ORDER :

1. By way of this second appeal, the appellant – original plaintiff has challenged the judgement and decree dated 28/2/2023 passed by the 3rd Additional District Judge, Surat in Regular Civil Appeal No.29 of 2021 upholding the judgement and decree dated 21/7/2020 passed in Regular Civil Suit No.444 of 2009 inter-alia dismissing the suit filed by the appellant.

2. Factual aspect of the case are as under :-

2.1. That the appellant – plaintiff was appointed as a Junior Clerk in Gujarat Housing Board, Surat and he was allotted residential premises being House No.1981, Keshavkunj 24, M.I.G. Staff Quarters, situated at Sachin, Surat by the Gujarat Housing Board, Surat vide allotment order dated 3/12/1992.

2.2. The appellant – original plaintiff preferred a suit being Regular Civil Suit No.444 of 2009 against the respondents– original defendants inter-alia seeking declaration inasmuch as transfer of ownership rights with respect to the suit premises in favour of the appellant from the respondent and further sought permanent injunction.

2.3. In the aforesaid suit, Written Statement was filed by the defendants vide 16 and the trial court framed Issues at Ex.21. Upon adducing the evidence and appreciating the evidence, the learned 3rd Additional Senior Civil Judge, Surat dismissed the Regular Civil Suit No.444 of 2009 vide judgement and decree dated 21/7/2020.

2.4. Being aggrieved by the aforesaid judgement and decree passed in Regular Civil Suit No.444 of 2009 dated 21/7/2020, the appellant – original plaintiff preferred Regular Civil Appeal No.29 of 2021 before the Principal District Judge, Surat which came to be dismissed by the judgement and decree dated 29/4/2022.

2.5. Being aggrieved by the aforesaid order of the first appellate court passed in Regular Civil Appeal No.29 of 2021, the appellant preferred Second Appeal No.301 of 2022 before this Court and Co-ordinate Bench of this Court quashed and set aside the judgement and decree dated 29/4/2022 passed by the first appellate court and remanded the matter to the trial court to decide the matter afresh and also directed the parties to maintain status-quo with respect to the suit property.

2.6. Thereafter, on remand, the matter was heard and the learned 3rd Additional District Judge Surat vide judgement and decree dated 28/2/2023 dismissed the Regular Civil Appeal No.29 of 2021 upholding the judgement and order dated 21/21/7/2020 passed in Regular Civil Suit No.444 of 2009.

2.7. Against the aforesaid judgement and decree passed by the first appellate court on remand, the appellant herein – original plaintiff has preferred the present Second Appeal.

3. Heard Mr.P.K. Jani, learned senior advocate appearing on behalf of M/s.Vyas Associates for the appellant and Mr.G.H. Virk, learned advocate for the respondents.

4. SUBMISSIONS OF APPELLANT :

4.1. Mr.P.K. Jani, learned senior advocate for the appellant has vehemently submitted that the learned first appellate court has not considered the provision of law. It is submitted that the defendant – Gujarat Housing Board has come out with a case that the the property in question was parted with the possession by the appellant and that parting of the possession was with consideration and when the defendants came out with this defence of sub-letting the property, the basic and fundamental liability is on the defendant to prove the defence of subletting the property. He has submitted that as such, the aspect of sub-letting the property has not been proved. It is submitted that, however, the trial court and the first appellate court has failed to appreciate this aspect.

4.2. Mr.P.K. Jani, learned senior advocate for the appellant has further submitted that the learned first appellate court failed to appreciate that merely on exhibiting the documents, t