1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.1210 OF 2005 WITH CIVIL APPLICATION NO.1678 OF 2005 Shri Inusmiya Abdul Rehiman Janjirkar & Ors. ...Appellants. v. Shri Abdulla Kasim Sange Since Deceased through his heirs 1/1 Maimuna Abdulla Sange & Ors. ...Respondents. Mr.Tejpal S. Ingale, adv. For the Appellants. CORAM : J.H. BHATIA, J. DATED : 25th August , 2009 P.C. 1 Heard the learned counsel for the appellants, who are the original defendants. To state in brief, the suit property bearing survey no. 24 Hissa No.0 admeasuring 2 acres 18 gunthas situated at village Ranavali Taluka: Shrivardhan was admittedly owned by one Kasim Sange. Kasim Sange died in 1963. His two sons, namely, Abdulla and Gafur filed regular civil suit no.74 of 1993 against the defendants, who are the present appellants, for possession of the suit land. According to them in 1984 defendants had forcibly taken possession of the land in their absence because they were living in South Africa. One Rukiya was daughter of Kasim Sange and she was wife of the defendant no.1 Inus. 2 She died in the year 1960. Defendants contended that they were cultivating the land since prior to 1957-58, that Kasim Sange had given suit property to his daughter Rukiya either as her share or as gift and, therefore, she had become owner of the property. In paragraph 8 of the written statement, it was contended that in 1963 after death of father-in- law, defendant no.1 had made an application to commence tenancy proceedings to declare him as tenant over the suit land but when he found that name of his wife was recorded as owner, he withdrew that application. Defendants contended that after death of Rukiya, being her legal heirs, they are in possession as owners of the property. 2 The trial Court rejected the contention of the defendants about the gift made by Kasim Sange to his daughter Rukiya and the suit came to be decreed. The defendants preferred Regular Civil Appeal No. 10 of 1999. That appeal was also dismissed. Hence, the Second Appeal. 3 Thus, there is concurrent finding of the fact that the defendants had failed to prove that Kasim Sange had given the suit property to his daughter Rukiya as gift. There was never any dispute about the title of Kasim Sange and after his death, of his sons. Therefore, both the Courts below concurred that the plaintiffs, being owners of the property, are entitled to take back possession from the defendants. 3 During the arguments before this Court, the learned counsel for the defendants/appellants contended that defendant no.1 was a tenant over the suit property since 1946-47. However, there is no pleading to that effect. As noted above in paragraph 8 of the written statement, it was only contended that for the first time in 1963 after the death of father-in- law, defendant no.1 moved the tenancy authorities to record his name as tenant but that application was also withdrawn and thus, there is no record about his tenancy over the suit land. Further question of tenancy was never an issue before the Courts below though some documents were filed to show his possession, therefore, that plea can not be raised for the first time in Second Appeal particularly when there was no pleading in the written statement. 4 Taking into consideration the facts and the relevant findings of the Courts below, I do not find any substantial questions of law involved in the present appeal. 5 At this stage, the learned counsel for the defendants/appellants states that Rukiya could also claim share in the property of her father as one of the legal heirs and after death of Rukiya, her legal heirs can claim her share. Even if that be so, that question can not be decided in this Second Appeal. 4 6 Therefore, this appeal stands dismissed. 7 As the appeal itself is disposed off , Civil Application No. 1678 of 2005 for stay does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)