floor and one room on the first floor and open space on the northern side of the said property. He has further deposed that out of the said three rooms on the ground floor, defendant No. 1 was in possession of one room, which was 'L' shaped and the defendant was using the front portion of the said room as a coal shop. He has denied in the cross-examination that defendant No. 1 was a tenant in respect of two rooms and the open space in front of the said rooms. On perusal of the deposition adduced by Hiraben Ganibhai Ramzanbha vide Exh. 44, it becomes clear that she was staying in the room on the ground floor of the suit premises since she was 12 or 13 years of age. She has further deposed that there was a rent note executed between her and the original owner and she was given only ground floor of the suit premises on rent and no other premises. The monthly rent of the tenanted premises was Rs. 8/-. She has deposed that she was let out only one room with iron sheet roof on the ground floor but there were also other rooms with iron sheets surrounding the said rooms and she was told by the owner Ramanlal Sheth to use the same in case of need and, thereafter, she had handed-over the possession of the remaining premises to Ramanlal Sheth. There was open space behind the northern side of the room which was given to her and she had asked her sons to put pan gullas in the said open space. In her cross-examination, she has deposed that there was first floor on the said room of the ground floor which was in her possession and she had handed-over the possession of the FA/2801/2007 14/16 JUDGMENT first floor to the landlord 30 years back, and at the time of her cross-examination, she was in possession of one room on the ground-floor, two pan-gullas and one coal shop. Thereafter, she has admitted that she did not have any evidence to show that the open space on which pan-gulla and tea lorry were placed were let out to her. She has further admitted that she did not have any evidence to show that the old land owner had permitted her to use the open space. It was admitted by her in her deposition that the open space, on which tea lorry and pan- gulla were placed, were not let out to her but she was permitted to use the same by the old owner Ramanlal Sheth. I have also perused the deposition adduced by Kusumben Usmanbhai vide Exh. 45 who is the daughter of defendant No. 1 and Ganibhai. She has stated that after her marriage with Usmanbhai, she was staying with defendant No. 1 in the suit premises during the day time and used to go to her matrimonial home at night. She has further deposed that the said premises was taken on rent from one Ramanlal in respect of which a writing was executed. The tenanted premises, as per her deposition,