: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.656 OF 2009 Sitaram Laxman Sakpal & Anr. .. Appellants V/s. Ramchandra Bhikaji Shringare .. Respondent ..... Mr. V.D. Surve for the appellants Mr. V.K. Damle for the respondent ..... CORAM : R.Y. GANOO, J. DATE : 3rd JULY, 2009. P.C. : 1. The appellants herein alleged that the respondent herein was a trespasser in respect of the suit premises and therefore the appellants instituted S.C.Suit No.4457 of 2006 in the City Civil Court, Bombay. Learned Judge of the City Civil Court by his judgment and decree dated 16 th March, 2009 dismissed the suit against which this first appeal is filed. I have heard learned advocates on both sides. In the plaint, there is a specific averment that the Vasant who is involved in the litigation had surrendered the premises in favour of the defendant whereas in the course of evidence, different stand was taken by the : 2 : plaintiff. If it was the stand of the appellants that Vasant had surrendered the premises in favour of the defendant, in the pleadings and if they wanted to take a different stand when the matter came up for trial, it was necessary for them to apply for proper amendment. That has not been done. There is a variance in the plaint and evidence. Hence, the evidence of the appellants that Vasant had not surrendered the premises in favour of the defendant but in favour of the appellants cannot be accepted. 2. In all two writings namely Exh. 6 and 7 are very important in so far as the decision of the matter is concerned. 3. Those writings are on record and the fact that these writings are executed by and between the parties is not disputed before this Court. Learned trial Judge after appreciating entire evidence came to the conclusion that for whatever events which have taken place, the defendant has the right in respect of suit premises and that is how the learned trial Judge declined to treat the respondent as purchaser and that is how the suit came to be dismissed. : 3 : 4. It was argued by learned advocate Mr. Surve that respondent should have examined their witness in order to make out his case however, that may not be accepted. It is well settled that the plaintiff will succeed on the material which he wants to place before the Court and if the case in that behalf is made out then only the burden may shift on the defendants. Here the plaintiff has not discharged the burden cast on him and hence he has failed. The learned trial Judge was justified in not treating the respondent as trespasser on the basis of evidence before him. 5. For the aforesaid reasons, no interference is required in the impugned judgment. Hence, the first appeal is required to be dismissed at the stage of admission. Hence, the order. ORDER . Appeal is dismissed with no order as to costs. . Civil Application No.2248 of 2009 is dismissed in view of dismissal of the first appeal with no order as to costs. (R.Y. Ganoo, J.)