1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.3474 OF 2005 Gangasagar Sadasukh Tiwari .. Petitioner Versus Smt.Lalitaben Narayandas Khanna & Anr. .. Respondents Mr.Deepak S. Jadhav for petitioner CORAM : S.C.DHARMADHIKARI, J. DATE : 12th June 2009. P.C.: 1] This petition under Article 227 of the Constitution of India challenges the concurrent judgement and orders of the trial court and the lower appellate court in R.A.D. Suit No.1757 of 1987 and Appeal No.585 of 2001. 2] The petitioner is the original plaintiff who had instituted this suit against the respondents for a declaration that he is tenant in respect of the suit premises. 3] The only contention of Mr.Jadhav appearing for petitioner is that the courts below have committed an error in not relying upon the agreement, execution of which, has been admitted by the first respondent. He submits that the second respondent is the landlord of the premises whereas the first respondent is the original tenant. The first respondent inducted the petitioner as licensee under leave and license agreement and surrendered his tenancy rights. Consequently, the petitioner became a tenant of the suit premises. Reliance, therefore, on the document, signature on which has been admitted by the first respondent, was well founded. That document has been wrongfully excluded from the proceedings. Consequently, the orders under challenge suffer from error 2 apparent and clear perversity and deserve to be quashed and set aside. 4] It is not possible to accept this contention for more than one reason. The lower appellate court in the order under challenge has very clearly referred to the written statement of the first respondent in the suit. She denied that she entered into leave and licence agreement and declaration of surrender of tenancy rights. She also denied acceptance of any consideration. It is her case that the petitioner – original plaintiff in the suit forcibly entered the suit premises and tried to dispossess her. When he obtained an order of temporary injunction, he was not in possession. The lower appellate court has referred to this fact so also that the injunction order granted in favour of the petitioner came to be vacated. The lower appellate court has also adverted to the pleadings in the suit filed by the first respondent against the petitioner and the second respondent for declaration of her rights as a tenant. 5] While framing Point Nos. 1 and 2 and recording a finding in the negative on the same, the lower appellate court has adverted to not only the pleadings but the evidence. 6] In paras 14 and 15 of the judgement, the lower appellate court, entire materials have been referred including the contradiction in the version of the petitioner – plaintiff. It is clear to me that the evidence will have to be read as a whole. Merely relying upon the stray sentence in the deposition would not be fair, just and proper. More so, when the petitioner – plaintiff had stated that the respondent No.2 landlord supports him and would enter the witness box. Apart from the version of the petitioner, there is nothing on record which would indicate that the agreement of leave and licence was executed together with the surrender of tenancy. When all the allegations in the plaint were denied and the burden was clearly upon the petitioner – plaintiff and his version being inconsistent and contradictory, I do not see how the orders could be termed as vitiated by an error apparent or perverse. 3 7] For the reasons that have been indicated in the order of the lower appellate court and particularly in view of the finding on point Nos.1 and 2 , I am not in a position to accept the argument of Mr.Jadhav. 8] This being the only contention raised before me and finding that the document has not been wrongfully excluded from consideration, there is no reason to interfere with the concurrent orders under challenge. More so, because this is not a court which can re-appreciate and re-appraise the materials on record. In the result, petition fails and it is accordingly dismissed. (S.C.DHARMADHIKARI, J)