LAWS(GJH)-1998-9-36

CHANDRAKANT CHUNILAL SHAH Vs. GOVINDJI DOLAJI

Decided On September 29, 1998
CHANDRAKANT CHUNILAL SHAH Appellant
V/S
GOVINDJI DOLAJI Respondents

JUDGEMENT

(1.) This First Appeal by original plaintiffs is directed against the judgment and decree of the Judge, City Civil court No.12, Ahmedabad, dated 13th July 1979 in Civil Suit No.3780/75, under which the suit filed by the plaintiffs-appellants for recovery of possession of suit premises, future mesne profits and costs thereof has been dismissed.

(2.) The facts of the case, in brief, are that the plaintiffs are joint owners of block No.16 bearing Survey No.481-B-17 admeasuring 46 sq.yds. in Nagori Shala, Ratanpole in Kalupur ward in Ahmedabad, which has been purchased by them for Rs.15,000/= from its owners Suvarnkumar Ambalal and Nipunkumar Ambalal by registered sale deed dated 25.7.75. This premises consists of ground floor and two upper floors. The ground floor consisting of two rooms (hereinafter referred to as suit premises) which were in occupation of Bai Teja Prajapati as a tenant since her predecessor-in-title. After her death, her daughter Bai Gauri was in occupation of it as statutory tenant and she was residing with her mother in the premises at the time of her death. Bai Gauri had only one daughter named Shanta, who had been married and she resides with her husband and children at Deesa, District: Banas Kantha. The defendant-respondent is the son of Bai Shanta. He was residing with his parents and other family members at Deesa and he never resided with Bai Gauri in the suit premises during her life time. Bai Gauri was in occupation of the suit premises till her death on 9.6.75. After death of Bai Gauri, the defendant-respondent, being her grand-son came to stay in the sit premises for performance of her after death ceremonies and since then what the plaintiffs have alleged, unlawfully took possession of the suit premises. It is further case of the plaintiff that the defendant-respondent had promised to vacate the suit premises but he did not vacate the same. The plaintiff had never accepted him as a tenant either by themselves or by their predecessor-in-title nor any tenancy rights does devolve to him in respect of suit premises in accordance with law. His possession of suit premises was not as a tenant but as a trespasser. The plaintiff served the defendant-respondent with a notice dated 30th July 1975 and thereby directed him to deliver vacant possession of suit premises. However, the defendant-respondent did not comply with it and instead of vacating the suit premises, gave reply thereto on 7.8.75. The plaintiff filed present suit for recovery of possession of the suit premises against the defendant-respondent and future mesne profit at the rate of Rs.25/= p.m. from the date of suit til possession of suit premises is delivered and costs of the suit.

(3.) The defendant-respondent, on receipt of summons of the suit resisted the same by filing written statement. He has shown ignorance of the fact that the plaintiffs have purchased the suit premises. He admitted that Bai Teja was in occupation of the suit premises as a tenant and after her death, her daughter Bai Gauri became its tenant as she was residing with her mother in the premises, but it is denied that Bai Gauri became a statutory tenant and according to him she was in occupation of the premises as lawful tenant. It is admitted by defendant-respondent that his mother Bai Shanta is the daughter of Bai Gauri and she is the only heir of Bai Gauri. The defendant-respondent has admitted that Bai Shanta, his mother resides with her husband, his father, at Deesa. It is denied in written statement that he was residing with his parents and other family members at Deesa till death of Bai Gauri and he never resided with Bai Gauri in the suit premises during her life time. The defendant-respondent has come up with the case that he had settled in Ahmedabad since last couple of years and is carrying on his business at Ahmedabad and as Bai Gauri was his maternal grant mother, he was residing with her in the suit premises till her death and even also thereafter. Bai Gauri was not keeping good health prior to her death and so the defendant-respondent was required to attend her and to secure medicines and other medical help for her and his mother Bai Shanta often used to visit Ahmedabad to look after Bai Gauri and she also used to put up and stay with her mother in the suit premises. So in sum and substance, the defendant-respondent pleaded defence that he is in possession of suit premises as tenant and he was residing with her maternal grand mother as member of her family at the time of her death. He pleaded the Will executed by Bai Gauri thereby bequeathing her property to the defendant-respondent and other member of the family and by virtue of that registered will he acquired tenancy rights in the suit premises in accordance with law and he claimed himself to be a lawful tenant of the suit premises. Plea has been taken that the Civil Court has no jurisdiction to entertain the suit as it pertains to dispute of tenant and landlord regarding tenancy. On the basis of pleadings of the parties, the learned trial Court framed as many as five issues in the suit which are as under: