Ramvijay Flour Factory vs Stalsaji Venaji

K.S. Jhaveri, J.—When the matter was earlier listed before this Court on 25.11.2010, learned Counsel for the Appellant was not present. Even today, when the matter was called out, learned Counsel for the Appellant is not present. In view of the same and since the matter is of 1993, it is decided on merits.

This appeal has been filed against the judgment and decree passed by the learned Judge, Court No. 6, City Civil Court, Ahmedabad in Civil Suit No. 3004/1983, whereby, the said suit was dismissed.

The facts in brief, as emerging from the record, are that the Appellant was having tenancy rights in respect of the property being a "flour factory" (hereinafter referred to as "the disputed property"). He had possessed tenancy rights of the disputed property from the original owner one Hiralal Mangaldas Patel vide registered sale deed dated 28.06.1957. After obtaining necessary licence from the competent authority, the Appellant was carrying on the business of flour factory. However, since 1961 the Appellant had granted leave and licence to run the said factory to the Respondent on certain terms and conditions.

It is the case of the Appellant that the Respondent had committed defaults in making payment of the licence fees. Therefore, vide Notice dated 25.07.1983, the Appellant terminated the licence and claimed possession of the factory premises along with arrears on licence fees. However, the Respondent did not adhere to the same. Therefore, the Appellant filed the suit in question praying for a declaration and injunction. The said suit came to be dismissed by the Court below by way of the impugned judgment and decree. Hence, this appeal.

Having gone through the records of the case, I find that there is nothing on record evidencing any transaction between the Appellant and the deceased in respect of the disputed property. Evidently, the Respondent has been enjoying exclusive possession of the disputed property since 1961.

Though an attempt has been made on behalf of the Appellant to show that the Respondent has been using the disputed property illegally for a residential purpose and has illegally carried out alterations, the fact remains that despite the lapse of a considerable long period, no steps were taken by the Appellant against the Respondent for the alleged wrongful acts of the Respondent. Though the licence and shop establishment certificate stand in the name of the Appellant, all the charges have been paid by the Respondent. In other words, the disputed property was under the complete control and supervision of the Respondent. Therefore, from the records, a reasonable inference could be drawn on the balance of probability that the Respondent was granted the right to enjoy the possession of the disputed property, including the machinery of the flour factory, in lieu of a monetary consideration that was being paid periodically.

In view of the above discussion, I find no merits in the present appeal. Consequently, the appeal is dismissed. No costs.