Relative Allowed To Stay Gratuitously In House Can't Claim Tenancy Rights After Expiry Of Licence: Gujarat High Court

The Gujarat High Court dismissed a man's claim for possession over his relative's property despite expiry of 2-year license agreement, observing that the owner had permitted the defendant to stay at his premises gratuitously for a limited period and out of their relationship which cannot be used to claim tenancy rights. [2026 LiveLaw (Guj) 194]

Justice JC Doshi noted that the defendant was in need of residential premises, as he was about to retire from service. The court noted that the defendant was looking for the residence for limited time period and the plaintiff out of goodwill and the relationship shared with the defendant offered his house.

The court said that as the license agreement was execute between the plaintiff and defendant for two years, then after expiry of the period the defendant's possession became illegal. It said:

"The defendant is in possession of the suit property under the good will of the plaintiff, who is the owner. The plaintiff, as owner, permitted the defendant to reside in the premises gratuitously and for a limited period, out of their family relationship and because the defendant was on the verge of superannuation. The defendant did not vacate the premises upon expiry of the agreed period and has continued in possession since 2005 without any legal basis...

The defendant, in the present case, does not have any valid, subsisting agreement rent, lease, or licence in his favour. Exhibit 40 itself establishes that his possession was permissive and for a limited period. The defendant's claim to remain in possession, supported only by oral evidence and unsupported by any documentary proof of tenancy, fails. The learned trial court has not committed any error of law or fact in passing the decree in favour of the plaintiff". 

The court further ruled that the defendant was not a tenant and could not claim rights under the Rent Act. It said that since the property was constructed and possession was taken in 2004, the provisions of the Rent Act will not apply.

"It is pertinent to note that the defendant himself chose to examine four witnesses in addition to his own oral evidence...the defendant has not produced anything on record by way of documentary evidence to substantiate his claim of being a tenant, lessee, or person in legal possession of the suit property....Identical chief examinations have been made by other witnesses and identical cross-examinations are made, but what appears that the defendant have not produced anything on record except oral evidence to substantiate this claim.  In the aforesaid circumstances, even if the trial court's non-discussion of the defendant's witnesses' evidence is acknowledged, the said witnesses have not produced any documentary evidence of their own, and their oral evidence does not establish the defendant's claim to legal or lawful possession". 

The trial court while ruling in favour of the plaintiff, directed the defendant to hand over vacant and peaceful possession of the suit property to the plaintiff within two months.

The trial court issued a perpetual injunction restraining the defendant from transferring, assigning, or creating any charge or obtaining any rent in respect of the suit property and directed the defendant to pay Rs. 5,000 per month as mesne profits from January 2008 till the date of recovery of possession.

The defendant was looking for a residence and upon his request and their "good relationship", the plaintiff gave the property to the defendant for two years, with the condition that the defendant would vacate the property whenever he obtained another residential property. However there was no rent agreement executed between the parties.

The parties however executed a license agreement for two years.  After expiry of two years defendant did not vacate the property and instead filed a suit against the plaintiff seeking an order of non-eviction.The court while refusing to decide on merits, said that the defendant may not be evicted without following the law.

Thereafter the plaintiff filed a suit to recover vacant and peaceful possession of the property along with mesne profits, which was decided in his favour. Against this the defendant moved the high court. 

The court partly allowed the appeal and modified the trial court order to the extent that the defendant shall be liable to pay Rs. 5000 per month as mesne profits to the plaintiff from the date of filing of the suit i.e., 23.12.2011 till the date the defendant hands over vacant and peaceful possession to the plaintiff.

Case title: SAWAISINH DEVISINGH CHAUHAN v/s  YASHWANTSINH MAHANSINH RATHOD

R/FIRST APPEAL NO. 1775 of 2017

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Citation: 2026 LiveLaw (Guj) 194