FA/815/1980 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 815 of 1980 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 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 ? ======================================================= OMPRAKASH RAMRATAN CHORASIA - Appellant(s) Versus NATVARLAL JOITARAM - Defendant(s) ======================================================= Appearance : MR RN SHAH for Appellant(s) : 1 - 3. DS AFF.NOT FILED (N) for Defendant(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 11/04/2008 ORAL JUDGMENT 1. The present appeal under Section 96 of the Code of Civil Procedure has been preferred by the FA/815/1980 2/4 JUDGMENT appellant-original plaintiff against the order dated 21.12.1979 passed by the Hon'ble City Civil Court, Ahmedabad, Court No.5 in Civil Suit No.3274/1977. 2. The case of the appellant was that the defendant is a trespasser of the suit shop, more particularly described in paragraph nos.1 and 8 of the plaint, for possession thereof and for Rs.300/- by way of mense profits at the rate of Rs.75/- per month from 01.06.1977 to 30.09.1977. 3. After having heard both the sides, the Trial Court has held that the defendant is not a trespasser of the suit shop and is in lawful possession thereof. He was also partner in the business of hair dresser and as such to be in possession of the suit shop. In that view of the matter, the Court has held the Issue No.1 in negative and dismissed the suit filed by the original plaintiff. 4. Being aggrieved by the aforesaid order, the appellant-original plaintiff has preferred the present First Appeal. 5. Heard learned counsel appearing for the respective parties. 6. Learned counsel for the appellants, Mr.R.N. Shah has contended that while passing the decree, the FA/815/1980 3/4 JUDGMENT learned Trial Court ought to have held that the defendant is in illegal possession of the suit shop. It is also submitted that the defendant was neither the family member of the deceased, Revandas Ranchhoddas nor was residing with him in the suit shop. Raising the aforesaid contention, Mr.Shah has submitted that the present appeal may be allowed and the impugned order may be quashed and set aside. 7. The Trial Court while considering the oral as well as documentary evidence has discussed the evidence in detailed in the Paragraph No.6 of the impugned judgment and reached the conclusion that from the material on record, it is clear that the defendant is not a trespasser of the suit shop and is in lawful possession thereof. The defendant is shown to be son of the paternal uncle of the deceased tenant Revandas Ranchhoddas of the suit shop. The defendant claims to be member of the family of the deceased Revandas and residing with the carrying on business as hair-dresser with the deceased tenant Revandas in the suit shop at the time of his death and also legatee under the will dated 5- 4-73 exh.44 of Revandas, as well as partner in the business of hair dresser and as such to be in possession of the suit shop. On the facts and FA/815/1980 4/4 JUDGMENT circumstances of the case, I find that the defendant has succeeded in proving his aforesaid case. It cannot be said on the material on record that the defendant's possession of the suit shop is that of the trespasser. 8. In view of the above, I do not find any merit in this appeal calling for any interference with the finding of the trial Court. Over and above, no evidence is shown to establish that the findings are contrary to documents. 9. In the result, the appeal fails. It is hereby dismissed with no order as to cost. Sd/- (K.S.JHAVERI, J.) /patil