Decided on August 03,1983

Ghanshyambhai Dattaram Brahmbhatt Appellant
Babubhai Shankarlal Shah Respondents


A .M.AHMEDI,J. - (1.) In the town of Nadiad, in ward No. 9 bearing House No. 1445, is a shop belonging to Gokulnathji Temple Trust whereof Mahalaxmi Vahuji Maharaj is the trustee and Rameshbhai Patel is her Karbhari. The said shop was let to one Parshottamdas Gordhandas Kachhia by the said trust. There was litigation between the trust and the said Parshottamdas for possession of the shop but the trust had failed to secure a decree in ejectment against the tenant. The first respondent, the original plaintiff, was desirous of obtaining the said shop on rent from the trust. Parshottamdas was prepared to vacate the shop on payment of Rs. 5,000/ -. The plaintiff, therefore, agreed to pay a sum of Rs. 5,000/ - to Parshottamdas whereupon the respondent Karbhari agreed to put the plaintiff in possession of the shop as a tenant. Pursuant to this arrangement the plaintiff paid a sum of Rs. 5,000/ - in two instalments of Rs. 2,500/ - each on 17th February 1976 and 18th February 1976 to Parshottamdas whereupon the latter handed over the demised shop to the Karbhari who in turn put the plaintiff in possession thereof under the writing, Exhibit 24, dated 18th February 1976. It is the case of the plaintiff that after he was put in possession of the shop on 18th February 1976 at about 12 -30 P.M. he applied his lock. It is further his case in the plaint that the present appellants, original defendants Nos. 4 and 5, broke open the lock on the same day at about 11.00 P.M. in collusion with the Karbhari and thus forcibly dispossessed him. He, therefore, filed Suit No. 178 of 1976 in the Court of the learned Civil Judge (Senior Division) Nadiad, for being put back in possession of the shop of which he was forcibly dispossessed.
(2.) IN the said suit, besides making the present appellants, alleged trespassers, parties to the suit, he also impleaded the trust, its trustee Mahalaxmi Vahuji Maharaj and the Karbhari Rameshbhai M. Patel as co -defendant, However, no relief was claimed against them.
(3.) THE defendants filed a joint written statement, Exhibit 11, resisting the plaintiff's prayer for possession. Certain technical objections were raised regarding the maintainability of the suit but so far as facts are concerned, it was denied that the plaintiff had paid Rs. 5,000/ - to Parshottamdas and thereafter he had been inducted in the shop as a tenant by the Karbhari of the trust. It was also denied that he had applied his lock to the shop after being put in possession thereof on 18th February 1976 at about 12.30 P.M. On the contrary, it was contended by the defendants that after Parshottamdas vacated the suit shop, the appellants were put in possession thereof under a lease deed executed by the Karbhari on behalf of the trust and the trustee Mahalaxmi Vahuji Maharaj. The appellants, therefore, contended that they were in lawful use and occupation of the suit shop and the plaintiff was not entitled to obtain possession thereof from them. The learned trial Judge framed issues at Exhibit 12. Issue No. 1 related to the creation of the tenancy in favour of the plaintiff on 18th February 1976 and issues Nos. 2 and 3 related to the plaintiff having been put in possession of the shop on that afternoon and having been forcibly dispossessed by the appellants that night. The other issues concerned the technical objections raised in the written statements, Exhibit 11. The learned trial Judge came to the conclusion that the plaintiff was put in possession of the suit shop on the afternoon of 18th February 1976 on the operation of a lease in his favour and that he was forcibly dispossessed by the appellants subsequently on that very day. In the view that he took, he passed an eviction decree against the appellants, original defendants Nos. 4 and 5.;

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