1 IN THE COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO. 698 OF 2009 Shamrao S/o Narayanrao Jogdand and others .. Appellants V E R S U S Satish Amolakchand Dudhoidya and others .. Respondents .... Mr. A.M.Gholap, Advocate holding for Mr. D.D.Pokharkar,Advocate for appellants. Mr. M.R.Chhalani ,Advocate for the respondents .... CORAM : A.V.NIRGUDE, J. DATE : 8th OCTOBER, 2009 PER COURT : 1. The appellants are challenging the concurrent findings of the Courts below and decreeing suit of their eviction. 2. The subject matter of the appeal is a plot of land and small temporary structure standing on it. The respondents purchased this plot of land in the year 1986 even though and knowingly that since prior to it, the appellants are occupying this plot of land for conducting his business of building material, as licensee of the original owner. They apparently raised no objection to their continuance on the suit plot, though previous license between 2 the original owner and the appellants came to an end in the year 1986. 3. In the year 1992, the respondents filed a suit for perpetual injunction against the appellants alleging that they were trying to erect a permanent structure on the suit plot of land. In the plaint of that suit, the respondents clearly stated that they did not want the appellants' occupation of the suit land but they stated that they would take appropriate steps for evicting them in due course. The suit was decreed. 4. In the year 2000, finally the respondents sent the notice terminating license to the appellants, and soon thereafter they brought this action. Both the courts below held against the appellants. 5. The learned advocate appearing for the appellants raised two points. 1. Whether the suit was filed beyond period of limitation and should therefore fail? 2. Whether the suit was hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure ? POINT NO.1:- 6. The learned advocate appearing for the 3 appellants contended that the appellants purchased the suit plot. The license granted by previous owner in favour of the appellants came to an end. Since there was no extension of the license, the period of limitation for the suit for eviction begin in 1986, on the date when they purchased property. This argument is not correct. As said above, the respondents purchased this property knowingly that the appellants are occupying the plot of land and utilising it as licensee of their vendor. They did not take any action against the appellants. This conduct clearly indicates that they allowed the appellants to continue their occupation as their licensee. The appellants occupation of suit plot etc. was thus permissive user. POINT NO.2:- 7. The second question is whether the suit is hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure. The answer to this question is in negative. Earlier suit was filed for specific purpose, which is explained above. It was not filed for evicting the appellants. The respondents expressed their desire that they should evict the appellants. They clearly stated that they would take appropriate steps in that direction, at appropriate time. In other word, the cause of action for evicting the appellants was not pleaded and was not in existence, when earlier suit was filed in the year 1992. 4 8. As said above, in the year 2000 they sent final notice to the appellants terminating their license and thereafter present suit was brought. From this factual aspect of the case, the provisions of Order 2 Rule 2 of the Code of Civil Procedure would not disallow the respondents from filing the present suit. The appellants have failed to show that there is/are substantial question of law involved in the appeal. The appeal, therefore, fails. Consequently, the Civil Application No.9830 of 2009 stands dismissed. 9. Subject to filing of usual undertaking for vacating the suit plot on or before 31st January,2010 the effect of this order shall remained in abeyance. The appellants shall furnish undertaking on 16th October,2009. ( A.V.NIRGUDE, J.) MTK/SA.698.09