1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.44 OF 2010 WITH CIVIL APPLICATION NO.115 OF 2010 Shri Jhoori Jokhari Yadav )..Appellant Vs. Ramsabad Ropan Yadav )..Respondent ---- Mr. V. S. Kapse for the appellant. ---- Coram : R.S.MOHITE,J Date : 1st February, 2010 PC 1 This is a Second Appeal filed by the original defendant against concurrent findings and decrees of two lower Courts. Both the Courts have decreed the plaintiff’s suit for possession. It was a plaintiff’s case that he was a tenant of the defendant and was paying him rent which was evidenced by the rent receipts which have been issued by the defendant to him. It was his case that the defendant was the landlord, took back the possession under the guise of renovation and after renovation was over, he did not put the plaintiff back in possession. The plaintiff led his own evidence and the evidence of his witnesses in support of his case. The defendant filed his examination-in-chief by way of an affidavit but for several months did not make himself available for cross-examination. In these circumstances, the plaintiff’s suit was decreed. The appellate Court has confirmed the decree. It was contended that the Appeal Court ought to have remanded the matter to 2 enable the plaintiff to cross-examine the defendant. I find that this is a case where the defendant in is examination-in-chief has given no explanation as to how he was taking rent. His acceptance of rent itself raises a strong presumption in favour of the plaintiff that the premises of which plaintiff was a tenant was within the premises of the ownership of the defendant-landlord. I am also not inclined to remand the matter as the defendant is responsible for his own action for not making himself available for cross-examination. It cannot be forgotten that the suit was for possession and the defendant who was sitting over the premises chose not to make himself available for a long period of time and thus prolonged the hearing of the suit. The disputed questions are only questions of facts. There is no substantial question of law involved in this Appeal. Second Appeal is therefore, summarily dismissed. CIVIL APPLICATION NO.115 OF 2010 1 As the Second Appeal is dismissed, Civil Application does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 3 4