Ansuyaben Thaker and Others vs Kumbhar Kanjibhai Mavjibhai and Another

K.A. Puj, J.—The appellant original plaintiff has filed this Second Appeal u/s 100 of the CPC challenging the judgment and order passed by the learned Assistant Judge, Surendranagar in Regular Civil Appeal No. 19 of 1981 setting aside the judgment and decree passed by the learned Joint Civil Judge (S.D.), Surendranagar in Regular Civil Suit No. 174 of 1979 and dismissing the said suit for possession on the ground of determination of license and tress-pass.

This Second Appeal was admitted by the Court and following substantial questions of law were formulated for the determination and consideration of this Court:

Whether the lower Appellate Court has committed an error of law in holding that the relationship between the plaintiff and the defendant was not one of Licensor or Licencee ?

Whether in the facts and circumstances of the case and relevant evidence on record, the Lower Appellate Court has committed an error of law in assuming throughout that the allotment of the suit premises in the plaintiff''s favour was cancelled, and that he had no locus standi to file the suit ?

Whether the Lower Appellate Court has committed an error of law in proceeding on the basis that the exclusive possession was the only test of determining whether the defendant was a tenant and not a licensee ?

It is the case of the appellant original plaintiff that the plaintiff has instituted Regular Civil Suit No. 174 of 1979, inter alia, stating therein that the suit Block No. 67, Jaihind Housing Colony, Surendranagar was allotted to the appellant plaintiff by the Housing Board, Ahmedabad and as such, he was the owner and occupant of the said Block. The father of the defendant was residing in the block adjoining of the plaintiff and along with him, the defendant was residing. Before 5 to 6 years from the date of filing of the suit, the marriage of the brother of the defendant was to take place and so, for temporary use, the defendant was given Block No. 67 by the plaintiff for accommodating the guest. The appellant plaintiff had temporarily gone to reside at Vadhvan and thereafter when the possession was asked for, the defendant did not hand over the possession of the house on one or other pretext and hence, the appellant plaintiff has filed the suit. After issuance of the notice, the defendant had filed written statement at Exh.15, inter alia, contending therein that the averments made in the suit are not true and correct as the plaintiff was not the owner nor the occupant of the suit premises. The defendant was paying the rent to the Rent Collector and all taxes etc. were also paid by the defendant. The learned Trial Judge, after raising certain issues at Exh.50 and on appreciation of evidence adduced by both the parties adjudicated that the appellant plaintiff is the owner of the suit Block and hence, the defendant was directed to hand over the possession to the appellant plaintiff.

Being aggrieved by the said judgment and decree passed by the Trial Court, the respondent has filed Regular Civil Appeal before the Appellate Court and the Appellate Court after considering the documents on record and pleadings of the parties have held that the plaintiff had come in the Court of law on the basis that the relationship between the plaintiff and the defendant is that of licensor and licensee. However, it is not proved and, therefore, the plaintiff''s suit on the pleadings stated by him deserves to be dismissed. The Appellate Court has further observed that the Trial Court has relied on Exh.52 a certificate issued in favour of the plaintiff and decreed the suit of the plaintiff as the defendant has not produced the documentary evidence. The Appellate Court has, however, minutely examined the evidence of Vasantbhai on which it appears that though the Block was originally allotted to the plaintiff, however, no allotment letter is produced on record. The certificate is also not signed by the Manager. On his behalf, somebody else has signed. The Appellate Court has further observed that the theory of giving suit premises for temporary occupation to the defendant for 15 days was also not believed by the Appellate Court. Considering the entire evidence on record, the Appellate Court has come to the conclusion that the plaintiff has not proved his case in the suit and hence, the suit is liable to be dismissed.

It is this order of the Appellate Court which is under challenge in the present Second Appeal.

Before this Court, Mr. Deep Vyas has relied on the certificate issued by the Manager of the Housing Board. He has submitted that this certificate specifically refers to the allotment of Block made in favour of the plaintiff. He has further submitted that the plaintiff''s allotment was not cancelled at any point of time and hence, the said Block cannot be allotted to the defendant. Simply because of the fact that for temporary period, the Block was given to the defendant, the defendant could not be believed to have any right in the Block. He has, therefore, submitted that the certificate issued by the Housing Board as well as the evidence of Mr. Vasantbhai conclusively proved that the Block was allotted to the plaintiff and hence, the Trial Court was justified in passing the decree in favour of the plaintiff. He has, therefore, submitted that that the order passed by the Appellate Court deserves to be quashed and set aside and this Second Appeal deserves to be allowed.

Mr. Dipak Thakkar, learned advocate appearing for the respondent, on the other hand, has supported the order passed by the Appellate Court. He has submitted that the certificate on which heavy reliance is placed by the plaintiff itself is not proved in the Court of law. It is not known as to who has signed the said certificate nor the author of the certificate had appeared in the witness box and proved the said certificate. He has further submitted that the evidence of Mr. Vasantbhai Exh.52 makes it clear that the Housing Board has already decided to allot the Block to the defendant and to that effect, the defendant was also informed way back in 1975. The defendant''s possession from 1969 is proved and admittedly, the suit is filed in 1979. It is a matter of fact that the plaintiff has no right whatsoever nor he has any locus to file the suit as he is neither the owner nor he was in possession at the time of filing of the suit. If at all, the Housing Board is aggrieved, the Housing Board could have filed the suit and not the plaintiff and he has, therefore, submitted that there is no material on record to prove either the ownership or occupation of the plaintiff and hence, this Second Appeal deserves to be dismissed.

Having heard learned advocates appearing for the parties and having gone through the impugned orders passed by the Appellate Court as well as the Trial Court as well as the documentary evidence produced on record, the Court is of the view that the Appellate Court has decided the controversy between the parties after considering the entire facts and circumstances as well as the evidence on record and it is rightly observed by the Appellate Court that the relationship between the plaintiff and the defendant as licensor and licensee is not proved. The very fact that the decision was taken to allot the Block in favour of the defendant itself shows that the allotment, if any, in favour of the plaintiff stood cancelled. Once it is accepted to be cancelled, the plaintiff has no right to file the suit against the defendant. The Appellate Court has also justified in observing that since the possession of the suit premises was with the defendant since 1969, it was a conclusive proof to take the decision as to whether the defendant was a tenant and not a licensee.

In the above view of the matter and considering the reasoning given by the Appellate Court, more particularly, examining the evidentiary value of the two documents, namely, certificate issued by the Housing Board as well as the evidence of Mr. Vasantbhai, the Court does not find any infirmity in the view taken by the Appellate Court and hence, the order passed by the learned Appellate Judge is hereby confirmed and the present appeal filed there against is dismissed without any order as to costs.