(1) SA. 448.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 448 OF 2009 Mohd. Gaus S/o Abdul Gafoor, Age : 47 years, Occu.: Service, R/o : H.No. 5-2-97/82, Mohalla Moghulpura, Kohinooor Colony, Aurangabad .. Appellant VERSUS Shaikh Abdul Shakoor S/o Shaikh Abdul Gafoor, Age : 54 years, Occu.: Service, R/o : H.No.5-2-97/82, Mohalla Moghulpura, Kohinoor Colony, Aurangabad .. Respondent WITH CIVIL APPLICATION NO. 3489 OF 2008 IN SECOND APPEAL NO. 448 OF 2009 Mohd. Gaus S/o Abdul Gafoor .. Applicant VERSUS Shaikh Abdul Shakoor S/o Shaikh Abdul Gafoor .. Respondent Mr.S.S. Nirkhee, Advocate for the appellant/applicant Mr.D.S. Kulkarni, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 14TH SEPTEMBER, 2009 ORAL ORDER:- 1] The appellant’s Advocate sought admission of this (2) SA. 448.2009 appeal, mainly on the ground that the learned Judge of the first appellate Court did not frame "point for consideration' while writing the judgment. He also placed reliance on the judgment of the Division Bench of this Court in the case of Khatunbi Wd/o Mohammad Sayeed and ors. V. Aminabai w/o Mohammad Sabir reported in 2006(6) Mh.L.J. 759. But I am not inclined to admit the appeal on this ground. 2] The respondent filed the suit for eviction of the appellant from his house. The appellant and the respondent are real brothers. It is the case of the respondent that he has purchased the plot and constructed the house on it, all by himself without taking help from any of the family members including his father. He said the appellant being his younger brother, stayed with him in this house for last many years. He said that he had asked the appellant to leave the house and make his own arrangements elsewhere. When he refused to do so, he brought this action. The appellant contended that though, the plot of land on which the suit house is constructed, stands in the name of the respondent alone, it was their father’s amount which was utilised for purchasing of the plot. He further contended that he, his father and the respondent all contributed for the cost of construction of the house. He therefore, said that he has ownership to the property. He also feebly contended that since he is occupying exclusively part of the house, he had become owner by adverse possession. (3) SA. 448.2009 3] The learned Judge of the trial Court framed issues based on this dispute and recorded the evidence of both the parties. The appellant examined number of witnesses but failed to convince the learned Judge of the trial Court. It was held that the respondent proved his title and that he allowed the appellant to occupy part of the house as gratuitous licensee. The appellant then filed first appeal, but the learned Judge of the appellate Court, recorded point for consideration as under:- . Whether the appellant could prove that the learned Judge of the trial Court has committed an error in decreeing the suit? 4] Indeed, the learned Judge of the first appellate Court had committed error in framing the above mentioned point for consideration. He should have framed points for consideration such as whether the appellant could prove his proprietary concern to the suit property? and in the alternative whether he has proved his title by adverse possession? 5] However, though the mistake as said above is committed by the learned Judge of the first appellate Court, he discussed the contentious issues between the parties quite meticulously in paragraph no.10 to 20 of the judgment. He rightly came to a conclusion and recorded a finding that the respondent had proved title to the suit property and that the appellant had failed to do so. He also recorded a finding that the respondent had proved that the appellant was his licensee. So, though the point for consideration is not quite satisfactory and not in consonance with the provisions of Order 41 Rule 31 (4) SA. 448.2009 of the Code of Civil Procedure and section 96 of the Code of Civil Procedure, what is important about this judgment is that the learned Judge applied his mind to the rival contentions quite meticulously and arrived at the right conclusions. 6] I think in the facts of the case as well as in view of the discussion of facts in the impugned judgment, the ratio of the judgment referred to above, would not apply. The Second Appeal, should therefore fail. The Second Appeal stands dismissed. 7] In view of the dismissal of the Second Appeal no. 448 of 2009, Civil Application no. 3489 of 2008, seeking stay does not survive and the same stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp