1 S.A. 651/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 651/2011 Sayyad Choutu Sayyad, Age : 60 years, Occu. Business, R/o 1, In front of New Court, A/P/T Shrirampur, District Ahmednagar. Appellant. (Ori. defendant) Versus 1 Smt. Husenbi Ismail Shaikh (Kureshi), Age : 70 years, Occu. Nil. 2 Sau. Khurshid Chand Shaikh (Kureshi), Age : 35 years, Occu. Household, Both R/o Ward No.1, in front of New Court, A/P/T Shrirampur, District Ahmednagar. ...Respondents (Ori. plaintiffs) ..... Shri V.N. Damle h/f Mr. S.V. Shinde, Advocate for appellant. ..... CORAM : S.S. SHINDE, J. DATED : 7th December, 2011. ORAL JUDGMENT: 1. Heard ld. counsel appearing for the appellant. Ld. counsel for the appellant submits that earlier civil suit No. 153/1995 was filed by the appellant herein. The said suit came to be partly decreed. The defendant who is appellant herein is restrained perpetually from obstructing plaintiffs’ possession over the suit premises. However, the prayer of the plaintiffs i.e. appellant herein in respect of perpetual injunction restraining the defendants from obstructing water supply and preventing plaintiffs from taking water from water tap belonging to the defendant, was rejected. 2 S.A. 651/2011 2. According to the learned counsel appearing for the appellant, against said judgment and order, the respondents herein who are original defendants in said suit, did not file any appeal. Therefore, injunction operating against the respondents herein in the said suit is continued till date. The ld. counsel further submits that the lower appellate court failed to appreciate aforesaid position in law, thereby directing the appellant herein i.e. original defendant to deliver vacant possession of the suit property to the plaintiffs. The ld. counsel would submit that merely because there is no record in municipal counsel from 1990, to show the possession of the appellant / defendant, that itself can not be ground to allow appeal filed by the original plaintiff. In fact, outcome of R.C.S. No. 153/1995, order of injunction operating therein is very much in his favour and therefore on that ground alone, the lower appellate court should have rejected the appeal filed by respondents herein / plaintiffs. Ld. counsel invited my attention to the grounds taken in the second appeal and in particular ground no.4, 6 and 8 which reads thus - “(IV) It ought to have been seen that the appellant has been in continuous peaceful possession from 1979 onwards i.e. even before the appellant became the owner. VI) It ought to have been seen that the decree of injunction passed against the present plaintiffs / respondents has not been challenged by them and thereby the said injunction has now achieved finality. VIII) It ought to have been seen that in view of the decree of injunction obtained by the present appellant against respondents / plaintiffs, the present suit filed by respondents / plaintiffs when injunction was running against them, was not at all maintainable not only on the ground of res judicata but also on the ground of estoppal.” 3 S.A. 651/2011 and also in addition to said grounds, the learned counsel further submitted that, it is admitted position that the appellant’s name is appearing in the record of municipal counsel as occupant since 1970 onwards. The plaintiffs / respondents’ names appeared from 1990 as owners and injunction was admittedly issued against plaintiffs/ respondents in previously filed suit and said injunction order is still operating and thus achieved finality. Therefore, the order of injunction was passed in R.C.S. No. 153/1995 in favour of the present appellant and running against respondents / plaintiffs amounts to res judicata as against respondents/plaintiffs. Therefore, according to the ld. counsel appearing for the appellant, on aforesaid grounds / questions of law, second appeal deserves consideration. 3. Upon giving consideration to the submissions of ld. counsel appearing for the respondents and from perusal of the points framed by lower appellate court, it appears that lower appellate court framed first point for its consideration / determination that whether plaintiffs prove that the defendant is in possession of suit premises as gratuitous licencee? Said point is answered in the affirmative. Therefore, in my opinion, since said point is answered in favour of the appellant, he can not have grievance about his possession over the suit premises. 4. The Courts below framed issue No.3 i.e. Does defendant prove that he is in possession of suit premises as tenant? Said issue has been answered in negative. From perusal of impugned judgment, except outcome of Regular Civil Suit No. 153/1995, nothing was placed on record by the defendant to claim tenancy of suit premises. The record maintained by the municipal council in respect of suit property from 1990 onwards, clearly shows the name of the original plaintiffs i.e. respondents herein. Therefore, if 4 S.A. 651/2011 the appellant had any grievance about such record maintained by municipal council from 1990 showing the possession of the respondents i.e. original plaintiffs, immediate steps should have been taken by them to challenge the said record. The lower appellate court in para 14 of the impugned judgment has rightly observed that the defendant / appellant herein is trying to misguide Court by stating that the suit was decreed on the ground that the defendant is tenant in suit premises. 5. In fact, from perusal of judgment in R.C.S. No.153/1995 which is placed on record along with CA. No. 14771/2001 with Second appeal, there is no such finding that the appellant is tenant of the suit premises. Therefore, the lower appellate court has also considered effect of the judgment and order in R.C.S. No. 153/1995 in paras 12 to 14 and ultimately held that the appellant herein is not tenant of suit premises. 4. The contention of the counsel for the appellant that the said issue is not adjudicated and answered in R.C.S. No. 153/1995 and therefore it can not be said that the appellant is not tenant of the suit premises, is devoid of any merit. The lower appellate court has categorically held that the appellant herein was in permissive possession of the suit premises. 5. Therefore, in the aforesaid background, the contention of the counsel for the appellant that, they are in possession, and injunction is operating against the original plaintiffs and therefore, the respondents / original plaintiffs are estopped from filing further proceeding for possession, can not be accepted. The appellant herein is in permissive possession and not tenant in the suit premises. The lower appellate court is last court on facts. The lower appellate Court after appreciation of evidence on record, and 5 S.A. 651/2011 particularly the Municipal record from 1990 which shows that the plaintiffs / respondents’ names appears in column of possession of the suit premises, rejected the appeal. The contention of the appellant is rightly rejected by the Courts below. Nothing has been brought on record by the defendant except the out come of the R.C.S. No. 153/1995 to take a view that, he is tenant of the suit premises. The lower appellate court has rightly considered the possession of the appellant as permissive possession and held that the appellant is not tenant of the suit premises. Merely because in R.C.S. No. 153/1995, injunction is operating, is no ground for the competent court to answer the issue of tenancy in favour of the appellants. I do not find any reason to interfere in the judgment and order passed by the appellate court. Second appeal is devoid of any merit. The appeal is dismissed. Consequently civil application No. 14771/2011 stands rejected. ( S.S. SHINDE, J. ) ts k/2011/Dec7/sa651.11