1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.772 OF 2007 Alluddin Hasan Attar .. Appellant Versus Shantabai Raghunath Pise & Anr. .. Respondents WITH CIVIL REVISION APPLICATION NO.547 OF 2007 Alladdin Hasan Attar .. Appellant Versus Shantabai Raghunath Pise & Anr. .. Respondents Mr.Umesh Mankapure for appellant Mr.Manoj Kadam i/b. Ashok G. Chougule for respondens. CORAM : S.C.DHARMADHIKARI, J. DATE : 12th April 2010. P.C.: 1] Heard Mr.Mankapure for the appellant. 2] Perused the judgements of the trial court and lower appellate court. The appellant's suit was for declaration that he was a tenant, if not of any larger portion, then the area admeasuring 5 x 5 feet in the suit property 2 from where he was carrying on his business of photo framing. Respondent - defendant No.1 had acquired the property from one Vasudev Pise in execution of a decree of partition. It was the case of the appellant that he was the tenant of Vasudev and paying rent from month to month. The trial court accepted this case and decreed his suit to the extent of a declaration and permanent injunction restraining Shantabai (Respondent No.1) from dispossessing him except by due process of law. 3] Consequently, the counter claim of Shantabai was dismissed. Aggrieved by this dismissal, Shantabai preferred two appeals one challenging the decree in favour of the appellant and second challenging rejection of her counter claim. Both appeals having been allowed by the Lower Appellate Court and the Decree of the Trial Court is set aside. Hence, this second appeal. 4] Having perused these judgements and some other material on record, I am satisfied that no substantial question of law is raised in this second appeal. A finding of fact is recorded by the lower appellate court that the suit is collusive. That finding of fact is on the basis that the appellant has not examined his landlord Vasudev. Further, none of the 3 rent receipts which have been looked into by the trial court had been admitted in evidence in accordance with law. Such findings are essentially on facts and cannot be disturbed in a second appeal. 5] Mr.Mankapure would urge that it is not disputed that the appellant was in possession of an area admeasuring 5 x 5 feet carrying on his photo frame business and paying rent regularly to Vasudev. When with his assistance I perused the rent receipts and brought to his notice that the rent receipts do not bear signature of Vasudev. Appellant’s explanation was that they bear signature of Vasudev’s son. Be that as it may, neither Vasudev nor his son were examined. Therefore, from the production of rent receipts, claim of tenancy and that too through Vasudev is not proved, as rightly held by the lower appellate court. Therefore, the inference drawn that the last piece of land in possession of Vasudev is tried to be retained by him in collusion with the appellant cannot be said to be perverse soas to call for interference under section 100 of CPC. Second appeal is, therefore, dismissed. The civil application, if any, does not survive and the same is dismissed accordingly. 6] The CRA is directed against an order passed by the trial court 4 dated 6th July 2007 and of the Lower Appellate Court dated 11th July 2007. This CRA challenges the judgement and order in the counter claim. The counter claim was decreed in favour of Shantabai. That was in the same suit which was instituted by the appellant in the second appeal. Therefore, the reasons which pursuade me not to entertain the second appeal, must hold good also for CRA. It also accordingly fails and is dismissed. 7] At this stage, Mr.Mankapure prays that the appellant be granted longer time to vacate the premises. This request is opposed by the decree holder. 8] Considering that the appellant claims to be in possession from 1990 and carrying on his business of photo frame so also bearing in mind the location of the premises, in my view, it would be reasonable to grant time to vacate till 31st December 2011, provided the appellant files an undertaking in this court within a period of three weeks from the date of receipt of copy of this order, to the effect that he will not part with possession or alienate the suit premises nor will be create any third party rights in respect of the same. The appellant shall continue to pay the rent 5 as he has been paying earlier. The appellant shall undertake to vacate the premises on or before 31st December 2011 without fail. In default, the respondent is entitled to adopt such measures as are permissible in law to evict the appellant from the premises. (S.C.DHARMADHIKARI, J)