CRA/933/1988 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 933 of 1988 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 ? ====================================== SHANTABEN K PATEL AND OTHERS Versus NATVARLAL A SONI ====================================== Appearance : MR MEHUL S SHAH for Applicants,MR SURESH M SHAH for Applicants. MR DIPAK R DAVE for Opponent. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 14/08/2008 ORAL JUDGMENT 1) By way of this Revision Application, the original plaintiffs have challenged judgment and order dated 30th April 1988 passed by the appellate Court whereby appeal preferred by the original defendant was allowed and decree passed by the trial Court was reversed and the CRA/933/1988 2/8 JUDGMENT present respondent was directed to pay Rs.30/- by way of rent. 2) The facts in brief, as emerging from record, are as under: 3) The suit property is situated in “Patel Vas”, village-Bhat, Taluka – Gandhinagar. It is the say of the plaintiff in the suit that he resides at Ahmedabad and he has got a house bearing no.22 at village-Bhat, Taluka Gandhinagar. Upper portion of the said house is rented to defendant at Rs.10/- and lower portion of the house is also rented at Rs.20/- per month to defendant in the year 1974. There was another tenant on the ground floor. Since there was marriage of defendant's daughter, ground floor was given to the defendant and thereafter defendant continued the possession. In the suit, the plaintiff has stated three grounds. It is the say of the plaintiff that the defendant is not regularly paying the rent, and is in arrears of rent and, therefore, the plaintiff is entitled to get possession. Secondly, it is the case of the plaintiff that plaintiff's mother- in-law, who is a widow, was residing at Naroda and since the said house has fallen down due to heavy rains, the plaintiff requires suit premises for bona fide use. Thirdly, it is the say of the plaintiff that tenant has acquired suitable residential premises in village Bhat, and the defendant has also taken possession of the said property. Therefore, also the suit premises is required to be vacated. On these grounds, legal notice dated 18-1-1982 was given, however, the same was not replied to and, therefore, the suit is filed to vacate the suit premises. 4) Suit was resisted by the defendant by filing written statement at Exh.8, wherein it is stated that rent of the premises is excessive and standard rent should be fixed. It is also stated that though money order was sent by defendant, the same was refused by the plaintiff. It is also stated that since the plaintiff either wants to increase the rent or wants to sell away the property, therefore, the suit in question is filed. It is also CRA/933/1988 3/8 JUDGMENT stated that the defendant has not acquired any alternative accommodation. 5) Learned Judge has framed issues at Exh.9, some of which were arrears of rent, personal and bona fide requirement and acquisition of alternative accommodation by the present respondent. After considering oral as well as documentary evidence placed by both the sides and after discussing issue regarding arrears of rent in paragraphs 10 and 11 of the judgment, trial Court has passed of eviction. Accordingly, issue regarding arrears of rent was also decided in favour of the plaintiff. Being aggrieved by it, the original defendant has preferred an appeal before the appellate Court. The appellate Court has reversed the finding of the trial Court on the basis of evidence of Shri Vishnubhai Soni, brother-in-law of the defendant and held that the tenant has not acquired suitable accommodation. The appellate Court has reversed the finding of bona fide requirement on the ground that, during the pendency of appeal, mother-in-law of the present petitioner has expired and, therefore, there is no need for the rented premises. Being aggrieved by it, the petitioners have filed present Civil Revision Application. 6) I have heard learned advocate, Mr.Shah for the petitioners and learned advocate Mr.Dave for the respondent. Learned advocate for the petitioners submitted that appellate Court has committed an error by setting aside decree for possession though there was clear proof of allotment of residential premises by Gujarat Housing Board in the name of wife of the respondent, where they were staying together. He also submitted that the Court is required to look into the position, which was prevailing on the date of filing of the suit, and appellate Court has committed grave error by not discussing the evidence while allowing appeal of the defendant. CRA/933/1988 4/8 JUDGMENT 7) Learned advocate for the respondent has relied on the decision of this Court in the case of Heirs of Jayantilal Kanjibhai v. Rameshchandra Uttamram reported in 2000 (3) GLH 76 and submitted that acquisition of alternative accommodation by wife is not acquisition by the defendant husband. He also submitted that they are not in a position to stay in the property acquired by the wife. It is also contended that the alleged acquired property is now no longer with the present respondent but the same is disposed of. In that view of the matter, as on today, there is no alternative accommodation. Therefore, the appellate Court has rightly reversed the finding of the trial Court. 8) I have gone through the evidence shown to me by both the sides. I have also gone through the judgments of both the Courts below and also considered the decision relied on by the respondent. In my view, the reasoning of the trial court in paragraph 10 and 11 of the judgment is just and proper, wherein it is observed as under: “10. Issue No. 5 The learned advocate for the plaintiff has submitted that the defendant has received a premises in the name of his wife. In support of this fact, a witness Khushalbhai for the plaintiff states in his evidence exh. 24 on oath that the defendant has another premises in the name of his wife at village Bhat. Gujarat Rural Housing Board, Gandhinagar has allotted a premises in the name of defendant's wife. The defendant's wife is handed over the possession of house no. 185. The said house is in the ownership of the defendant and nobody stays therein at present. This fact is denied in the cross examination that the defendant wrongly states to have received a premises from Gujarat Housing Board. CRA/933/1988 5/8 JUDGMENT The defendant has not received any such premises. But plaintiff's witness Chinubhai Tarachand Shah is examined vide exh. 35. He states in his evidence that he is working as a Deputy Mamlatdar in Gujarat Rural Housing Department. Housing Department has constructed houses at village Bhat and a house is allotted to Kanchanben Natverlal Soni by the department. At first she was allotted No. 185 and thereafter a house is given by transfer. According to exh. 36 Kanchanben has taken over the possession of house no. 109 from date 30/11/1981. The said witness was, in the cross examination, asked only that 'whether persons purchase benami houses from Rural Housing Board?' But the said witness has no information with regard to this fact. But the said witness is not asked, in the cross examination, about the fact that the defendant's wife has not received a house. Therefore there is no reason to disbelieve the evidence exh. 35 on oath by the said witness. The defendant states in his evidence that a house, in the housing board, is in the name of his wife but it belongs to his brother-in-law. Neither he nor his wife has any right in the said house. The house is applied for in his wife's name only in order to have a luck. That house is vacant at present and his brother-in-law is paying installments of the said house and the possession is with his brother-in-law. The defendant has denied that he has paid the amount for the house which is in the name of his wife in Gujarat Housing Board and he is in possession thereof at present. The defendant's brother-in- law Vishnuprasad Pitamber Soni exh. 68 is examined in this respect. He states in his evidence that the defendant is his brother-in-law (Sister's husband). His sister's name is Kanchanben who is the wife of the defendant. The house, in the name of Kanchanben in Housing Board, at village Bhat is in his ownership CRA/933/1988 6/8 JUDGMENT and he is paying the installments of the said house. He is in possession of the said house and it is closed at present. The said witness states in his cross examination that he has been residing at Dabhoi for last twelve years and his native is Abala in Taluka Padra. He has a house in his native. Many houses of Housing Board are constructed at Dabhoi. He dose not reside at the village Bhat. His sister has not executed any writing about money to him. He has documentary evidences to show that he has paid installments of the house. 11. On going through the documentary evidences and the depositions of all the said witnesses, it is the case of the plaintiff that Gujarat Rural Housing Board, Gandhinagar has allotted a house in the name of defendant's wife at village Bhat. The plaintiff's witness Khushalbhai is supporting this fact in his evidence on oath. The Deputy Mamlatdar Shri Chinubhai of Gujarat Rural Housing Department is supporting this fact. Whereas on looking into the documentary evidence exh. 36, the plot area of house No. 109 is admeasuring 69.96 Sq.mt. and the possession thereof is handed over in the name of Kanchanben Natvarlal Soni on date 30/11/1981 whereby it is clearly established that the defendant's wife has received a house from Gujarat Rural Housing Board. Moreover the house No. 185 is in the name of defendant's wife as per the certificate Mark-B produced by the estate officer of housing board Gandhinagar. Now when there is documentary evidence that there is a house in the name of defendant's wife in housing board at village Bhat and the defendant's wife has received its possession and in the circumstances that the plaintiff and the plaintiff's witness, who is Mamlatdar in housing board, are supporting the documentary CRA/933/1988 7/8 JUDGMENT evidence by the depositions on oath and when the defendant has not challenged the said fact, there is no reason to disbelieve this fact. It is the case of the defendant that the said house is kept by the defendant's brother-in-law in the name of defendant's wife and the defendant has examined his brother-in-law in this respect. His brother-in-law is residing at village Dabhoi. He belongs to Taluka Padra. He has his own house in his native at Taluka Padra. According to his evidence, there are houses of Gujarat Housing Board at village Dabhoi. He has not been able to state specifically as to what is his intention to keep a house at village Bhat. As per his evidence, he has produced the receipt mark 76/1 about the installment amount and the said receipt is dated 4/06/1983 meaning thereby it is after the suit. If the defendant's witness Vishnubhai has paid all the installments of the said house in the housing board, he could have produced the receipts of all the installments and not only one receipt mark 76/1 in this court. The defendant's witness has not produced any other receipts which shows that the receipt exh. 76/1 might have been obtained in the name of witness Vishnubhai in order to raise an evidence after filling the suit and the said receipt, on behalf of the defendant, is not exhibited. If the said receipt is valid, the defendant should have got it exhibited after examining the witness in this respect. In view of all these facts, it is certainly established from the documentary evidences and evidence on oath that sufficient alternative facility for residence is available with the defendant at village Bhat. Therefore the issue no. 5 is decided in affirmative.” 9) Considering the document of sale deed in favour of wife of the respondent, and considering the fact that the possession of said premises CRA/933/1988 8/8 JUDGMENT is taken by the tenant, it is sufficiently established that the original tenant has acquired suitable accommodation. The defence taken by the tenant that it was a benami transaction is rightly not accepted by the trial Court. In my view, the appellate Court has committed an error in reversing the finding of the trial Court without appreciating the evidence on record. Decision relied on by the respondent will not be helpful to the respondent and the appellate Court has committed an error on facts in reversing the finding of the trial Court. Therefore, this Revision Application is required to be allowed by quashing and setting aside finding of the appellate Court and view taken by the trial Court is required to be restored. Accordingly, finding of the trial Court is restored whereby eviction decree is passed against the tenant. However, tenant is granted time upto 15th January 2009 to vacate the premises on usual undertaking that he will hand over vacant and peaceful possession of the suit premises as ordered by this Court and will continue to pay mesne profit to the petitioners until the suit premises is vacated. 10) Accordingly, this Civil Revision Application is allowed to the aforesaid extent. Rule is made absolute accordingly with no order as to costs. (K.S.Jhaveri, J.) *malek