Gujarat HC Upholds Eviction of Relative Who Overstayed Two-Year Leave and Licence, Rejects Tenant Status Claim

A near relative permitted to occupy a Motera house for two years post-retirement could not claim tenancy protection; the Gujarat Rent Act did not apply to the post-2001 property.

The High Court of Gujarat at Ahmedabad has confirmed an eviction decree against a man who occupied his relative's house at Motera, Gandhinagar, under a two-year leave and licence arrangement entered in December 2005 and refused to vacate after it expired. Justice J. C. Doshi, sitting singly, dismissed the first appeal filed by the occupant against the decree passed on 17 June 2016 by the Principal Senior Civil Judge, Gandhinagar in Special Civil Suit No. 403 of 2011. The court found that the Gujarat Rent, Hotel and Lodging House Rent Control Act, 1947 had no application because the property was constructed and possession was received only in 2004 — well after the 2001 amendment that exempted new premises. With the Rent Act excluded, the relationship between the parties was governed entirely by the written agreement and the Transfer of Property Act, 1882, and the occupant's continued possession after the licence period was held to be without legal basis.

The Dispute Before the High Court

The plaintiff owns House No. 53, Hariomnagar Part-2, Motera Village, Taluka and District Gandhinagar. He received a possession letter for the property on 6 April 2004 and holds a share certificate dated 25 July 2002 from the society.

Around 2005, the defendant — a near relative of the plaintiff — was working at Torrent Electricity Company and approaching superannuation. He needed a temporary place to stay. On the plaintiff's account, the house was given gratuitously, on the defendant's request and out of goodwill, for a period of two years. An agreement, Exhibit 40, dated 26 December 2005 formalised this arrangement. The defendant was to vacate once he found his own residential premises. No rent was to be charged.

Two years elapsed. The defendant did not vacate. Instead, he filed Regular Civil Suit No. 293 of 2008 before the 7th Additional Senior Civil Judge, Gandhinagar, seeking an order that he could not be evicted without due process of law. That court did not decide the matter in the defendant's favour on merits but directed that he not be evicted without following due process. The plaintiff then filed Special Civil Suit No. 403 of 2011 seeking recovery of possession and mesne profits at Rs. 5,000 per month from January 2008.

The trial court allowed the plaintiff's suit, declared the defendant's possession illegal, directed him to hand over vacant and peaceful possession within two months, restrained him from transferring or encumbering the property, and directed payment of mesne profits at Rs. 5,000 per month from January 2008. The defendant appealed.

The Defendant's Case and the Legal Issues Framed

Before the High Court, the defendant's advocate, Mr. PJ Yagnik, advanced several arguments. First, he contended that the defendant was a lawful tenant at a monthly rent of Rs. 1,500 and was therefore protected under the Gujarat Rent Act. Second, the Civil Court lacked inherent jurisdiction to try a landlord-tenant dispute, and the plaintiff had filed the suit there specifically to bypass the Rent Court. Third, Exhibit 40 was not validly proved because the defendant's signature was obtained under duress. Regarding the last point, the defendant had claimed in his oral deposition that the plaintiff threatened to commit suicide unless he signed the agreement. Fourth, the trial court's judgment was cursory and ignored the evidence of four witnesses examined on behalf of the defendant — a failing attributed to the defendant's then-advocate, who had prepared identical affidavits for all four witnesses.

The plaintiff's advocate, Mr. DK Puj, countered that Exhibits 37, 38 and 39 — the booking agreement, share certificate and possession letter — established uncontested ownership. Exhibit 40 governed the relationship, and the defendant had not produced a single document to establish tenancy or any sale arrangement. The plaintiff also conceded that the trial court had erred in directing mesne profits from January 2008 when the suit was filed only on 23 December 2011, and sought modification of that direction.

Justice Doshi framed the central questions as: whether the defendant had proved he was a tenant protected under the Gujarat Rent Act or a lessee governed by the Transfer of Property Act; and whether the trial court had erred in its findings of fact or law.

Why the Gujarat Rent Act Did Not Apply

The question of the Rent Act's applicability was resolved by Section 4(1A) of the Gujarat Rent, Hotel and Lodging House Rent Control Act, 1947, as amended by the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Second Amendment) Act, 2001. That sub-section exempts premises constructed on or after 5 September 2001 from the operation of the Rent Act.

The plaintiff's possession letter (Exhibit 39) is dated 6 April 2004. The share certificate (Exhibit 38) was issued on 25 July 2002. The booking agreement (Exhibit 37) is also on record. From these documents, Justice Doshi found that the suit property was constructed and possession was received only in 2004, squarely after the cutoff date of 5 September 2001. The Rent Act therefore did not apply to it at all.

The court relied on the coordinate bench's decision in Jamnadas Mangaldas Sharma v. Rajeshkumar Somabhai Parekh, 2019 JX(Guj) 480, which had examined the same provision in detail, along with Dipak Rasbiharilal Goyel v. Naliniben H. Raval (First Appeal No. 879 of 2011, decided 23 March 2012). Both decisions had confirmed that when premises fall within the exemption under Section 4(1A), the Rent Act is wholly inapplicable and the parties are governed by their private agreement and the Transfer of Property Act.

Because the Rent Act did not apply, the jurisdiction challenge fell away entirely. The Civil Court had full jurisdiction to try the suit, and the argument that the plaintiff had filed the suit there to circumvent the Rent Court was rejected outright.

The Agreement at Exhibit 40 and the Duress Allegation

With the Rent Act excluded, the entire case turned on Exhibit 40. The defendant had accepted his signature on it but sought to impeach the document. His written statement alleged that the signature was taken without his clear consent. However, in his oral examination-in-chief during trial, a materially different — and far more specific — allegation emerged: that the plaintiff had threatened to commit suicide unless the defendant signed.

Justice Doshi found this chronology telling. The suicide threat allegation had never appeared in the written statement. It had not been raised in the earlier suit filed by the defendant in 2008. It surfaced for the first time in oral deposition. The court described it as a “hollow statement” that was a “clear afterthought product.” The defendant had known of the agreement since 2005 but offered no contemporaneous document, no police complaint, and no prior pleading to support so grave a claim.

Since the defendant failed to discharge the burden of proving that Exhibit 40 was executed under duress or without free consent, the document was held to be proved and binding. Its recital was reproduced in the judgment. The document records that the lessee took the house for residential purposes for a period of two years only, that no rent of any nature was payable, that no security deposit was received, and that the agreement was executed “voluntarily, in our full senses, and without any duress, coercion, or inducement.” No other document executed between the parties established any relationship of landlord-tenant, lessor-lessee, or vendee.

The nature of the arrangement, Justice Doshi concluded, was a leave and licence. Once the two-year licence period expired — sometime at the end of 2007 — the defendant's possession became illegal.

The Defendant's Witnesses and the Advocate's Conduct

The defendant had examined four witnesses in addition to his own oral evidence. The coordinate bench of the High Court, while admitting the appeal, had observed that the defendant's then-advocate had led evidence carelessly: all four witnesses filed affidavits that were identical copies of each other from paragraph five onwards, and their cross-examinations were also identical. It was argued that the defendant should not suffer for his advocate's failings, and that the trial court had not discussed this witness evidence at all in its judgment.

Justice Doshi acknowledged the trial court's omission but held it did not change the outcome. None of the four witnesses produced any documentary evidence. Witness Jignesh Sawai Singh (Exhibit 58) admitted in cross-examination that he ran a milk-selling business on the suit property, had constructed a cabin outside it, and paid Rs. 1,000 towards rent — evidence that, if anything, undermined the defendant's claim to residential tenancy. The defendant himself, in his deposition at Exhibit 52, admitted that no agreement had been executed between him and the plaintiff.

The court also rejected the argument that the defendant should be excused on account of his advocate's conduct. The defendant had himself initiated prior litigation against the plaintiff and was therefore not a stranger to court proceedings. No complaint had been made against the advocate at any point, including in the appeal memo.

The Supreme Court Principle on Permissive Possession

Justice Doshi applied the principle laid down by the Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack De Sequeria (Dead) Through LRs, 2012 (5) SCC 370. That judgment holds that a person other than the owner who is in possession is presumed to hold permissively on behalf of the title-holder. The right to past possession and the right to continue in possession going forward are distinct. A person seeking to resist eviction must plead specifically and produce documents to support that claim; oral evidence alone is insufficient where documentary proof would ordinarily be expected.

In the present case, the defendant's claim to legal possession rested entirely on oral testimony. No rent deed, no receipt, no sale agreement, no correspondence — nothing documentary established his right. Exhibit 40 itself disproved tenancy. The plaintiff's ownership evidence at Exhibits 37, 38 and 39 remained unchallenged throughout.

Outcome

Justice Doshi partly allowed the first appeal to the limited extent of correcting the mesne profits date. The trial court had directed payment from January 2008, but the plaintiff had not claimed mesne profits from that date; the suit was filed on 23 December 2011. The plaintiff's counsel had himself conceded this error and sought modification. The court substituted the January 2008 date with 23 December 2011, the date of filing of the suit. The defendant remains liable to pay Rs. 5,000 per month as mesne profits from 23 December 2011 until the date of actual delivery of vacant and peaceful possession.

In all other respects — the declaration that the defendant's possession is illegal, the direction to hand over possession, and the perpetual injunction against transfer or encumbrance — the judgment and decree of the Principal Senior Civil Judge, Gandhinagar dated 17 June 2016 were confirmed. Any interim relief granted during the appeal was vacated forthwith.

After pronouncement, the defendant's advocate sought a suspension of the order to approach a higher forum. The court suspended the operation and implementation of the judgment and decree for four weeks from 3 July 2026.