ndm 1 7-sa.437.06 anr.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 437 OF 2006 WITH CIVIL APPLICATION NO. 1209 OF 2004 IN SECOND APPEAL NO. 437 OF 2006 Rajaram Naikaba Gavali. ... APPELLANT Vs. Sadashiv Ganpati Kabade (deceased) through legal heirs. ... RESPONDENTS -------------- Ms. Leena Patil i/b Mr. P.M. Pradhan for Appellant. Mr. Nitin Patil i/b Mr. Uday P. Warunjikar for Respondent Nos. 1A and 1B. -------------- CORAM : C.L. PANGARKAR, J. DATE : 12 th JANUARY, 2010. P.C. 1 This Second Appeal is preferred by the original defendant being aggrieved by the findings recorded by the Court below. 2 The Respondent – plaintiff instituted a suit for possession and damages. It was the case of the Respondent – plaintiff that he had taken the suit premises on leave from one Sanmukh and he was running ndm 2 7-sa.437.06 anr.sxw the hotel. It is his case that after the death of the father of the defendant, the Defendant raised the dispute with the plaintiff and the matter went before the Police. During 145 proceeding, an order was passed and the plaintiff was dispossessed. The Plaintiff therefore, now claims possession and damages. The suit was resisted by the defendant – Appellant on the ground that the plaintiff was not the owner of the hotel and infact it was the father of the defendant, who was the owner of the property. 3 The learned Judge of the trial Court after consideration of the evidence led before him found that plaintiff was the owner of the hotel and he was entitled to run the same. He also found that the plaintiff was entitled to damages at the rate of Rs.100/- per day. Holding so, he decreed the suit. The present Appellant – defendant preferred an appeal before the District Judge. The Additional District Judge, who decided the appeal concurred with the findings recorded by the trial Court and dismissed the appeal. 4 I have heard learned counsel for the Appellant and the Respondents. The learned Judge of the trial Court has found as a fact that the plaintiff was the owner of the hotel and he was running the same. He has considered the evidence rendered before him. Right from 1959, ndm 3 7-sa.437.06 anr.sxw the Shop Act Licence was in favour of the plaintiff. The plaintiff has examined the food inspector, the shop inspector and other authorities, which show that the shop was recorded in the name of the plaintiff and plaintiff was in possession thereof. This evidence has been considered by the Appellate Court also. 5 The learned counsel for the Appellant contended that the Courts below have not properly appreciated the evidence because it did not consider the statement of the plaintiff, which he had given before Excise Officer. 6 The said statement, according to the learned counsel goes to show that the defendant was the owner of the hotel. It appears that the learned Judge of the First Appellate Court has considered this aspect and has observed that the said statement is a very weak piece of evidence and cannot relied upon. 7 Next ground that was urged was that a decree has been passed in a suit instituted by the landlord against the present plaintiff – Respondent. He submits that therefore, present plaintiff – Respondent cannot himself institute a suit for possession. The submission cannot be accepted. The plaintiff - Respondent has not yet been evicted from the ndm 4 7-sa.437.06 anr.sxw premises and until he is so evicted under that decree, he has every right to claim the possession from the defendant. No other question was urged before me. Both questions raised are infact questions of fact. They have been concurrently answered against the Appellant. There is no substantial question of law involved in the appeal. The Appeal is dismissed in limine. 8 In view of the dismissal of the Second Appeal, Civil Application does not survives and the same is also disposed of. [ C.L. PANGARKAR, J ]