1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 458/2010 (Surendra Laxminarayan Jaiswal Versus Rajendra Laxminarayan Jaiswal) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.V. Bhide, counsel for the appellant. Shri Masood Sharif, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : DECEMBER 3 , 2010 . Heard. The appellant is the original defendant. A suit was filed by the respondent-plaintiff for eviction of the defendant from the suit property. According to the plaintiff, one Laxminarayan, the father of the plaintiff and the defendant, was the owner of the building of which the suit property is a part. It was the case of the plaintiff that in a family partition, the suit property fell to the share of the plaintiff. At the relevant time, the defendant, the real brother of the plaintiff was running a liquor shop in the suit premises and, hence, the plaintiff and the defendant entered into a Kabulipatra that the defendant would occupy the premises only for a period of two years by paying damages @ Rs.2,000/- per month and shall vacate the premises on the expiry of two years. This arrangement, according to the plaintiff, came into existence because the defendant was the real brother of the plaintiff and was running a liquor shop in the premises in question. Since the defendant did not vacate the suit premises after a period of two years as promised, the suit was instituted. 2 The defendant filed the written statement and stated that the plaintiff had got the partition-deed executed by exercising force and coercion and the defendant would challenge the same in appropriate proceedings. The defendant admitted that he had signed the Kabulipatra but, pleaded that Kabulipatra was got executed by the plaintiff from the defendant due to the plaintiffs dominating position over the family members. It was pleaded by the defendants that he had not executed the Kabulipatra willingly but, the same was prepared by the plaintiff and the signature of the defendant was obtained on the same to avoid the creation of tenancy. The defendant pleaded that the defendant was a tenant in the suit property and the suit filed by the plaintiff was, therefore, liable to be dismissed. Both the Courts, on a proper appreciation of the evidence on record, held that the plaintiff was the owner of the suit property and the defendant had been unsuccessful in proving that he was a tenant in the suit premises and was paying a monthly rent of Rs.2,000/- per month. The Courts held that the defendant had further been unsuccessful in proving that the Kabulipatra was got executed from the defendant by the plaintiff due to his dominating position and it was not to be acted upon. The trial and the first appellate Court held that the plaintiff was entitled to a decree of eviction and possession. I have perused the contents of the Kabulipatra. They do not show that the defendant is the tenant in the suit property, as rightly held by both the Courts. It is also not necessary to consider whether the defendant was a licensee in the suit premises as it was not the case of the defendant in the 3 written statement that he was a licensee in the suit premises. The Courts have recorded a concurrent finding of fact that the Kabulipatra was not executed by the defendant in view of the dominating position of the plaintiff over the defendant or the other family members. In the peculiar facts of the case, it is clear that the plaintiff had only permitted the defendant, his real brother, to occupy the suit premises for a period of two years because he was running a country liquor shop in the same and on his undertaking that he would vacate the premises within a period of two years. In the facts of the case, neither the provisions of the Maharashtra Rent control Act nor the judgment reported in (1989) 3 SCC 574 (Capt. B.V. D'souza Versus Antonio Fausto Fernandes) can be applied to the facts of the case. The Courts also did not commit any error in relying on the unregistered Kabulipatra as the provisions of Section 55(1) of the Maharashtra Rent Control Act or for that matter, any other provisions of the Maharashtra Rent control Act did not apply to the facts of the case. Since no substantial question of law arises for consideration in this appeal, the same is dismissed with no order as to costs. JUDGE APTE