: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.233 OF 2009 Najmun Hussain Shaikh & Anr. ... Appellants V/s. Rajiya Sherikhan Shaikh & Anr. ... Respondents Mr.G.S. Godbole i/b A.B. Tajane for Appellants Mr.S.G. Deshmukh for Respondent Nos.1 and 2 CORAM: SMT.NISHITA MHATRE, J. DATED: 20TH AUGUST, 2009 P.C.: 1. The Second Appeal has been filed by the appellant contending that the judgment and order of the appellate Court in Civil Application No.342 of 2007 is required to be set aside. According to the leaned advocate for the appellant, a substantial question of law arises in the present appeal, namely, whether the appellate Court had the jurisdiction to decide that the defendant was a gratuitous licencee in view of the provisions of the Bombay Provincial Small Cause Courts Act. According to the learned advocate Section 26 of that Act is parimateria with the provisions of section 41 of the Presidency Small Cause Courts Act which has been interpreted by the Full Bench of this Court in the case of Prabhudas D. Kotecha & Anr. v/s. Smt.Manharbala Jeram Damodar & Ors., 2007(5) Mh.L.J. 341. It is submitted that such a finding could only have been arrived at by the Small Causes : 2 : Court and not by the Civil Court. 2. A perusal of the plaint indicates that no declaration was sought by the plaintiff nor eviction of the defendants on the ground that the defendants were a gratuitous licencees. Therefore this submission of the learned Counsel cannot be accepted. The plaint proceeds on the footing that the plaintiffs had inducted the defendants into their premises and since the plaintiffs were not literate, a deed for a power of attorney had been executed by them in favour of the defendants in order that the defendants could take care of the property. It is further stated in the plaint that on the basis of this power of attorney which admittedly was executed by the plaintiffs, the defendants fradulently obtained their signatures on an agreement of sale. The plaintiffs, therefore sought a declaration from the civil Court to the effect that the agreement of sale was required to be cancelled and the plaintiff ought to be handed over possession of the suit property. They have also sought a declaration that the defendants were tresspassers. An injunction was also prayed for, restraining the Defendants from creating any 3rd party rights. 3. In view of the pleadings before the Court, in my opinion, merely because the appellate Court has chosen to declare that the plaintiffs had proved that the defendants were permitted to reside in the suit property as a gratuitous licencees it would not mean that fact was in issue. It was not the plaintiffs’ case at any point of time that they sought a declaration that the defendants were gratuitous licencees and therefore they should be evicted. The plaintiffs have instead contended that the defendants were trespassers. They also sought an order for cancellation of the agreement of sale in view of the fact that it had been obtained fradulently by the : 3 : defendants. Thus, in view of these pleadings, in my opinion, the question of considering whether the defendants were gratuitous licencees did not arise. 4. As regards the finding of the appellate Court that the plaintiffs had proved that the documents viz., agreement of sale, cash receipt and other documents were false and bogus and fabricated by the defendants. The appellate Court has found after considering the evidence on record that the plaintiffs had been made to execute false and bogus documents inasmuch as they were not aware of the contents of the documents which they signed. Significantly, the defendant has not cross-examined the plaintiffs who had filed an affidavit in examination in chief. Therefore, it must be accepted that the statements made by her in her affidavit are true. The appellate Court has considered these statements and has believed them. In these circumstances, I see no reason to interfere. 5. Second Appeal dismissed. 6. An application is made on behalf of the appellant to stay the decree for six weeks. Stay granted. 7. In view of the dismissal of the Appeal, Civil application No.841 of 2009 is also dismissed.