1 SA 114.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 114 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.A.S.Golegaonkar ,Advocate for the appellant. Mr.S.K.Kulkarni,Advocate for Resp. no. 1. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 28/03/2011 PER COURT : 1. This is Appeal by the original defendant. The present respondent had filed Suit for possession. The trial Court decreed the Suit. The defendant preferred Appeal. The lower appellate Court dismissed the Appeal confirming the Judgment and decree of possession passed by the trial Court. The defendant has assailed the said Judgment and decree in the present Second Appeal. 2. Mr. A.S.Golegaonkar, the learned counsel for the appellants strenuously contends that the property in question was an Inam land granted to 2 SA 114.2011 the present respondent. The Govt. has cancelled the Inam and the litigation between the Govt. and the respondent is pending. As such, when Inam itself is cancelled,the respondent can not get any right, title or interest to claim possession from the present appellants. This aspect has not been considered as these facts were not brought to the notice of the Court by the present respondent. The learned counsel further contends that in a decree passed in previous litigation bearing R.C.S. No. 259 of 1996, the Civil Court had prohibited the present respondent no. 1 from taking over possession without following due process of law. No notice prior to the filing of the Suit was issued and as such the plaintiff did not have cause of action to file the Suit. 3. Per contra, Mr. S.K.Kulkarni, the learned counsel for the respondent no. 1 submits that the appellants can not deny the title of the plaintiff in as much they are claiming their possession through the plaintiff. The filing of the Suit itself is sufficient compliance of due process of law and no notice is required to be issued. 4. With the assistance of the learned counsel, I have gone through the Judgments. 3 SA 114.2011 5. The Civil Court has already passed decree in R.C.S. No. 259 of 1996, thereby negativing the claim of the present appellants that they are the tenants over the suit property. The Civil Court categorically held that the appellants are in permissive possession of the suit property and they should not be dis-possessed without due process of law. The respondent no. 1 as such instituted the Suit for possession. There is no mandate that prior to the filing of the Suit, notices are to be issued. The intentions were made clear in the earlier litigation itself. 6. The dispute between the Govt. and the respondent no. 1 would not be relevant for the reason that it is the present respondent no. 1, who had inducted the present appellants in possession of the suit property having held that their possession is mere permissive possession through respondent no. 1, the respondent no. 1 has every right to seek possession dehors their dispute with the Govt. 7. In light of the above, the Second Appeal being sans substantial question of law, is dismissed however with no order as to costs. 8. In view of dismissal of Second Appeal, the 4 SA 114.2011 Civil Application does not survive and is dismissed. 9. At this stage, Mr. Golegaonkar, the learned counsel states that the appellants are carrying on their business in the suit premises since last 18 years. They would require some time to seek alternate accommodation and as such seeks one year time to vacate the suit premises. 10. Mr. S.K. Kulkarni, the learned counsel for respondent no. 1 opposes the said request. 11. However, taking into consideration the long standing possession of the appellants and that the appellants are carrying on business in the suit premises, I am inclined to grant six ( 6 ) months time to the appellants to vacate the suit premises on condition that the appellants shall file an undertaking in this Court within the period of two ( 2 ) weeks from today that they will vacate and hand over the suit premises to the respondent no. 1 on or before 30/9/2011 and that they will not create any third party interest nor change the nature of the suit property in whatsoever manner. [ S.V. GANGAPURWALA,J. ] KNP/SA 114.2011 5 SA 114.2011