FA/199/1984 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 199 of 1984 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 ? ====================================== KALPABEN VASUDEO Versus ABDULHAMID @ BACHUBHAI A. AND ANOTHER ====================================== Appearance : MR MD PANDYA for Appellant Nos.1, 1.2.1, 1.2.2, 1.2.3,1.2.4 None for Respondent Nos.1, 1.2.1,1.2.2 - 2. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 02/09/2008 ORAL JUDGMENT 1. By way of this appeal, the appellant has challenged judgment and order of the City Civil Court dated 31st January 1983, whereby the suit filed by the plaintiff was dismissed. 2. The facts in brief, as emerging from record, are as under: FA/199/1984 2/5 JUDGMENT 3. The case of the landlady is that she is owner of a room, bearing Municipal Census No.1046/A/1/1 corresponding to Survey No.15/9, situated in Final Plot No.15 and the defendant - tenant had taken that property or premises at monthly rent for personal residential use. Case of the plaintiff - landlady is that on or about 6-6-1978 i.e. shortly before filing of the suit, tenant had put up curtain in front of the room let out to her and covered the open land in front of the demised premises and started making exclusive use of the land or ground pertaining to demised premises. It is also stated that defendant started using the said land by putting auto-rickshaws and started repairing work and thereby committed breach of Town Planning Rules as well as Corporation Rules and terms of tenancy. It is also alleged that by such act, the defendant is causing nuisance and annoyance to other tenants and inspite of a registered notice to the defendant to desist from such act, defendant continued the wrongful act. Therefore, suit being Civil Suit No.2383 of 1978 is filed for permanent injunction as well as for removal of the unauthorized construction in the margin land of the suit land. It is also alleged that during the pendency of the suit deceased tenant had illegally and unauthorizedly sublet or transferred the suit land to defendant no.2 and, therefore, defendant no.2 is added as party for effective execution of the decree. Said suit was resisted by defendant no.1 by filing written statement at Exh.7, contending that City Civil Court has no jurisdiction to try said suit. It is also averred that open portion in front of the room was let to her and she and her son were keeping hackney carriages in said portion and, therefore, said land had always been of non-residential character. However, thereafter, her son has started business of auto- rickshaw, which is being parked in said open land. It is averred that initially hackney carriages were kept in open land and now auto- rickshaw is being parked in said land and, therefore, the defendant tenant has right to use said land for parking auto-rickshaw. It is also FA/199/1984 3/5 JUDGMENT stated that by such use, no inconvenience is caused to the landlady and if the tenant is prevented from such use, it will cause inconvenience to her. It is also denied that tenant has committed breach of Town Planning or Corporation Rules or terms of tenancy. By filing additional written statement, it is also denied by defendant - tenant that there was any encroachment by tenant on the land of the plaintiff. Defendant no.2 has also filed written statement at Exh.53 and denied that disputed land has been sublet by defendant no.1 to defendant no.2. It is also stated that plaintiff has also filed a suit in Ahmedabad Small Causes Court on the same cause of action and this Court has no jurisdiction to entertain and try this suit. 4. After considering the evidence on record, trial Court dismissed the suit by the impugned judgment. Being aggrieved by it, the appellant has filed this appeal. 5. Heard Mr.M.D.Pandya, learned advocate appearing for the applicants. Nobody appears on behalf of the respondents. Mr.Pandya submitted that inspite of his best efforts he could not contact his client and, therefore, he could not take any instructions from his client. He submitted that while passing impugned judgment, trial Court has not properly appreciated oral and documentary evidence on record. He submitted that the open land in front of the demised premises is marginal land and it is to be used only for ingress and egress. He also submitted that shed over the margin land is constructed by original tenant and, thereafter, it was used for parking and repairing auto- rickshaws. He also submitted that the open land in front of the tenanted premises was not let to the defendant - tenant. He also submitted that trial Court has erred in holding that even if it is assumed that open land does not form part of the demised premises, the only right available to FA/199/1984 4/5 JUDGMENT the plaintiff under condition no.5 of rent receipt is to claim compensation or damages from the tenant. He, therefore, submitted that the impugned judgment may be reversed and this appeal may be allowed. 6. I have considered the submissions made on behalf of the appellants and also gone through the judgment of the trial Court and other relevant documents. It is observed by the trial Court that some part of the land which was granted to predecessor-in-title of the plaintiff was to be left open to sky, however, it is provided in terms of tenancy that if such open land is to be used for the purpose other than passage, the landlord was entitled to damages for the same. As per condition no.5 of rent receipt, it is clear that the open land can be used subject to payment of compensation or damages, therefore, it is rightly observed that the plaintiff can claim compensation or damages from the tenant. It is also observed that in view of changed circumstances there is change in mode of transport and, therefore, instead of hackney carriage now auto- rickshaw is parked in said open land by the tenant. It is further observed that by pressurizing the tenant, plaintiff wants the tenant to vacate the premises or demand more rent. In my view, after considering the evidence on record, trial Court came to the just conclusion, which is not required to be interfered with by this Court. I am in complete agreement with the reasonings given and finding arrived at by the City Civil Court while passing impugned order. No other evidence is shown to me to take a contrary view. Therefore, I do not find any reason to interfere with the impugned judgment. 7. For the reasons stated herein above, the appeal deserves to be dismissed and the same is dismissed with no order as to costs. However, it is made clear that since learned advocate for the appellant could not FA/199/1984 5/5 JUDGMENT contact his client and no instruction is taken from the appellant, the appellant is at liberty to file appropriate application in case of difficulty. (K.S.Jhaveri, J.) *malek