Bipinbhai Manmohandas Shah vs Samirbhai Jitendrabhai Patel

A.J.Desai, J

By way of the present appeal filed under Section 96 of the Code of Civil Procedure, 1908, the appellant - original defendant No.2 - Bipinbhai Manmohandas Shah has challenged the judgment and decree dated 3.11.2018 passed by the learned 8th Additional Senior Civil Judge, Vadodara (hereinafter referred to as 'the learned Trial Court') in Special Civil Suit No.838 of 2011 by which the learned Trial Court has decreed the suit in part and has directed the present appellant to hand over vacant and physical possession of the first floor consisting of 3 rooms and kitchen of House No.24 situated in Nirman Society, Rustam Patel Marg, Alkapuri, Vadodara (hereinafter referred to as 'the property in question') to the present respondent Nos.1 to 9 - original plaintiffs. The learned Trial Court further directed the appellant to pay an amount of Rs.2,50,000/- to the respondent Nos.1 to 9 towards damages.

The respondent Nos.1 to 9 had filed Caveat and have been represented through learned advocate Mr. N. K. Majmudar. On 19.12.2018, the coordinate Bench of this Court extended the stay granted by the learned Trial Court against operation, implementation and execution of the impugned judgment and decree. Thereafter, the appeal was listed number of times and on 19.11.2019, this Court called for the records and proceedings of Special Civil Suit No.838 of 2011 from the learned Trial Court. Accordingly, the Records and Proceedings of the Special Civil Suit was received by the registry of this Court and hence, the present appeal is decided at the admission stage after hearing the learned advocates appearing for the respective parties as well as after going through the Records and Proceedings.

The short facts of the case are as under :-

3.1 That Dahyabhai Chhotalal Patel, the predecessor of the respondent Nos.1 to 8 - original plaintiffs No.1 to 8 became member of Government Servants (1957) Cooperative Housing Society Limited, Vadodara on 25.9.1960. Subsequent to his death, name of Pravinchandra Dahyabhai Patel was recorded about the change of the shareholder with regard to the property of the said Society (Exh.39). The legal heirs of Dahyabhai C. Patel had entered into a Banakhat on 21.7.1996 for sale of the property in question with one Arvindbhai Morarbhai Pandya - respondent No.10 herein - original defendant No.1 for a consideration of Rs.23 Lacs and the respondent No.10 had paid in all Rs.10 Lacs to the respondent Nos.1 to 8. The terms and conditions were also recorded in the said agreement and details of the property in question was also described. The said document was produced at Exh.35. It was also clarified in the said agreement that the conveyance shall be executed subject to permission granted by the State Government for transfer of the property in question since the same was situated in Government Society. Since the respondent No.9 - Arvindbhai Pandya was not a Government servant, necessary permission to transfer the property in question could not be obtained and hence, the said Banakhat was agreed to be cancelled. Thereafter, the original plaintiffs No.1 to 8 decided to sell the property in question to respondent No.9 herein - Dr. G. B. Rathod - original plaintiff No.9 and the said respondent No.9 also paid an amount of Rs.10 Lacs to respondent No.10 - Arvindbhai Pandya which was required to be paid by the respondent Nos.1 to 8 herein. Thereafter, permission was granted by the State Government on 31.3.2016 to sell the property in question and accordingly, the respondent Nos.1 to 8 executed Sale Deed dated 9.5.2016 in favour of respondent No.9.

3.2 Since most of the owners are residing out of country, they were not aware that the possession of the first floor of the property in question consisting of 3 rooms, kitchen etc. was alleged to have been handed over to the present appellant - Bipinbhai Shah by Arvindbhai Pandya. The present appellant when found that he may lose his possession over the property in question, he filed Rent Suit No.185 of 2001 (renumbered as Rent Suit No.100 of 2016) in the Small Causes Court, Vadodara and prayed that he may not be dispossessed from the property in question without due process of law since he is a tenant of the property in question. Interim relief in favour of the appellant was also granted in the said suit.

3.3 The respondent Nos.1 to 8 herein thereafter filed Special Civil Suit No.838 of 2011 seeking possession of the property in question and in the said suit, respondent No.9 - Dr. B. G. Rathod was also joined as one of the plaintiffs since he had purchased the property in question. The said suit was filed against Arvindbhai Pandya as well as appellant herein for possession of the property in question as well as for damages on the allegation that due to illegal possession of the property in question, the original plaintiffs suffered monetary loss towards rent etc. It was contended by the original plaintiffs that the present appellant is a tress-passer and the plaintiffs had never executed conveyance and/or sold the property in question to Arvindbhai Pandya nor given any authority to him to handover the keys of the property in question to the present appellant.

3.4 The appellant herein has filed his written statement at Exh.15 denying the claim made by the original plaintiffs - respondent Nos.1 to 9 herein. It was contended that the appellant is a legal tenant of the property and the possession of the property in question was handed over to him in view of the financial transactions between him and Arvindbhai Pandya and the amount was adjusted towards the rent. Both the parties produced documents as well as examined witnesses in support of their case. The learned Trial Court framed issues at Exh.22.

3.5 The learned Trial Court proceeded with Rent Suit No.100 of 2016 (Old Number as Rent Suit No.185 of 2001) filed by the appellant herein as well as Special Civil Suit No.838 of 2011 filed by the respondent Nos.1 to 9 herein simultaneously. The learned Trial Court vide judgment and decree dated 3.11.2018 dismissed Rent Suit No.100 of 2016 (Old Number as Rent Suit No.185 of 2001) filed by the appellant herein.

3.6 It is pertinent to note that being aggrieved by the judgment and decree dated 3.11.2018 passed in Rent Suit No.100 of 2016 (Old Number as Rent Suit No.185 of 2001), the appellant herein preferred Regular Civil Appeal No.358 of 2018 before the Court of learned Additional District Judge, Vadodara. By the judgment and order dated 8.3.2019, the said appeal came to be dismissed by the learned 5th Additional District Judge, Vadodara. Being further aggrieved with the said orders, the appellant preferred Second Appeal No.243 of 2019 under Section 100 of the Code before this Court and the coordinate Bench of this Court after hearing both the parties dismissed the said Second Appeal by oral order dated 14.10.2019. Hence, the contention raised by the appellant in both the suits that he is a legal tenant of the property in question is finally decided against the appellant.

3.7 As stated herein above, by the impugned judgment and decree dated 3.11.2018, the learned Trial Court has decreed Special Civil Suit No.838 of 2011 in part and has directed the present appellant to hand over physical possession of the property in question to the present respondent Nos.1 to 9 - original plaintiffs. The learned Trial Court further directed the appellant to pay an amount of Rs.2,50,000/- towards damages.

3.8 Hence the present appeal.

Mr. Hardik Karathiya, learned advocate appearing for learned advocate Mr. S.P. Majmudar for the appellant has vehemently submitted that the learned Trial Court has failed to appreciate the evidence of the witnesses examined by the plaintiffs as well as by the defendants. He would submit that it is not in dispute that the appellant is in possession of the property in question since number of years and he used to pay property tax of the property in question. In support of his submission, he has relied upon the documents produced at Exh.75 and 77 to 82. By taking me through the said documents which are receipts issued by Vadodara Municipal Corporation with regard to payment of property tax, he would submit that the said documents suggest that the appellant is in possession of the property in question since number of years. He would further submit that though the name of the owner of the property in question is mentioned as Dahyabhai C. Patel, the name of the appellant is shown as occupier. He, therefore, would submit that the learned Trial Court has committed error in not properly appreciating the evidence of the witnesses when the possession of the property in question is given for some consideration at the instance of Arvindbhai Pandya with whom an agreement to sell was executed by the original owners. He would further submit that the plaintiffs themselves have produced agreement to sell at Exh.35 which establishes that there was an agreement between the parties for transfer of the property in question. By taking me through the cross-examination of the original defendant No.1 - Arvindbhai Pandya - Exh.60, who ultimately supported the case of the original plaintiffs, he would submit that he has admitted that in the year 1996, he had borrowed some money from the present appellant and the appellant started living in the property in question in the year 2000. He would further submit that the said Arvindbhai Pandya - defendant No.1 had admitted that some writing was executed between the appellant and Arvindbhai Pandya about the financial transaction and how the appellant was put in possession of the first floor of the property in question. He would further submit that though such writing having been executed by the said Arvindbhai Pandya, the same has been deliberately not produced on the record with ulterior motive and in connivance with the original plaintiffs who had subsequently sold the property in question in favour of respondent No.9 - original plaintiff No.9. He would further submit that the learned Trial Court has committed an error in not accepting the case even in the present suit that even though there is no rent receipt issued in favour of the appellant either by the original plaintiffs or by Arvindbhai Pandya, the scrutiny of the cross-examination of Arvindbhai Pandya proves that rent to be given by the appellant was to be adjusted from the money borrowed by the said Arvindbhai Pandya.

4.1 By taking me through the impugned judgment, Mr. Karathiya would submit that this aspect has not at all been considered by the learned Trial Court. Therefore, the present appeal may be considered.

On the other hand, Mr. N. K. Majmudar, learned advocate appearing for the respondent Nos.1 to 9 - original plaintiffs has vehemently opposed even admission of the appeal in view of the fact that the appellant has miserably failed in establishing his legal possession over the property in question. He would further submit that the appellant himself has taken two different defences and/or pleaded different facts that who had given the property in question on rent either Dahyabhai or Arvindbhai Pandya. By taking me through the written statement Exh.15 filed by the present appellant and the plaint of Rent Suit No.185 of 2001 (renumbered as Rent Suit No.100 of 2016) filed by the appellant, he would submit that originally the suit was filed against Dahyabhai Patel and Arvindbhai Pandya alleging that though he is a tenant, the defendants of the said suit are forcibly trying to dispossess him from the property in question, whereas in the written statement filed by the appellant in Special Civil Suit No.838 of 2011, he has alleged that Arvindbhai Pandya had handed over possession of the property in question as a tenant for the monetary consideration. He would further submit that Dahyabhai Patel had expired way back in the year 1993 and, therefore, there is no question of any entry into the property in question in the year 2000 at the instance of the defendants of Rent Suit No.185 of 2001 (renumbered as Rent Suit No.100 of 2016).

5.1 Mr. N.K. Majmudar would further submit that the appellant has miserably failed in establishing any right over the property in question in absence of supporting documents produced by him in the present suit. He would further submit that the present appellant had produced documents in the nature of plaint of Rent Suit No.185 of 2001 (renumbered as Rent Suit No.100 of 2016) vide list at Exh.28 and also produced list of documents at Exh.75 by which property tax bills of Vadodara Municipal Corporation with regard to the property in question are produced.

He would further submit that except these documents, the appellant has not produced any evidence in support of his case in the suit. He would further submit that the appellant has neither produced any rent receipts nor any type of writing executed between him and Arvindbhai Pandya which establishes his legal right over the property in question as claimed by him. He would further submit that it is the consistent say of the appellant that he is the tenant of the property in question and in such capacity, he is entitled for possession of the property in question. However, the said contention of the appellant has not been believed by 3 Courts including this Court and the same has become final. Therefore, in the present appeal, when the original plaintiffs - respondent Nos.1 to 9 herein have approached the Court for taking possession in due course and having filed the Civil Suit, the learned Trial Court has committed no error in passing the decree in favour of the respondents.

5.2 Mr. N.K. Majmudar would further submit that the property in question is situated in Government Society and the parties who entered into agreement to sell in the year 1996 were aware about the hitch before transfer of the property since prior permission of the State Government was required and the same has been reflected in the said agreement to sell. He would further submit that neither the predecessor-in-title of the respondents nor the respondents had ever entered into conveyance with Arvindbhai Pandya with whom the agreement to sell was executed in the year 1996. By taking me through the agreement to sell Exh.35, Mr. Majmudar would submit that the said Arvindbhai Pandya was never permitted to allot any part of the property in question to any third person. He, therefore, would submit that no interference is required in the impugned judgment and decree of the learned Trial Court and hence, the present appeal may be dismissed.

I have heard learned advocates appearing for the respective parties, perused the records and proceedings, the documents produced by the respective parties, evidence led by the witnesses examined by both the parties, scrutinized the documents which have been exhibited and I have also gone through the reasoning part of the impugned judgment Exh.95. The following facts emerge from the record of the proceedings :-

(i) That the immovable suit property was granted in favour ofone Dahyabhai Chhotalal Patel (predecessor of the respondent Nos.1 to 8) in a Government Society which was known as Government Servants (1957) Co-operative Housing Society Limited, Vadodara which is proved and established by the plaintiffs vide Exh.37.

(ii) The Share Certificate produced at Exh.37 further suggests that on the death of Dahyabhai Chhotalal Patel, names of Pravinchandra Dahyabhai Patel was entered in the record of the Society on 10.4.1993.

(iii) Though name of only Pravinchandra Dahyabhai Patel was entered in the record of the Society, all the legal heirs of Dahyabhai through their Power of Attorney Shri Bipinbhai Dahyabhai Patel entered into an agreement to sell for the suit property with one Arvindbhai Morarbhai Pandya on 21.7.1996 - Exh.35. It was agreed in the said agreement to sell that the suit property shall be sold for a sale consideration of Rs.23 Lacs subject to having permission of selling the property within a period of six months from the date of such execution.

(iv) It is pertinent to note that at no point of time, any Sale Deed is executed between Shri Bipinbhai Dahyabhai Patel and Arvindbhai Morarbhai Pandya since no permission was granted by the State Government to sell the suit property.

It also appears that most of the legal heirs of Dahyabhai Patel are residing in foreign countries. It also appears from the deposition of the said Arvindbhai Morarbhai Pandya Exh.60 that he has admitted that he had no authority to deal with the property or hand over the possession to any third party. However, in his cross-examination, he has admitted that he had handed over the portion of the suit property to the present appellant only for temporary period and not as a tenant. Further, with regard to the suit property, the heirs of the original land owner have also executed registered Sale Deed on 9.5.2016 in favour of Dr. B. G. Rathod - respondent No.9 herein (Original plaintiff No.9).

When the original owners of the suit property came to know about the possession of the property in the hands of the appellant and when the appellant filed Rent Suit No.185 of 2001 (renumbered as Rent Suit No.100 of 2016) in the Small Causes Court, Vadodara claiming right over the suit property as a tenant, during the pendency of the said suit, the respondent Nos.1 to 9 herein - original plaintiffs filed Special Civil Suit No.838 of 2011. It is pertinent to note that Rent Suit No.185 of 2001 (renumbered as Rent Suit No.100 of 2016) filed at the instance of the appellant claiming right over the suit property as a tenant came to be dismissed by the competent Civil Court and the said order is confirmed by the lower Appellate Court as well as by this Court in the Second Appeal and, therefore, the claim of the appellant that he is a tenant of the suit property has attained finality and, 0therefore, he cannot be treated as tenant of the suit property.

As far as the suit in question i.e. Special Civil Suit No.838 of 2011 filed by the respondent Nos.1 to 9 - original plaintiffs is concerned, the appellant in his written statement Exh.15 has repeated his claim of possession over the suit property as a tenant. However, he has contended that he is in possession of the suit property through Arvindbhai Morarbhai Pandya since some money transaction had taken place between them. Though such contentions have been raised, the appellant has not produced any supporting documents about his tenancy rights over the suit property. No rent note is produced on the record of the suit. The appellant has only produced receipts of Vadodara Municipal Corporation regarding payment of property tax alleged to have been paid by him wherein his possession is shown in the record. Except these documents, there is no other document produced by the appellant which establishes his right to continue the possession of the suit property and particularly when his claim about the tenancy rights over the suit property is finally dealt with and the same is not accepted even by the coordinate Bench of this Court. The learned Trial Court has dealt with all these aspects in detail and has rightly held that he can be treated as trespasser over the suit property. The suit of 2001 was filed against Dahyabhai Patel (allottee of the suit property) as if he was alive. If the plaint of suit of 2001 and written statement in the present suit filed by the appellant is perused, it appears that he himself is not clear that who had handed over the possession of the suit property since Dahyabhai had expired in the year 1983, much prior to claiming possession of the suit property.

As far as the damages awarded by the learned Trial Court are concerned, this Court does not find any reason to interfere with the same. Accordingly, the present appeal is summarily dismissed.

Registry is hereby directed to send back the Records and Proceedings to the learned Trial Court forthwith.