IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL No 123 of 2002
WITH
CIVIL APPLICATION No.6057 of 2002
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HEIR OF NATHUBHAI MULUBHAI KESHOR Versus
RATANBEN CHHOTALAL MODH D/O BHANJIBHAI VAKABHAI
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Appearance:
1. Second Appeal No. 123 of 2002
MR NIRAV C THAKKAR for Appellant No. 1
MR HASIT H JOSHI for Respondent No. 1
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CORAM : MR.JUSTICE D.A.MEHTA
Date of Order: 02/05/2003
COMMON ORDER
1.This appeal has been filed against the judgement
and order dated 08.07.2002 in Civil Regular Appeal No.26
of 2002 by the Court of Assistant Judge, Jamnagar,
whereby the judgment and decree passed in Regular Civil
Suit No.233 of 1998 by the Court of 5th Joint Civil Judge
(S.D.), Jamnagar on 26.03.2002 came to be confirmed. The
appellant herein is the original defendant in the suit
while the respondent herein is the original plaintiff in
the suit. The parties shall henceforth, for the sake of
convenience, be referred to as the plaintiff and the
defendant.
2.The plaintiff filed a suit seeking declaration
and injunction to the effect that as the suit property
was not rented to the defendant and the defendant had
carried out illegal construction thereon the defendant
must be directed not to enter and use the property and
remove the illegal construction. The trial Court decreed
the suit declaring that the portion adjoining the rented
premises is of sole ownership of the plaintiff and does
not form part of rented premises; that the defendant
should pull down the walls, room and bathroom constructed
on the terrace portion and make the terrace open at the
cost to be borne by the defendant. This judgement and
order have been confirmed by the appellate Court.
3.Mr.Nirav C. Thakkar, the learned advocate
appearing on behalf of the appellant – defendant,
submitted that both the lower Courts had failed to
appreciate and deal with the aspect that the trial Court
could not have exercised the jurisdiction and entertained
the suit, and the jurisdiction to adjudicate the dispute
between the parties lay with the rent Court. In the
alternative, it was submitted that the suit had been
decreed without providing full and proper opportunity to
the defendant with special reference to the fact that the
defendant had not been provided adequate opportunity to
cross-examine the witnesses who had deposed as witnesses
of the plaintiff. On merits, it was submitted that both
the lower Courts failed to appreciate that the defendant
was in possession of the suit premises right since
inception, by virtue of rent note executed between the
predecessor-in-title of the plaintiff and
predecessor-in-title of the defendant, and the defendant
had not carried out any illegal construction. That the
premises were in the same position as they had been
originally rented by the defendant and hence, the prayer
to remove illegal construction, vacate the terrace
portion was not supported by facts and evidence on
record. It was submitted by Mr.Thakkar, therefore, that
substantial question of law arose out of the impugned
judgement dated 08.07.2002.
4.As against this, Mr.Hasit H. Joshi, the learned
advocate appearing on behalf of the plaintiff, submitted
that the orders of both the lower Courts were in
accordance with law, based on facts and evidence on
record and deserve no interference.
5.The contention regarding jurisdiction has
admittedly been raised for the first time before the
appellate Court in the memorandum of appeal and written
submissions. The grievance of the defendant to the
effect that the said contention has not been dealt with
is misconceived. It is an admitted position between the
parties that there is no dispute as regards the rented
premises, the dispute is in relation to portion adjoining
the rented premises, i.e. as to whether the said portion
was rented to the defendant, or whether the defendant was
permitted user of the said premises, and whether there
was an illegal construction upon such adjoining premises.
Therefore, it cannot be stated that the appellate Court
committed any error when it did not deal with the issue
for the first time before it only in memorandum of appeal
and written submissions. Furthermore, no reason is shown
as to why the said ground / defence was not taken before
the Trial Court.
6.In relation to the contention regarding
opportunity, the same has been succinctly dealt with by
the appellate Court in paragraph 9 of the impugned
judgment and bears no repetition. Suffice it to state
that the appellate Court has considered the submissions
of the defendant in light of the record and proceedings
of the trial Court and thereafter recorded its finding
that the defendant had been granted adequate opportunity
and no case was made out for reminding the matter to the
trial Court.
7.The rent note which is available at Exh.22 in no
uncertain terms records that only the room which has to
be used as shop has been rented out and the portion above
the room i.e. the terrace portion shall be of exclusive
possession and ownership of the predecessor-in-title of
the plaintiff. Similarly, there is a positive
acknowledgment in the rent note by the
predecessor-in-title of the defendant that the door which
opens in the terrace shall be kept in lock and key by the
predecessor-in-title of the plaintiff. Therefore, as per
the evidence which has come on record it stands
established that the terrace over the shop premises did
not form part of the rented premise, and on this count,
no error can be said to have been committed by either of
the lower Court.
8.As regards illegal construction, a show-cause
notice dated 06.12.1997 issued by the Jamnagar Municipal
Corporation directing the plaintiff as the owner and the
defendant as the occupier to remove illegal construction
is absolutely clear and shows that no construction
existed prior in point of time as canvassed by the
defendant. Thus, the appellate Court and the trial Court
have appreciated the evidence and facts on record and
there is no infirmity in their approach which would
permit this Court to entertain this second appeal.
9.The position of law is well settled that if in
light of evidence which has come on record and the
findings of fact recorded by the Court below, even though
the High Court may be in a position to take another view
in the same set of facts and circumstances, that would
not be sufficient for interfering with concurrent
findings of fact so as to entertain the Second Appeal.
It is also well settled that, assuming a question of law
arises, merely because a question of law arises, that by
itself would not be sufficient, as what is necessary is
that there should be a substantial question of law which
should arise from the judgment so as to require admission
of Second Appeal under Section 100 of the Code of Civil
Procedure. It is well settled position of law that it is
not open to this Court to go behind findings of fact
recorded by the First Appellate Court unless and until it
is shown that the Appellate Court has either taken into
consideration irrelevant evidence, or ignored relevant
evidence. In the present case no such situation exists.
Having considered the various contentions raised and the
decisions cited it is apparent that, even if it could be
stated for the sake of argument, that a question of law
would arise on any of the points canvassed by the learned
Advocate, that by itself is not sufficient to permit this
Court to exercise its jurisdiction in relation to Second
Appeal. Merely because a question of law can be said to
arise it would not be sufficient as what is necessary is
that a substantial question of law should arise out of
the impugned judgment. In light of the settled legal
position stated hereinbefore no substantial question of
law can be said to arise out of the impugned judgment,
more so in light of the fact that there are concurrent
findings of fact recorded by both the Courts below after
appreciation of evidence on record.
10.This second appeal, therefore, being devoid of
merits is liable to be dismissed at the admission stage.
Dismissed accordingly.
CIVIL APPLICATION No.6057 of 2002
1.In light of the order passed in Second Appeal
No.123 of 2002, this application has become infructuous
and does not survive, and hence, the same is disposed off
accordingly. Ad-interim relief granted earlier stands
vacated.
2.At this stage a request is made by Mr.Thakkar on
behalf of the appellant that the appellant – defendant be
permitted to occupy the premises and status-quo may be
maintained for a period of three months from today, since
there is vacation in the Supreme Court.
3.This request does not require to be granted for
the simple reason that on 18.07.1998 an order below Exh.5
in Regular Civil Suit No.233 of 1998 came to be made
which reads as under:-
” ORDER
Application of plaintiffs is hereby
allowed.
Defendant is hereby directed not to use
portion of terrace etc. and also directed to
pull down wall and bathroom and make terrace open
within one month from this order.
Defendant is hereby ordered to pay costs
of this application to the plffs.
Pronounced today in open court on this
18th July, 98.
dt.18.7.98.
(V. M. NAYAK)
4th Jt. Civil Judge, SD,
Jamnagar.”
4.Therefore, when there was a prima face case and
the balance of convenience did not operate in favour of
the defendant even at the initial stage it is not
possible to continue the ad-interim relief granted when
notice was issued in the present appeal and, therefore,
the prayer made by Mr.Thakkar is rejected.
Sd/-
[ D.A.MEHTA, J ]
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‘Bhavesh’