1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.55 OF 2006 WITH CA NO.764 OF 2006. Vishwanath Jagannath Chaudhari - APPELLANT VERSUS Bansi Keshav Bhavasar (deceased) through L.Rs. Madhusudan Bansilal Dhuge & Ors. - RESPONDENTS ***** Mr.SP Wani Advocate h/for Mr.SU Chaudhari,Adv. for appellant; ----- CORAM : K.U.CHANDIWAL, J. DATE : 28th April, 2010. PER COURT : 1) Heard. 2) Decree to remove the defendant and to pay damages of Rs.10,800/- for wrongful use and occupation, passed by learned Civil Judge, Junior Division, Nandurbar, dated 7.2.1997, was assailed before the first Appellate Court. The first Appellate Court, by its judgment and order dated 16.08.2005, passed in Regular Civil Appeal No. 2 19/1997, did not disturb the decree recorded in RCS No.3/1995, consequently, the same is questioned by the defendant in the Second Appeal. 3) The learned Counsel representing the appellant/defendant submits, a substantial question of law in the matter is, - since the defendant/appellant was a tenant of first floor, if he remained in occupation thereof, the Civil Court has no jurisdiction, as the dispute should have been raised before a Competent authority under the Rent Control Act, having rent control, eviction jurisdiction. The second point, according to the learned Counsel is, when the notice was issued by the landlord/plaintiff on 11.4.1994, it was replied by the defendant/appellant on 6.5.1994, informing that there is already a lock of the plaintiff, there could not be a question of fixing the damages against the defendant/appellant. 4) The theory, as propagated all throughout and accepted by the defendant is, having suffered the first floor due to severe damages, the plaintiff/landlord allowed him to occupy ground floor @ Rs.150/-. There is a little controversy as to whether the appellant/defendant forcefully occupied the ground floor or it was with mutual understanding. However, this Court is not called 3 upon to deal with that aspect. The crux of the controversy revolves to plaintiff/landlord asserting that the defendant, in spite of having terminated his tenancy for first floor, unauthorizedly, put his lock thereby did not allow the landlord to utilize the damaged portion of the premises and consequently, sought removal of the trespassing and also the damages. 5) The notice reply given by the defendant/appellant to the notice of demand, illustrate that the defendant/appellant has come with a case that the damage to the first floor was deliberate, with oblique motive to get the premises/first floor vacated. The defendant asserts, no sooner he vacated, he was inducted in the ground floor in January 1992. The first floor is not in his occupation and it is in occupation of the landlord/plaintiff. He denied his liability to make the remittance of damages. 6) The evidence adduced by the plaintiff illustrate, notices were sent, postman was examined, there were locks on the upper floor put up by the defendant/appellant. A reasonable and logical conclusion, drawn by both the courts that it was unauthorized control of the defendant/appellant, cannot be said to be perverse. Had the defendant's genuine intentions 4 not to have controversies with the plaintiff/landlord, he could have even in his reply dated 6th May, 1994, clarified that the locks, if any, at the first floor, are not belonging to him and the plaintiff/landlord is at liberty to break open the locks, as the appellant/defendant has no concern with it. However, the appellant/defendant did not come with clean hands either with reply or otherwise. He has setup a new theory of want of jurisdiction and also about the induction in the ground floor, which was not the question of controversy. On assessment, the Court of first instance justifiably held that the use and occupation of the defendant/appellant at the first floor was unauthorized and it was a deliberate attempt to cause loss to the landlord/plaintiff and the damages totaling Rs.10,800/-, in the set of facts, does not warrant to assess to be illegal or flowing from no record. The substantial question of law, as tried to be formulated by the learned counsel, will not subsist. Consequently, Second appeal lacks merit, it is dismissed with CA. No costs. (K.U.CHANDIWAL) JUDGE bdv/sa55.06