IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 967 of 1979 For Approval and Signature: HON'BLE MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RAZIABENU KHURSIDBHAI Versus SHAIKH RAJABALI MOHMADALI -------------------------------------------------------------- Appearance: 1. First Appeal No. 967 of 1979 MR SURESH M SHAH for Petitioner No. 1 MR MEHUL S SHAH for Petitioner No. 1 MR MB GANDHI for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.C.PATEL Date of decision: 18/03/2004 ORAL JUDGEMENT This appeal by the original defendant under Section 96 of the Civil Procedure Code is directed against the judgement and decree dated 2.4.1979 passed by the learned Judge, City Civil Court No.3 in Civil Suit No.1071 of 1974, whereby the learned Judge decreed the said suit filed by the respondent and directed the appellant to hand over possession of the suit room to the respondent. 2. The suit property was a small room situated at Naroda Road in Kutbimazar Ward, Asarwa, Vohra's Roza. The case of the respondent/plaintiff was that one Rambharose was serving in the trust and he was given the suit room for his stay but no rent was charged from him. The plaintiff had filed one application bearing PSRP.No.8/70 in the Small Causes Court at Ahmedabad against the said Rambharose but he expired and the petition abated. The defendant Bai Raziabanu then gave notice to the plaintiff on 2.9.1971 and contended that she was a tenant and that she had been residing with Rambharose and that Rs.15/- as rent was deducted from the pay of Rambharose but he was not given any receipt. She had applied for fixation of standard rent (No.3251/71) which was pending. According to the plaintiff, the contents of the said notice given by the defendant were false and the reply was given on 5.10.1971. The plaintiff's case was that after the death of Rambharose, the defendant had committed trespass and occupied the room. The plaintiff had, therefore, filed an application being PSRP.No.34/74 in the Small Causes Court but as the defendant raised the contention that the Court had no jurisdiction, the application was withdrawn on 3.5.1974. Thereafter, the plaintiff filed the present suit in the City Civil Court on the ground that the defendant was a trespasser and prayed for a decree of eviction and mesne profits. 3. In her written statement, the defendant contended that she had been staying with Rambharose as a member of his family for a period of 10 years and had been looking after him and that Rambharose was a tenant of the room and, after his death, she had become the tenant. It was contended that PSRP Application No.8/70 which the applicant had filed against Rambharose had abated and thereafter, PSRP No.34/74, which had been filed against the defendant, had been withdrawn, the present suit was not maintainable. 4. The learned Judge raised the following issues for his decision:- 1. Is it proved that defendant is in unlawful occupation of room bearing survey No. 488-B-26, (Mun. Census No.1264-A-26) and is liable to be evicted? 2. Is it proved that Ram Bharose held the above room as a tenant of the plaintiff trust. If yes, is it also proved that the defendant resided in the said room with aforesaid Ram Bharose as a member of his family and acquired tenancy rights? 3. Is plaintiff entitled to mesne profits, if yes, at what rate and from what rate? 4. Is it proved that the suit is not maintainable either on the ground (1) PSRP.8/70 filed in Ahmedabad Small Causes Court against Ram Bharose abated or (2) P.S.R.P.34/71 filed against the present defendant was withdrawn by the plaintiff? 5. Is it proved that the plaintiff has no right to file the present suit through the power of attorney holder of the trustees of the plaintiff trust? 5. At the trial, on behalf of the plaintiff, 2 witnesses were examined, namely (1) Rajabali Mohmmedali, the power of attorney holder of the sole trustee of the trust and (2) Sahuhullah who used to write Accounts. The defendant herself gave evidence at Exh.44 and she examined 3 more witnesses, namely (1) Fakir Mohammed who claimed to be a tenant in the trust property. (2) Ahmedi who used to live on the otta outside the room and (3) Datadin who had worked as a gardener in the trust. 6. The learned Judge, after, recording the oral and documentary evidence, adduced by the parties, recorded the following findings on the issues:- 1. In the affirmative. 2. In the negative. 3. In the affirmative, at the rate of Rs.15/- per month for a period of three years from the date of the suit and at a rate to be determined under O.20 R.12 from the date of the suit. 4. The suit is maintainable. 5. In the negative. 7. Now the evidence of Rajabali & Sahuhullah who gave evidence on behalf of the plaintiff shows that Rambharose was an employee of the trust and was paid Rs.40/- per month. It is also not in dispute that he was given a room to stay. However, according to these 2 witnesses, no rent was charged from Rambharose and monthly wage bills produced by them shows that Rs.40/= was paid to Rambharose per month but no rent was deducted. It also appears that there was some dispute between the trust and the employees and several servants including Rambharose had been discharged and all of them had approached the Labour Court. Rambharose had also filed one application in the Labour Court. The common judgement pronounced by the Labour Court shows that all the applications were dismissed. It appears that Rambharose had been discharged from service in the year 1968 and he could not succeed in the Labour Court. Thereafter, he died. 8. The defendant in her oral evidence gave a version different from that given in her written statement. She said in her oral evidence that Rambharose had kept her in his room as a daughter. According to her, Rambharose was a friend of her father who was residing in the adjacent room. She was married in the year 1962 and she went to reside at Jamalpur with her husband. Since she was not feeling well, her father and Rambharose approached her and her husband and they were invited to reside with Rambharose. According to her, the rent was deducted from the salary of Rambharose but he was not given any receipt. She also stated that, after his death, she was paying the rent but she was not given receipt. Then, she said that her husband had divorced her and it was not possible for her to stay at her husband's place. The other 3 witnesses examined by her supported her case that she had been staying in Rambharose's room. 9. The learned Advocate for the appellant contended that the learned Judge had committed an error in holding that Rambharose was not a tenant. He contended that the suit was not maintainable since the plaintiff had earlier filed PSRP Application against the defendant and had withdrawn the same. He submitted that it was not in dispute that Rambharose had been staying in the room. The evidence shows that the defendant had also been staying with Rambharose and, hence, whatever may be the capacity in which Rambharose was staying in the room, it could not be said that the defendant was a trespasser. The learned Advocate for the appellant has taken me through the judgement and the evidence on record. The learned Judge has carefully discussed the evidence on record in Paras 11 to 14 of the judgment and has come to the conclusion that, though Rambharose was employed in the trust, he was not the tenant of the room. I agree with the evaluation of the evidence made by the learned Judge and see no reason to take a different view. There is no substance in the defendant's contention that Rambharose was a tenant of the suit room. 10. Apart from that, Rambharose was a Hindu and the defendant Raziabanu is a Muslim. In the circumstances, the contention that the defendant had been staying with Rambharose as a member of his family is absurd and cannot be believed. Whatever may be the capacity in which Rambharose was living in the room, the defendant had no right to live in the said room after the death of Rambharose and she was obviously a trespasser. It is true that the plaintiff had filed a PSRP Application under Section 41 of the Presidency Small Causes Court Act against the defendant but had withdrawn the same when the defendant contended that she was a tenant and not a trespasser. However, proceedings under Section 41 of the Act are summary in nature and the present suit is based on title and it cannot be said that it was not maintainable merely because the application under Section 41 was withdrawn. In my view, the learned Judge rightly came to the conclusion that Rambharose was not the tenant, that the defendant was a trespasser and that the suit was maintainable. There is no substance in the appeal. The appeal therefore, fails and is dismissed. No order as to costs. 11. The learned Advocate for the appellant submitted that the appellant may be given time to vacate. The appellant has occupied the suit house as a trespasser for all these years. Prayer for time to vacate the suit room is refused. (M.C.Patel, J) jitu