1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 377 OF 2008 Madhukar Raghunath Jagushte........Appellant versus Manudhar Manohar Lad........ Respondents. Mr. S. B. Shetty adv. for the Appellant Mr. Bakul Bhosale adv. for the respondents CORAM: A. P. DESHPANDE, J. DATED : 3rd APRIL, 2009. P.C.: 1. The present appellant is the original plaintiff who instituted a suit for recovery of possession of a wooden structure referred to as Kokha. It is the case of the appellant/plaintiff that in the year 1989 super structure viz. the wooden structure was leased out to the respondent on a monthly rent of Rs. 100/-. It is further the case of the appellant that the defendant paid rent till the year 1992. However from the year 1993 he stopped paying rent and thus a suit came to be instituted for recovery of possession of the structure and the arrears of rent. The trial court dismissed the suit by accepting the contention of the defendant that in the year 1993 itself the wooden structure/kokha was returned to the plaintiff. On appreciation of oral evidence 2 and having regard to the conduct of the plaintiff, in not demanding the arrears of rent or possession, over a period of more than eight years, the courts below have held that the plaintiff has failed to establish that the wooden structure wherein the defendant is presently carrying on business belongs to the plaintiff. The defendant' s case has been accepted that in the year 1993 the wooden structure was returned by him to the plaintiff and he constructed a wooden structure wherein he is carrying on his business. The controversy is in realm of appreciation of evidence on record and two courts having concurrently found on fact against the present appellant, no interference in the second appeal is called for. No substantial question of law emerges for consideration. The learned counsel for the appellant has tried to contend that the courts below have placed incorrect burden of proof on the appellant to establish that the present structure is the same that was leased out by the appellant to the respodent. In this fact situation the burden would be on the plaintiff himself to establish that the defendant continues to carry on the business in the wooden structure of the plaintiff more so when the defendant raises a dispute in that regard by contending that he had returned the structure in 1993. In that view of the matter there being no merit in the appeal, the same is summarily dismissed. 3 (A. P. DESHPANDE, J.)