CRA. 984-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No. 984 OF 2010 Mr. Manilal Khimji Rathod @ Patel ...Applicant Vs. M/s. Walsingham House School ...Respondent *** Mr. Idris M. Vohra, for the Applicant. Mrs. Ranjana Parikh, for the Respondent. *** CORAM: V. M. KANADE J. DATE : MAY 5, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the applicant and the learned counsel appearing on behalf of the respondent. Applicant is the original defendant and respondent is the original plaintiff. For the sake of convenience, parties are referred to as the ‘plaintiff’ and the ‘defendant’. A suit was filed by the plaintiff for eviction of the defendant under Section 41 of the Presidency Small Cause Courts Act, on the ground that applicant was a former employee. He continued to be in occupation and therefore, after he retires from the CRA. 984-10 - 2 - service, he becomes a gratuitous licensee. The defendant filed his written- statement. In the written-statement it is contended that plaintiff had given the suit premises to the defendant by way of charity. It is also contended that there was a ‘Memorandum of Settlement’ which was executed between the Union and the plaintiff in respect of other employees. However, he is prevented from executing the said ‘Memorandum of Settlement’. The trial Court decreed the suit. The appeal preferred against the said judgment & decree was dismissed. It was contended by the learned counsel for the defendant that both the courts below erred in holding that plaintiff had established that defendant was a gratuitous licensee. It was submitted that burden of proof was wrongly put on the defendant, so far as the issue of allotment of the suit premises to the defendant, not by virtue of employment but by way of charity. The learned counsel for the defendant also submitted that suit was not maintainable in the Small Cause Courts. The learned counsel has invited my attention to the judgment of the trial Court as well as Appellate Court. 2. Both the courts below have held that plaintiff proved that suit premises were allotted to the defendant due to service and that he had continued to remain in the said premises, on account of premises CRA. 984-10 - 3 - granted by the plaintiff to use and occupy the said premises as the quarter for his residence. Both the courts below have also held that defendant was not in a position to prove that the premises were given to him by way of charity. Since a concurrent finding of fact has been recorded by both the courts below, it will not be possible for this Court to substitute its own view to the view taken by the lower courts. Moreover, so far as the issue of maintainability of suit is concerned, Full Bench of this Court has held that such a suit would be maintainable under Section 41 of the Presidency Small Cause Courts Act in the Small Cause Court. There is absolutely no substance in the submissions made by learned counsel for the application. Civil Revision Application is, therefore, dismissed. [ V. M. KANADE J.]