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IN THE HIGH COURT OF GUJARAT
C.L. Soni, J.
Natwarlal Mohanlal Chauhan - Appellant
Versus
Babulal Mohanlal Hasoti & Anr. - Respondents
Second Appeal No. 100 of 1993
Decided On : 14-09-2012
Civil Procedure Code,1908 - Section 100 - Second Appeal - The appellant had filed the suit against the respondents for the recovery of the possession of the suit property - It was the case of the appellant in the suit that father of the appellant was tenant of the suit property, that he died in the year 1974 and the appellant became the tenant of the suit property, that along with the appellant, his brother and wife of his brother both were also residing in the suit property, but after the death of the father of the appellant, the wife of the elder brother of the appellant, who was defendant No.2 purchased the suit property, but neither the original owner nor the defendant No.2 informed the appellant about such purchase - Appeal - Held, The suit is not against the original owner of whom the appellant and his elder brother both were tenant in the suit premises - The respondent No.2 purchased the suit premises in the year 1982 i.e. after the appellant left the suit premises - Therefore, when the suit premises was purchased by the respondents, the appellant was not there in the suit premises at all and had no grievance till 1987 - This conduct on the part of the appellant would speak volumes about his taking action as regards his tenancy rights for the purpose of which the appellant was knowing very well - Therefore, the evidence on record as also the conduct of the appellant go to suggest that there was concious surrender of tenancy by the appellant - It is not necessary that the tenancy right can be surrendered only by giving writing to the landlord - Therefore, in my view, there cannot be any absolute proposition that the tenancy right in the property could not be relinquished orally, it always depends upon the facts and circumstances of each case - Courts have found from appreciation of the evidence that the appellant had already surrendered the tenancy rights by leaving the premises and by not taking action for long time, I do not find any error in such findings recorded by both the Courts below - Appeal dismissed.
Facts of the case:
The appellant had filed the suit against the respondents for the recovery of the possession of the suit property - It was the case of the appellant in the suit that father of the appellant was tenant of the suit property, that he died in the year 1974 and the appellant became the tenant of the suit property, that along with the appellant, his brother and wife of his brother both were also residing in the suit property, but after the death of the father of the appellant, the wife of the elder brother of the appellant, who was defendant No.2 purchased the suit property, but neither the original owner nor the defendant No.2 informed the appellant about such purchase.
Findings of the case:
The suit is not against the original owner of whom the appellant and his elder brother both were tenant in the suit premises - The respondent No.2 purchased the suit premises in the year 1982 i.e. after the appellant left the suit premises - Therefore, when the suit premises was purchased by the respondents, the appellant was not there in the suit premises at all and had no grievance till 1987 - This conduct on the part of the appellant would speak volumes about his taking action as regards his tenancy rights for the purpose of which the appellant was knowing very well - Therefore, the evidence on record as also the conduct of the appellant go to suggest that there was concious surrender of tenancy by the appellant - It is not necessary that the tenancy right can be surrendered only by giving writing to the landlord - Therefore, in my view, there cannot be any absolute proposition that the tenancy right in the property could not be relinquished orally, it always depends upon the facts and circumstances of each case - Courts have found from appreciation of the evidence that the appellant had already surrendered the tenancy rights by leaving the premises and by not taking action for long time, I do not find any error in such findings recorded by both the Courts below
Result:
Appeal dismissed.
JUDGMENT :
C.L. Soni, J.
This appeal under Section 100 of the Civil Procedure Code is preferred by the appellant-original plaintiff against the judgment and order dated 09.09.1992 passed by the learned Assistant Judge, Bharuch in Regular Civil Appeal No.115 of 1989 whereby learned Appellate Judge has dismissed the appeal and confirmed the judgment and decree passed by the learned trial Judge in Regular Civil Suit No.150 of 1987.
2. The appellant had filed the aforesaid suit against the respondents for the recovery of the possession of the suit property. It was the case of the appellant in the suit that father of the appellant was tenant of the suit property, that he died in the year 1974 and the appellant became the tenant of the suit property, that along with the appellant, his brother and wife of his brother both were also residing in the suit property, but after the death of the father of the appellant, the wife of the elder brother of the appellant, who was defendant No.2 purchased the suit property, but neither the original owner nor the defendant No.2 informed the appellant about such purchase. However, the appellant, his elder brother and wife of his elder brother all continued to reside together in the suit premises. On 09.06.1987, when the appellant was at his shop, the respondents took out the household articles belongings to the appellant from the suit premise and took away the possession of the suit premises and, therefore, the suit came to be filed for recovery of the possession of the suit premises.
3. The suit was resisted by the respondents mainly on the ground that the appellant had already shifted to another place before about six years and the respondents continued to be in possession of the suit premises and thereafter, in the year 1982, the respondent No.2 - original defendant No.2 had purchased the suit premises from the original owner and thus, they have continued in possession of the suit premises, that there was no question of termination of tenancy because the appellant had already left the suit premises as he had already acquired another premises and, therefore, the suit was also barred by law of limitation. On the basis of the evidence available on record, the learned trial Judge recorded the finding to the effect that the appellant had already left the suit premises and started residing in the property at Chauta Bazar, Surat city for last many years and the suit came to be filed after a period of more than 5 to 7 years. The learned trial Judge thus dismissed the suit by judgment and decree dated 27.10.1989.
4. Being aggrieved by the judgment and decree passed by the learned trial Judge, the appellant preferred Regular Civil Appeal No.115 of 1989 in the Court of learned Assistant Judge, Bharuch. The learned Appellate Judge considered the documentary evidence available at Ex.31, 48 and evidence of two witnesses on the side of the appellant at Ex.65 and 66. On appreciation of the evidence, the learned Appellate Judge came to the conclusion that the appellant had already left the premises on 04.10.1989 as per the panchnama drawn in the suit which was filed against the appellant of the shop wherein the appellant had started residing after leaving the suit premises and also came to the conclusion that the appellant did not take any action from 1982 to 1987 and, therefore, cumulative effect of the evidence available on record could be only that the appellant had surrendered his tenancy right in favour of the respondents and, therefore, there was no need to interfere with the finding recorded by the learned trial Judge. Thus, on appreciation of the evidence, the learned Appellate Judge recorded the finding of fact that the appellant after having surrendered his tenancy right by leaving the premises to stay at another premises was not entitled to get any relief and, therefore, learned Appellate Judge dismissed the appeal vide judgment and order dated 09.09.1992. It is against this judgment and order, the appella
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