FA/1867/1984 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1867 of 1984 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? -Yes. 2 To be referred to the Reporter or not ? -No. 3 Whether their Lordships wish to see the fair copy of the judgment ? -No. 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 ? -No. 5 Whether it is to be circulated to the civil judge ? -No. ========================================================= GANESH HUKAMJI - Appellant(s) Versus CHHAMUBEN WD/O.KEDARLAL MANGILAL & 6 - Defendant(s) ========================================================= Appearance : MR AVINASH K MANKAD for Appellant(s) : 1, MR ARUN K SHAH for Defendant(s) : 1 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 28/08/2008 ORAL JUDGMENT 1. By way of this appeal, the appellant-original defendant has challenged the judgment and order dated 27/9/1984 passed by FA/1867/1984 2/4 JUDGMENT the learned Judge, City Civil Court, Ahmedabad in Civil Suit No.3041 of 1980 whereby the learned Judge has decreed the suit filed by the plaintiffs. 2. Brief facts of the case are that the present suit is filed by the widow and the issues of deceased Kedarlal Mangilal Agarwala against the defendant-Ganesh Hukmaji praying for possession of the suit shop along with the mesne profits at the rate of Rs.2/- per day from 1/10/1979 to 22/9/1980 and up to the date of the decree. The case of the plaintiffs is that Municipal Census No.99-35, a shop situated in Asarwa Chhakadbhai Amaram's Chawl at Ahmedabad was with the deceased Kedarlal Mangilal on rental basis and he was running Gajanand cycle repairing works. Here, the cycles were used to be given on hire as well as for repairs. The deceased was attending the said business and for that there is registration in the Municipality regarding business in that shop belonging to the deceased. The plaintiffs have given the boundaries of the suit premises. According to the plaintiffs, Kedarlal Mangilal drowned in the river on 21/7/1977. As Kedarlal Mangilal expired and widow and minor children who are plaintiffs here are not able to attend the business. Defendant who is friend of of Shri Kedarlal Mangilal was permitted to keep a Pan-bidi Galla or Khumcha in front part of the shop. Deceased used to open the sop and defendant used to bring his Galla to be placed in front of the shop. In the evening the defendant used to FA/1867/1984 3/4 JUDGMENT take away his Pan-bidi Khumcha and deceased used to close his shop. The defendant was paying Rs.2/- per day as license fee. Even after the death of Shri Kedarlal Mangilal, the defendant used to take away keys in the morning and used to return the same in the evening after closing the shop. As there were old relations and friendship, the defendant was having this permission and facility and defendant used to pay the license fee. Somewhere in October, 1977, after the defendant took away the keys he did not return the same and nor did he pay the license fees. When the defendant was approached by the widow and her relatives, he gave evasive replies and thus the defendant took over the illegal possession of the entire shop. Because of the said reason, plaintiffs have filed present suit for the reliefs as stated above. 3. Heard the learned advocates for the respective parties. 4. The Trial Court has considered the evidence on record and discussed the matter at length. The Trial Court has appreciated the documents on record. The Trial Court has framed the issues below Exh.31 and has come to the conclusion that the the plaintiffs have claimed possession a well as mesne profits. She has claimed mesne profits at the rate of Rs.2/- per day, which is the license fee that was agreed. In all that is Rs.1,714/- till the date of suit. There is nothing in writing either in form or receipt FA/1867/1984 4/4 JUDGMENT or agreement to show that any amount was paid by the defendant to the plaintiff or to her husband Kedarlal. When the mesne profits are claimed only from 1/10/1979, there is no reason when the same should not be allowed when the defendant has failed to return the key and has tried to deny the title of his license and has tried to use the entire possession of the shop by paying only Rs.2/- per day. Two rupees per day was only a license fee being charges for placing the small Galla near the suit-shop whereas for the last three years, he is in possession of the entire premises. Hence, the plaintiffs are also entitled to the decree for Rs.1,714/- as claimed. 5. I am in complete agreement with the reasonings given and the findings arrived at by the Trial Court. No case is made out to interfere with the matter. 6. In the premises, First Appeal deserves to be dismissed. Hence, the same is dismissed. No order as to costs. (K.S.Jhaveri, J.) (ila)