(1.) Challenge in this Second Appeal is made to the concurrent findings of both the Courts below, and is directed against the judgment and decree passed by the Appellate Court below i.e. the 2nd Additional District Judge, Jamnagar, at Khambhalia in Regular Civil Appeal No.81 of 2010, dated 20.07.2013, by which the common judgment and decree passed by the Trial Court i.e. the Principal Civil Judge, Dwarka, in Regular Civil Suit No.41 of 2003 and Regular Civil Suit No.61 of 2002, dated 04.08.2010, is confirmed. The Trial Court has, inter-alia, directed the present appellant to handover the peaceful and vacant possession of the suit premises to the owner - the present respondents.
(2.) The relevant facts, as emerging from record, are as under.
2.2 The present respondents are the legal heirs of one Shantilal Vallabhdas Jogia, who was the owner of the suit property, which is a self-contained residential premises in a compound, consisting of two rooms, kitchen, toilet, bathroom, varandah, borewell etc. The said property is situated at Gayatrinagar, Village-Arambhada, Taluka-Dwarka, District- Jamnagar.
2.3 The said owner had, by a written agreement dated 29.07.2002 (Exhibit-34), permitted the present appellant to use the said premises, for a period of eleven months with effect from 01.08.2002, against payment of Rs.800/- per month. The said agreement, inter alia contained conditions to the effect that, the said agreement was for eleven months only, and further that even before expiry of eleven months, the owner would be free to ask for possession of the said premises, by giving one month notice. It was categorically provided in the said agreement that, on expiry of the period of eleven months, the present appellant would handover peaceful vacant possession of the said premises, to its owner.
2.4 Pursuant to the above agreement, the present appellant had entered in the suit premises on 01.08.2002. There is no dispute with regard to the existence, contents or the binding force of the said document (Exhibit-34). There is no renewal of the said agreement either.
2.5 During the currency of those eleven months, the owner wanted back the possession of the said property, and in consonance with the stipulation of the said agreement, the owner issued notice to the appellant on 23.08.2002. As per the said notice, on expiry of one month from that day i.e. by 23.09.2002, possession was required to be handed over by the present appellant to the owner. However, in September 2002 itself, the present appellant moved the Civil Court by filing Regular Civil Suit No.61 of 2002 praying that, he be not evicted from the suit premises except in accordance with due process of law. On application Exh.5, protection was granted by the Trial Court. Suit remained pending.
2.6 Thus the owner of the property could not get back the possession of the suit premises, pursuant to the notice dated 23.08.2002, principally on the ground that, in September, 2002, the lease period of eleven months had not expired, and the present appellant had right to occupy the suit premises to its full term of eleven months. The said agreement outlived its life of eleven months on 30.06.2003.
2.7 In above circumstances, the Regular Civil Suit No.61 of 2002 filed by the present appellant, in effect, got decreed without any adjudication, because of its very pendency till 30.06.2003. The appellant occupier should have handed over the possession of the suit premises atleast on 01.07.2003, which he did not do. The appellant had not even paid for last three months, of total eleven months.
2.8 In these circumstances, the owner- the present respondent moved the Civil Court by instituting Regular Civil Suit No.41 of 2003 for getting possession of the suit premises. Since the appellant had not even paid for last three months, out of total eleven months, the owner also claimed the said amount in the suit. It is also claimed that, he be compensated by mesne profit until the present appellant hands over peaceful and vacant possession of the suit premises.
2.9 Both the suits were tried together. As noted above, there was nothing left to be tried after 30.06.2003, so far Regular Civil Suit No.61 of 2002 was concerned. Therefore, the Trial Court referred to the owner i.e. the plaintiff of Regular Civil Suit No.41 of 2003 as the plaintiff and the present appellant as the defendant, though he was plaintiff of Regular Civil Suit No.61 of 2002.
2.10 In above factual background, the legal heirs of the owner, even after succeeding before both the Courts below, are still struggling to get back the possession of their own property. The irony is that, the suit premises which was leased for eleven months, is with the appellant, even after more than eleven years and he has not paid even a rupee to the owner of the property during this period. It is in this factual background, that the present Second Appeal is being considered by this Court.
(3.) Heard Mr.Shakti S. Jadeja for Mr.S.P.Majmudar, learned advocate for the appellant and Mr.Mehul S. Shah, learned advocate for the respondents.;