AO/125/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 125 of 2008 with CIVIL APPLICATION No.4729 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================= 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 ? ========================================= PRAJAPATI RAMESHBHAI LAXMANBHAI - Appellant(s) Versus PRAJAPATI HIRABHAI KARSANBHAI - Respondent(s) ========================================= Appearance : MR MP PRAJAPATI for Appellant(s) : 1, None for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 27/06/2008 ORAL JUDGMENT 1. This appeal has been preferred against an order dated 3.4.2008 passed by the Additional District Judge, Patan in Civil Misc. Appeal No.1 AO/125/2008 2/6 JUDGMENT of 2008, by which the learned Court rejected the appeal and confirmed the order dated 19.12.2007 passed by the learned trial Court below Exhibit 5 in Regular Civil Suit NO.43 of 2007. 2. Mr. Prajapati, learned advocate appears for the appellant. He has made only one submission that plaintiff i.e. appellant could not establish his case only for the reasons that in the village, there is no practice of rent receipt and that therefore, the appellant - plaintiff could not produce the rent receipt. This is the only ground on which Mr. Prajapati, learned advocate has tried to assail the impugned order. Except this contention, no other contention is raised. 3. The appellant herein is the original plaintiff. The plaintiff - appellant approached the trial Court by way of Regular Civil Suit NO.43 of 2007 on the premise that he owns and possesses the shop running in the name and style of "Sagar Mithaighar", bearing No.825/ Paikee/1. It is the case of the plaintiff - appellant that adjoining two shops bearing No.825/Paikee/2 and No.825/Paikee/3 are in his possession as a tenant and that the plaintiff - appellant has tenancy right in the said properties and he has been utilizing the said properties as godown. It appears that the plaintiff - appellant contended before the learned trial Court that the first shop i.e. shop No.825/Paikee/1 was purchased by the appellant on 22.5.2007, by executing a sale deed from the defendant - present AO/125/2008 3/6 JUDGMENT respondent and other two shops are in his possession as tenant, however, the respondent has not been issuing rent receipt. It appears that the plaintiff - appellant approached the learned trial Court on the basis of apprehension that the defendant i.e. respondent herein was about to execute the sale of said two shops with third party. In view of the said apprehension, he filed aforesaid Regular Civil Suit and also preferred application for interim relief being Exhibit 5 application. 4. From the order below Exhibit 5, it appears that the learned Court had issued notice and in response to the notice, the defendant - respondent had filed his reply/written statement at Exhibit 9. The respondent appears to have admitted before the learned trial Court the fact about the sale deed executed between him and appellant - plaintiff dated 22.5.2007 in respect of the shop bearing No.825/Paikee/1. However, he appears to have denied the claim of the appellant - plaintiff that the appellant - plaintiff is tenant of two shops and/or that the appellant - plaintiff is using the said two shops as godown. It appears that the respondent on the contrary asserted before the trial Court that the two shops were in his possession and said shops were used by him for his business purpose, where he was carrying on his business of cutlery, stationary etc. 5. After considering the case of the plaintiff and defendant, the trial AO/125/2008 4/6 JUDGMENT Court framed issues before passing order below Exhibit 5. After examining the entire material obtaining on record in the suit proceedings, the learned court came to the conclusion that the appellant - plaintiff had failed to establish that he was tenant of other two shops. The learned Court also recoded findings of the fact that plaintiff was not able to establish his claim that he was paying rent of Rs.900/- and that the appellant - plaintiff had not produced any evidence to establish his claims and assertions. 6. The learned court has further recorded that upon examining the evidence, it did not come out that appellant - plaintiff was in possession of the said two shops as tenant. After having recorded the findings of the fact that the appellant - plaintiff failed to establish by any cogent and/or corroborating evidence, his claims that he was tenant of the said other shops and/or that he was in possession of two shops, the trial Court declined to grant interim relief prayed for by the appellant - plaintiff by virtue of Exhibit 5 and rejected Exhibit 5 application by order dated 19.12.2007. 7. Being aggrieved by the said order, the appellant - plaintiff preferred Civil Misc. Appeal No.1 of 2008 and after hearing the parties to the said appeal, the learned Appellate court passed an order on 3.4.2008, wherein the learned Appellate Court has also confirmed the AO/125/2008 5/6 JUDGMENT findings of the learned trial Court. The learned trial Court has also made reference of panchnama and recorded finding that from he said panchnama also it does not transpire that the plaintiff - appellant i.e. present appellant is in possession of the said other two shops as tenant. The learned lower Appellate Court upon being satisfied about the order of the learned trial Court, rejected the appeal by order dated 3.4.2008 and confirmed the order of the learned trial Court. 8. It is pertinent that the learned Courts have also made reference of another document/ evidence on record viz panchnama and recorded that even from the said document, the appellant was not able to establish any of his claims and/or allegations. It is needless to state that the contention of non-availability of rent receipts does not carry the case of the appellant any further and does not support him in assailing the said two orders, since there is, on one hand, no other supporting corroborating evidence which may lend any support to his claims whereas on the other hand, even the panchnama, as found by the Court, does not support appellant's case. Even if his contention that rent receipts were not being issued, is to be presumed only for the sake of testing the appellant's case, then also in absence of any other material, which could help the appellant to successfully assail the impugned order, it cannot be said that the learned Courts have committed any error inasmuch as the learned Courts have taken into account all documents AO/125/2008 6/6 JUDGMENT and entire material obtaining on record and have recorded the findings on such material and documents. Under the circumstances, this Court does not find any strong and good reason or justification to exercise jurisdiction under Article 227 of the Constitution of India and to interfere with the said two orders and concurrent findings. On examination of the said orders, no error of law or jurisdiction comes out and it does not appear that the Courts have committed any apparent error in passing the said orders. Since no case for interference is made out, the Appeal from Order is rejected with no order as to costs. Civil Application stands also disposed of as dismissed also. (K.M.THAKER, J.) ynvyas