IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL (St.) NO. 25792 OF 2008 WITH CIVIL APPLICATION NO. 347 OF 2009. Vivek Shantaram Dhuri.... ..... .... Appellant. V/s Rakesh Rajendrakumar Agarwal & Anr. .. ...Respondents. Mr.G.S. Godbole i/by Ms.Pallavi N. Dabholkar, Adv. For the appellant. Mr.P.K.Dhakephalkar, Sr. Counsel i/by Mr.S.P.Munghate, Adv. For respondent No.1. CORAM: A.P.DESHPANDE, J. 10th FEBRUARY, 2009. PC: The present appellant is the original defendant No.2 against whom a decree for possession has been passed by the Court below. Aggrieved thereby this appeal has been filed. The respondent No.1/plaintiff instituted a suit by pleading that he has purchased gala Nos.4, 5, 6 and 7 situated on the ground floor under a registered agreement of sale dated 1.9.05. Under the said registered agreement of sale the plaintiff claims to have paid sum of Rs. 4 lacs by cheque to the respondent No.2/defendant No.1. The Vendor has admitted the receipt of the amount of consideration so also execution of the agreement. In other words, the vendor has conceded to the claim made by the plaintiff. Per contra the appellant No.1 claims that he 1 had purchased the suit galas from respondent No.1 herein in the year 1992 and has paid about 90% amount of consideration. There is absolutely nothing on record to indicate that any payment was made by the appellant to respondent No.2 and/or that any agreement in writing was entered into. The trial court on appreciation of evidence has recorded a finding about absence of any agreement whatsoever between the appellant and respondent No.2 and handing over of possession of the suit galas in favour of present appellantunder the alleged agreement. The said finding is correct. Learned counsel for the appellant has raised a contention that the suit itself is not maintainable as the same is based on derivative title, more so having been filed without impleading the respondent No.2 (Vendor) as plaintiff in the suit. In the first place this contention was not raised before the trial Court and no issue in that regard as such was framed. In the second place the said submission is misconceived and not tenable in view of the fact that respondent No.1/plaintiff has purchased the property under registered agreement of sale which is not disputed by the vendor and thus the plaintiff would stand in the shoes of the vendor and would be clothed with all the rights that the vendor had in the property sold in favour of the plaintiff. The suit in question is filed on the basis of title. The appellant/defendant No.2 ha tried to set up a case of purchase of the suit galas from the respondent No.2 by claiming that about 90% of the consideration was paid. There are no details in regard to so called agreement and 2 payment of consideration furnished by defendant No.2 The alleged payment of 90% of the amount is not evidenced by any document whatsoever. Taking over all view of the matter and having regard to the preponderance of the probabilities the court below has rightly held that defendant No.2 has no right to continue in possession of the suit property. According to the plaintiff so also defendant No.1 possession of defendant No.2 was permissive possession and despite demand made for possession as the defendant No.2 did not vacate the premises, the plaintiff was constrained to bring a suit. The appreciation of evidence by the trial court is appropriate and does not call for any interference whatsoever in the present first appeal. 2. The next submission made by the learned counsel for the appellant is that the plaintiff has purchased the suit property from the defendant no.1 as proprietor of Trimurti Center whereas according to the defendant No.2/appellant Trimurti Center is a partnership firm of which there are three partners including the respondent No.2 and hence execution of the agreement by one of the partners by styling himself as proprietor of the Trimurti Center does not vest the plaintiff with title to the property. What is relevant to note is that it is the case of the plaintiff that defendant No.1 is the proprietor and the plaintiff has purchased the suit galas from him. It is also brought on record that from defendant No.1 the defendant No.2 himself has purchased gala Nos.1, 2 and 3 thereby tacitly admitting the title of defendant No.2 to the building in question. It was case of the defendant No.2 3 that there existed a partnership firm. However there is categorical admission given by defendant No.2 in his cross examination that no documentary evidence whatsoever is placed on record to indicate that the suit property belongs to partnership firm and not defendant No.1 who is the proprietor. The appellant has not placed on record the agreement of sale/sale deed in regard to gala Nos. 1, 2 and 3 which could have demonstrated the ownership of the true owner. As the appellant has not produced the said document a presumption can be drawn that had he produced the same it would have gone against him. There is absolutely no merit in this contention as well and the same stands rejected. There being no merit in the appeal same stands summarily dismissed. In view of the disposal of the First Appeal, Civil Application No. 347 of 2009 does not survive and the same also stands disposed of. 3. At this stage learned counsel for the appellant seeks stay of this order for a period of eight weeks. Learned senior counsel for respondent No.1 does not oppose the same but submits that the same should be subject to an undertaking. In the result though appeal is dismissed the decree for possession shall not be executed for a period of eight weeks subject to appellant filing an undertaking in this Court within a period of four weeks from today that he shall not create any third party interest in the suit property. In all fairness learned counsel for the appellant also agrees to furnish an undertaking as demanded by learned senior counsel for respondent No.1 that in the event of the 4 appellant failing before the Apex Court the possession of the suit property would be handed over to the respondent No.1/plaintiff within such time as may be determined by the Apex Court. 10.2.2009. 5