SCA/3072820/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 30728 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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? ========================================================= ASHOKKUMAR VISHNUPRASAD SHARMA - Petitioner(s) Versus SAMSUDDIN IBRAHIMBHAI - Respondent(s) ========================================================= Appearance : MR MAYUR RAJGURU for Petitioner(s) : 1, MR DILIP K ANOJIYA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/07/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India the petitioner has prayed for an appropriate Writ, direction and/or order to quash and set aside order below Exh.23 dated 01.11.2007 in Civil Appeal No.62 of 2003 in Kirkul SCA/3072820/2007 2/7 JUDGMENT Application No.512 of 2001 in Objection Application in Darkhast No.142 of 2001 and also to quash and set aside Execution Petition No.142 of 2001 in HRP Suit No.2502 of 1991. It is further prayed to restore the possession of tenanted suit premises in favour of the petitioner as the petitioner is in possession as on the day. 2. Facts leading to the present Special Civil Application in nutshell as under : The respondent is original plaintiff – landlord and the judgment creditor. The petitioner is third party objector. That one Ramjas Murlidhar was original tenant against whom respondent herein – original plaintiff instituted suit being HRP suit No.2502 of 1991 for getting disputed possession. That in the said Suit, original defendant filed written statement inter-ali stating that he does not indent to transfer the suit premises to anybody. That suit was decreed on 06.04.1999. That the respondent – judgment creditor filed Execution Petition No.142 of 2001 for execution of decree passed in HRP No.2502 of 1991 and at the time of execution the petitioner submitted objections. It was contended on behalf of the petitioner that the petitioner is in occupation and in possession of disputed property with knowledge of judgment creditor since 1997 and as the petitioner was not party to the said suit i.e. HRP No.2502 of 1991, said decree is not binding upon him. That the learned Executing Court on appreciation of evidence SCA/3072820/2007 3/7 JUDGMENT and considering objections submitted by the petitioner held that the petitioner has failed to prove any evidence that he was in possession of disputed property as tenant with knowledge of judgment creditor. So far as reliance placed upon documentary evidence by the petitioner with respect to electricity connection in his name and licence obtained by him under the provisions of Bombay Shops and Establishment Act is concerned, the learned Executing Court held that said applications were submitted without signature of original landlord – judgment creditor and therefore, judgment creditor was not aware about electricity connection and licence obtained by the petitioner under the Bombay Shops and Establishment Act. Therefore, vide order dated 27.02.2003 learned Executing Court directed to proceed further with the Execution Petition No.142 of 2001 against the petitioner also by holding that he is also bound by the decree. That being aggrieved and dissatisfied with the order passed by the learned Executing Court dated 27.02.2003 passed in Objection Application No.512 of 2001 the petitioner preferred Civil Appeal No.62 of 2003 before the learned Appellate Bench of Small Causes Court, Ahmedabad. The learned Appellate Bench of Small Causes Court, Ahmedabad by impugned order dated 01.11.2007 dismissed the appeal confirming the order passed by the learned Small Causes Court No.4, Ahmedabad. Being aggrieved and dissatisfied with the both the aforesaid orders, the petitioner – third party has preferred present Special Civil Application under SCA/3072820/2007 4/7 JUDGMENT Article 227 of the Constitution of India. 3. Mr.Mayur Rajguru, learned Advocate appearing on behalf of the petitioner has vehemently submitted that both the Courts below have materially erred in not accepting the objections submitted by the petitioner – third party. It is submitted that the petitioner was infact in possession of the property on 06.10.1997 inducted by the erstwhile occupier and tenant with the consent of the respondent landlord and since then the petitioner was in possession of the occupation of the suit premises and carrying out the business of petroleum products, both the Courts below ought to have allowed the objection application submitted by the petitioner and ought to have held that decree is not binding to the petitioner and consequently ought not to have proceeded further with the Execution Petition. It is submitted that the petitioner had obtained licence from the competent authority and also got proprietor firm registered and also obtained license under the provisions of the Bombay Shops and Establishment Act. Therefore, impugned order passed by both the Courts below deserve to be quashed and set aside. It is further submitted that the learned Small Causes Court, Ahmedabad has failed to appreciate and evaluate the evidence adduced by the petitioner alongwith an application for objection in the Execution Petition. It is further submitted that even when decree was passed the petitioner was in possession of suit premises, therefore, any decree passed in the suit is SCA/3072820/2007 5/7 JUDGMENT not binding to the petitioner. Therefore, it is requested to allow present Special Civil Application. 4. The petition is opposed by Mr.Dilip Kanojia, learned Advocate appearing for the respondent – landlord – judgment creditor. It is submitted that there are concurrent findings by both the Courts below on appreciation of evidence which do not call for interference of this Court in exercise of powers under Article 227 of the Constitution of India. It is submitted that admittedly the suit was filed against tenant – Ramjas Murlidhar and even as per the petitioner he was in possession since 1997 who has taken possession from said tenant and therefore, when it is the case on behalf of the petitioner that he is in possession, after filing of the suit decree passed in the said suit is binding to the petitioner. It is submitted that on appreciation of evidence, both the Courts below have concurrently found that the petitioner has miserably failed to prove and/or lead evidence that he is in possession with the knowledge and with consent of the judgment creditor. It is further submitted that even documents relied upon by the petitioner has been dealt with and considered by both the Courts below. Therefore, it is requested to dismiss present Special Civil Application. 5. Having heard the learned Advocates appearing on behalf of the respective parties and at the outset it is required to be noted that decree has been passed in favour of respondent – landlord – judgment SCA/3072820/2007 6/7 JUDGMENT creditor. Thus, Suit has been filed in the year 1991. Admittedly, it is the case on behalf of the petitioner that he is in occupation of the suit premises since 1997, therefore, the petitioner is in possession of suit premises after filing of the suit. It is the case on behalf of the petitioner that he was inducted as a tenant by the original tenant and same was with the knowledge and consent of the judgment creditor. Both the Courts below have concurrently found on appreciation of evidence that the petitioner has failed to prove that he was inducted as tenant by the original tenant with the knowledge and consent of original tenant. Both the Courts below also took note of the fact that Suit was filed in the year 1991 against original tenant and written statement was filed by the original tenant that he is not going to transfer and/or alienate the premises in question. Still possession has been handed over to the petitioner illegally. It is also required to be noted that during HRP Suit No.2502 of 1991 original tenant did not disclose before the learned trial Court that some another person i.e. the petitioner is in possession of tenanted premises. Therefore, when the petitioner was inducted as tenant by the original tenant during and pendency of the suit and decree has been passed against the original tenant, said decree is binding to the petitioner. Both the Courts below have also considered documentary evidences relied upon by the petitioner such as electricity connection in the name of the petitioner; licence issued by the authority under the SCA/3072820/2007 7/7 JUDGMENT provisions of the Bombay Shops and Establishment Act and on appreciation of evidence both the Courts below have observed and held that electricity connection as well as licence have been obtained by the petitioner without signature of original landlord. Therefore, merely because the petitioner has obtained electricity connection and/or licence under the provisions of the Bombay Shops and Establishment Act, it cannot be said that the petitioner has been handed over the possession with the consent of the landlord. Decree has been passed which was sought to be executed and from the prayer it appear that possession is already taken over from the petitioner and therefore, the petitioner has prayed to restore possession back to him. Considering overall facts and circumstances, it cannot be said that both the Courts below have committed any error in directing to proceed further with the Execution Petition against the petitioner also and by holding that decree passed in HRP Suit No.2502 of 1991 is also binding to the petitioner. No illegality has been committed by both the Courts below which calls for interference of this Court in exercise of powers under Article 227 of the Constitution of India. 7. In view of above and for the reasons stated above, the petition deserves to be dismissed and accordingly it is dismissed. Notice discharged. [M.R.Shah,J.] satish