1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.151 OF 2009. Ghanshyam Premchand Kanjwani ..vs.. Indrapal Nanumal Makhijani -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==- C ORAM : C.L.PANGARKAR, J. DATED : 7th September, 2009. 1. Heard Mr.M.P.Lala, learned counsel for the appellant and Mr.R.S.Parsodkar, learned counsel for the respondent. 2. This second appeal is preferred by the original plaintiff. The plaintiff contended that the defendant is his relative. He came to Nagpur and in order to accommodate him, he inducted him in the suit premises as a licensee. It was also the contention of the plaintiff that he was already running the business in the name and style ‘Ghanshyam Premchand’ and the defendant was permitted to continue the said business further. It is the contention of the plaintiff that the plaintiff does not want to continue the defendant as licensee he, therefore, instituted a suit for ejectment. 3. The defendant denied all the allegations as were 2 made in the plaint and contended that he was a tenant of the plaintiff. He also contended that initially rent was Rs.100/- per month which came to be increased subsequently to Rs.200/- per month and dispute arose only when plaintiff started demanding Rs.2000/- per month as a rent. 4. The learned judge of the trial court found favour with the plaintiff's contention and he held that the occupation of the defendant was that of the licensee and he decreed the suit. 5. The tenant/defendant preferred an appeal before the District Judge. The District Judge allowed the appeal. He found that the occupation of the defendant/appellant was that of the tenant and not that of the licensee since, according to him, the plaintiff failed to establish the facts of defendant being a licensee. 6. Shri Lala, learned counsel for the appellant, submits before me that the evidence has not been properly appreciated by the first appellate court. According to him, there was enough evidence to suggest that the occupation of the defendant was that of the licensee. 7. After having gone through the judgment of the first appellate court, I find that the first appellate court 3 has found as fact that the plaintiff/landlord has failed to show that he had handed over a running business to the tenant/respondent. He also finds that no Shop Act license for running the business was produced by the plaintiff to show that the running business was handed over to defendant/tenant. He also found that on the other hand, the defendant had placed on record a Shop Act license to suggest that the said shop was being run by him since last many years. I find the learned judge of the first appellate court has rightly appreciated this evidence and there is no perversity in the findings. 8. Mr.Lala, learned counsel for the appellant, then invited my attention to the fact that the defendant did not state before the criminal court that he was the tenant, when his statement under Section 313 of Cr.P.C. was recorded. The said statement has been ignored by the first appellate court. I find the said statement is of no help because there was no question before criminal court as to whether the occupation of the appellant was that of a tenant or a licensee. The learned judge of the first appellate court has rightly held that the appellant/plaintiff has failed to produce before the court any document such as statement of accounts to show that running business was handed over to the respondent. If the appellant/plaintiff had failed to establish that he had a running business which was handed over, it must be held that he has in fact failed on all fores. The learned judge of the first appellate 4 court has rightly appreciated the evidence. There is no perversity in the same and as a fact he has found that the occupation of the defendant is that of the tenant. 9. It was rightly contended by Mr.Parsodkar, learned counsel for the respondent, that had there been a licensee, the plaintiff would not have continued the respondent for a period of twenty years to occupy the same gratuitously. I find much force in the contention of Mr.Parsodkar and I do not, therefore, see any substance in the second appeal. No substantial question of law is involved in the matter. The appeal is dismissed in limine. JUDGE. chute