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CRA/1318/1999 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 1318 of 1999
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 ?
=========================================================
KANAIYALAL
MADHARAJ SINDHI (DECEASED) & 1 - Applicant(s)
Versus
PARSHABEN
PUNJALAL KHATRI - Opponent(s)
=========================================================
Appearance
:
MR
MTM HAKIM for
Applicant(s) : 1 - 2, 2.2.1, 2.2.2, 2.2.3,2.2.4
None for
Opponent(s) : 1,
MR NK MAJMUDAR for Opponent(s) : 1.2.1,
1.2.2,1.2.3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 06/05/2011
ORAL
JUDGMENT
1. By
way of this appeal the applicants have challenged the Judgment and
decree dated 06.08.1999, passed by the learned Fourth Extra Assistant
Judge, Baroda, in Regular Civil Appeal NO. 95 of 1996, whereby the
learned Judge has dismissed the appeal and confirmed the order of the
Trial court.
2. The
short facts of this case are that original plaintiffs owns property
No. 1357/1 situated at Khatrivad, Fatehpura, Baroda. The said
premises was let out to the original defendants at a monthly rent of
Rs. 12/- per month since 1.1.1960. On 23.1.1974, the plaintiffs
served Notice to the defendants, seeking possession of the said suit
premises. Thereafter, Rent Suit No. 1217 of 1975 filed by the
plaintiffs for possession on the ground that the defendants had
acquired suitable accommodation. The said suit came to be dismissed
by the judgment and order dated 29.6.1978. Against said judgment and
order the plaintiffs preferred Civil application No. 218 of 1978,
which also came to be dismissed. Thereafter, the plaintiffs preferred
Civil Revision Application No. 806 of 1990, before this Court, which
came to be allowed and this Court has remanded the said matter for a
fresh trial only on the issue of alternative suitable accommodation.
2.1. Thereafter,
the said suit again came to be tried by the Trial court, Small Causes
Court, Baroda. On 16.7.1996, the learned Judge after hearing the
parties has passed the decree of eviction. Being aggrieved with the
said judgment and decree dated 16.7.1996, the plaintiffs preferred
Regular Civil Appeal No. 95 of 1996. Vide order dated 06.08.1999, the
said appeal also came to be rejected. Hence, this petition.
3. Heard
learned Advocates for both the parties.
4. Mr.
H.T.M. Hakim, learned Advocate for the applicant has contested only
on the point that the both Courts below have failed to appreciate
that the applicants formerly original defendant No. 1/1 and 1/2 have
not acquired suitable accommodation. The allotment which was alleged
was not on record to show that the possession was taken and whether
the suitable accommodation which was acquired was suitable or not
was also not considered. He also contended that the Trial court has
committed an error in granting Eviction decree.
5. Learned
Advocate for the respondents supported the order of the Courts below
and contended that the Trial Court while deciding the suit has framed
following issues.
“1. whether the
plaintiff bonafide and reasonable requires the possession of the suit
premises for his own personal use and occupation ?
2. If so, to whom the
greater hardship would be caused to the defendant by passing a decree
for eviction or to the plaintiff by refusing to pass it ?
3. Whether the
defendant after coming in to force of the Bombay Rent Act, built or
acquired vacant possession of or has been alloted a suitable
resident ?
4. What was the
principal purpose of letting ?
5. Whether the
defendant has unlawfully sublet the suit premises or has assigned or
transferred his interest therein to defendant NO.2 ?
6. Whether defendant
No.2 has changed the user ?
7. Whether the
defendants have committed breach of the terms of the tenancy ?
8. Whether the notice
is legal and valid ?
8.A. What should be the
standard rent of the suit premises ?
9. Whether the
plaintiff is entitled to recover possession of the suit premises ?
10. What order and
decree.”
6. After
considering the issues between the parties and after remand from this
Court, the Court below has reconsidered the evidence and in paragraph
Nos. 11 and 12 has observed as under:-
“11. Now, at this
stage the question arise that whether the defendant No.2/1 to 2/4 who
are the heirs of the deceased defendant No.2 are in possession of the
suit premises and are liable to be evicted from the suit premises ?
Now, let see the evidence of the plaintiff in this respect, it is an
admitted fact that the deceased Megharaj Keshumal the father of the
defendants-original tenant of the suit premises and after his death
both the defendants have got tenancy right U/d 5(11)(C) of the Bombay
Rent act. Under these circumstances, I can say that if the defendant
No.1 has acquired the suitable alternative accommodation in Savad
colony even though the defendant No.2 cannot be liable to evict from
the suit premises on this ground as they become the tenant by virtue
of Sec. 5(11)(C) of the Bombay Rent Act.
12. Now, I would like
to discuss about the acquisition of the premises by the defendant No.
2/1 Mayaben in Gokulnagar, Gotri, Vadodara. In this case the
defendant No.2/1 Mayaben has specifically admitted in her deposition
that block No. 806 in Gokulnagar was allotted to her by Gujarat
Housing Board in the month of April, 1990. The allotment letter is
produced at Exh.116 on record. It further reveals from the deposition
of the plaintiff witness No.3 Lakshmanbhai who is serving in Gujarat
Housing Board as a Rent Collector that this block is consisted of one
room, kitchen, bath-room, latrin and with the facility of water,
drainage and electricity. In view of this fact, I can safely say that
the plaintiff has proved that the defendant No.2/1 Mayaben has
acquired alternative accommodation in Gokulnagar, in the locality of
Gotri Vadodara. Now, let us see the further evidence of the defendant
No.2 in this respect the defendant No.2/1 Mayaben has also
specifically admitted in her deposition that she has disposed of the
said block of Gokulnagar and now, she is not the possession of the
said block. She has further stated that after the death of her
husband, she is unable to pay the installment of the said block to
Gujarat Housing Board and therefore, she has disposed of the said
block. In view of this fact, I come to conclusion that the defendant
No. 2/1 tenant Mayaben has acquired alternative accommodation in
Gokulnagar, Gorti. As I have discussed earlier that it is well
established position of law that once the plaintiff has proved that
the defendant-tenant has acquired alternative suitable accommodation
then the burden lies on the tenant to prove that it is not suitable
accommodation. In the present case, It is an admitted fact that the
defendant No.2/1 Mayaben has acquired alternative suitable
accommodation in Gotri and it is proved by the plaintiff. But in this
case the defendant No.2/1 has not lead any sufficient evidence to
show that the premises of Gokulnagar was not sufficient for herself
and her family members and she has not produced any documentary
evidence in support thereof. Under these circumstances, I can safely
say that the defendant No.2/1 has acquired alternative suitable
accommodation.”
7. It
appears from the record that the Trial Court has specifically found
that defendant No.2/1- Mayaben, has also acquired the premises, in
view of the family requirement, the landlord has clearly established
that the defendant No.2/1 has also acquired suitable accommodation.
8.
In view of the concurrent findings and limited jurisdiction, I am in
complete agreement with the findings arrived at and conclusion
reached by the Courts below. No substantial question of law involved
in this application. Therefore this application deserves to be
dismissed. Hence, the same is dismissed.
(K.S.JHAVERI,J.)
pawan
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