Gujarat HC Upholds Eviction Of Late Lessee’s Brother-In-Law From Plot, Removes Mesne Profits After Heirs Agree Not To Recover

The plaintiffs sought possession of Plot No. 204, Ward No. 2/B, Adipur, and mesne profits, claiming that Manjulaben—whose legal heirs they were—held the leasehold rights and had permitted the original defendant, her brother-in-law, to occupy the property.

After the original defendant died, his legal heirs were joined and served but did not appear or lead evidence.

The Trial Court decreed possession and awarded mesne profits; the First Appellate Court affirmed.

The heirs appealed under Section 100 CPC, disputing, among other things, the opportunity to defend, the framing of issues, the plaintiffs’ title, and the mesne-profit award.

Section 100 CPC confines a second appeal to a substantial question of law; the High Court may not reappreciate concurrent factual findings unless they fall within recognised grounds for interference, such as being contrary to mandatory law, based on inadmissible evidence, or unsupported by evidence.

Under Section 54 of the Transfer of Property Act, 1882, an agreement to sell does not, by itself, create an interest in or charge on immovable property.

A person in permissive possession may be required to restore possession to the person entitled to it.

The Court also relied on Jaichand (Dead) through LRs v. Sahnulal, 2024 SCC OnLine SC 3864, and Russi Fisheries (P) Ltd. v. Bhavna Seth, 2026 SCC OnLine SC 555, on the restricted scope of second appeals.

The Court found that the plaintiffs proved Manjulaben’s leasehold rights and that the defendant’s possession was permissive.

The appellants showed no evidence establishing a right, title, or interest in the property; the pending specific-performance suit and the alleged agreement to sell did not themselves confer such an interest, and no injunction had been obtained in that suit.

The Court held that forgery was not the basis of the possession decree, so the absence of a separate issue on forgery did not undermine the judgments.

The record also showed that the appellants were served after being joined as parties but chose not to appear, defeating their claim that they had been denied a reasonable opportunity.

The concurrent findings disclosed no substantial question of law; however, the plaintiffs’ undertaking not to execute the mesne-profit award was given effect.

It modified the decree to provide that the plaintiffs could not recover mesne profits from the defendants.

There was no order as to costs, and the stay application was disposed of as no longer surviving.