SA/213/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 213 of 2008 With CIVIL APPLICATION No. 10793 of 2008 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 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 ? ========================================================= MAHESHBHAI CHANABHAI GOHEL & 1 - Appellant(s) Versus SHANTILAL THAKORDAS - Defendant(s) ========================================================= Appearance : MR SANDEEP N BHATT for Appellant(s) : 1 - 2. None for Defendant(s) : 1, 1.2.1, 1.2.2,1.2.3 ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 18/09/2008 ORAL JUDGMENT 1. The present appeal has been filed by the appellants who were the defendants before the trial Court being SA/213/2008 2/9 JUDGMENT aggrieved by the judgment and decree dated 30.10.2007 rendered by the learned Additional District Judge, Rajkot in Regular Civil Appeal No.177 of 2005, whereby the judgment and decree dated 19.10.2005 passed by the learned Principal Senior Civil Judge, Rajkot in Regular Civil Suit No.1276 of 2001 has been confirmed. 2. The suit was filed by the predecessor in title of the present respondents who are the landlords of the suit property. The appellants, who were the defendants before the trial Court, claimed to be the tenants. For the sake of convenience, the parties will be referred to as they appeared before the trial Court, namely as plaintiff and the defendants. 3. The plaintiff before the trial Court was Labhuben Thakordas, widow of Thakordas Jankidas. The plaintiff filed the suit against the defendants, to recover vacant possession of the suit property i.e. Two small rooms hereinafter mentioned as “suit premises” from the defendants. 4. The case of the plaintiff was that her late husband namely Thakordas Jankidas, had been allotted land admeasuring about 1297.3-62 sq.yds. by the Collector, Rajkot, whereupon he had constructed five rooms in a row. Out of SA/213/2008 3/9 JUDGMENT these five rooms, the plaintiff was living in one room and two rooms were rented out to some other persons and the remaining two rooms (suit premises) were given to the defendants by the husband of the plaintiff, to reside in, on account of good relations without charging any rent. It is the specific case of the plaintiff that the defendants are not tenants and were permitted to reside in the suit premises due to good and cordial relations during the life time of her husband. It is the case of the plaintiff that no relationship of Landlord and tenant exists between the plaintiff and defendants. It is asserted that however, the defendants have now started keeping cattle in the suit premises, which causes annoyance and nuisance and although the plaintiff has asked the defendants to hand over the vacant possession of the suit premises, they failed to do so, and therefore, the plaintiff filed the suit praying for the relief as mentioned, hereinabove. 5. The case of the defendants before the trial Court was that they are tenants of the suit premises and are paying Rs.125/- per month as rent. However, they could not produce any rent receipts as according to them, none were issued either by the late husband of the plaintiff or by the plaintiff herself. On the basis of the evidence on record as well as the SA/213/2008 4/9 JUDGMENT pleadings of the parties, the trial Court has framed as many as 8 issues. After going through the documentary evidence on record, the trial Court arrived at the specific finding to the effect that there is no relationship of landlord and tenant between the plaintiff and the defendants and that the defendants have failed to produce any documentary evidence to prove that they are tenants of the plaintiff and are occupying the suit premises in that capacity. It was also found by the trial Court that the defendants have failed to produce evidence to the effect that they have been paying rent to the plaintiff and, therefore, the suit of the plaintiff was decreed. Being aggrieved by the judgment and decree passed by the trial Court, the defendants, initially preferred an appeal before the First Appellate Court, which was dismissed by judgment dated 30.10.2007. 6. The defendants had, thereafter, preferred a second appeal before the High Court, which was registered as Second Appeal No.133 of 2006. The High Court remanded the appeal to the First Appellate Court for a fresh decision, after giving due opportunity of hearing to both the parties within a period of six months. After hearing the parties, the First Appellate Court appears to have made efforts to negotiate and arrive at SA/213/2008 5/9 JUDGMENT an amicable settlement between the parties, which seems to have failed. After hearing the submissions of the learned counsel for the respective parties and after going through the evidence on record, the First Appellate Court has confirmed the findings arrived at by the trial Court in judgment and decree dated 30.10.2007. The First Appellate Court has dismissed the appeal of the defendants giving rise to the present appeal. 7. I have heard Mr.Sandip N. Bhatt, learned counsel for the appellants, at considerable length and have perused the judgments of both the Courts below as well as the material on record. Mr.Sandip N. Bhatt, learned counsel for the appellants has submitted that both the Courts below have arrived at erroneous findings. He has emphasized that the appellants (original defendants) are the tenants of the respondents (original plaintiffs) and has submitted that the oral evidence of the plaintiffs has not been properly appreciated by the trial Court, wherein the plaintiff has admitted that it is not true that rent was paid by the defendants to her husband and no receipts were given to them. According to the learned counsel for the appellants, this amounts to an admission that appellants were the tenants of the respondents and, therefore, the trial Court has fallen in error and the First Appellate Court SA/213/2008 6/9 JUDGMENT is also not right in confirming the findings of the trial Court. The learned counsel for the appellants has contended that the defendants were paying rent at the rate of Rs.125/- per month to the respondents, but no rent receipts were ever given to them, and the failure on the part of the appellants to produce documentary evidence in the shape of rent receipts cannot be taken to mean that there was no relationship of Landlord and tenant between the appellants and respondents. It is, therefore, prayed that the appeal be admitted, and allowed. 8. The only dispute and controversy between the parties is regarding their status. As per the version of the appellants, the suit premises were let out to them on rent and the appellants were paying Rs.125/- per month to the husband of respondent – late Thakordas Jankidas – original plaintiffs and predecessors in title of the respondent. 9. The issue No.3 framed by the trial Court was to the effect whether, the defendants (present appellants) prove that they had taken the suit premises on rent of Rs.125/- per month from Thakordas Jankidas. The finding of the trial Court on this issue is in the negative. The trial Court has examined the oral and the documentary evidence led by the parties in great SA/213/2008 7/9 JUDGMENT detail and on the basis of the evidence, it has been found that the defendants had good relations with the plaintiff and her late husband, and on account of cordial relations, the defendants were permitted to use the suit premises without payment of rent. The plaintiff has categorically denied that there is a relationship between her and the defendants, of landlord and tenant and she has denied that any rent was paid by the defendants to her late husband or that any receipt was given to them. The trial Court has recorded a finding that there is no relationship of landlord and tenant between the plaintiff and the defendants and has gone on to record that the statement made by the plaintiff to the effect that no rent was paid by the defendants to her late husband and no receipt was given to them, cannot be taken as an admission. The Courts below have found that the defendants were permitted to stay in the suit premises on account of cordial relations and the version of the defendants that they were staying in the suit premises ever since 1981 was not proved. The trial Court has categorically held that defendants have not been able to produce even a shred of evidence to prove that they were tenants of the plaintiff or that they were paying monthly rent of Rs.125/- It is noticed by the First Appellate Court that defendant No.1 who is the appellant No.1 herein, has admitted SA/213/2008 8/9 JUDGMENT in his cross-examination that he has no documents to prove, that he is a tenant and has also admitted that he had cordial relations with the plaintiff. After independently examining the findings of the trial Court, the First Appellate Court has confirmed the same and has dismissed the appeal of the appellants. 10. I have given deep consideration to the submissions advanced by the learned counsel for the appellants. After perusing the record, I find that findings of the trial Court have been arrived at on the basis of evidence on record. The First Appellate Court, has re-appreciated the evidence and has confirmed the conclusions arrived by the trial Court on the basis of evidence on record. The findings that the appellant is not a tenant of the suit premises is, therefore, a concurrent finding of fact. 11. In the above facts and circumstances and after perusing the averments made in the memorandum of appeal and the questions formulated therein, in my considered view, no question of law, leave alone any substantial question of law within the meaning of Section 100 of The Code of Civil Procedure, arises for determination by the Court in this appeal. SA/213/2008 9/9 JUDGMENT The conclusion of both the Courts below that the defendants are not tenants in the suit premises is a pure finding of fact, which cannot be gone into, at this stage. There is no illegality or perversity found in the judgments of both the courts, below so as to warrant interference. The appeal, therefore, stands dismissed. CIVIL APPLICATION No.10793 of 2008: As the appeal has been dismissed, the application for grant of interim relief does not survive and is dismissed accordingly. [SMT.ABHILASHA KUMARI, J.] bddave