1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPEALLATE SIDE, BENCH AT AURANGABAD Second Appeal No. 479 of 2009 Manik s/o Baburao Kothale ... Appellant V E R S U S Ibrahim Khan s/o Miya Khan Deceased – Through L.Rs. and Others. ... Respondents ... Mr. D.P. Palodkar, counsel for the appellant Mr. P.F. Patni, consel for respondent/1A-CVTR ... CORAM: V.R.KINGAONKAR, J. DATE: 4th December, 2009 PER COURT : 1. Heard. 2. The appellant is original defendant. The respondents are legal representatives of deceased plaintiff Ibrahim Khan. The suit (Regular Civil Suit No. 277 of 2000) for eviction of the appellant, came to be decreed. The appellant challenged the eviction decree by filing appeal (Regular Civil Appeal No. 218 of 2006). The first Appellate Court dismissed the appeal. Thus, there are concurrent findings of the Courts below as regards unauthorized possession of 2 the appellant in respect of the suit premises. 3. There is no dispute about the fact that the appellant is running a road side hotel in the suit premises. It is also undisputed that he is not owner of the premises in question. Nor it was his case that he acquired prescriptive title in respect of the suit premises. What he contended was that the suit premises are not part and parcel of 1133/01, to which the plaintiffs staked their claim of ownership. According to the plaintiffs, the appellant had executed an agreement dated 5th June, 1999, styled as “Kabuliyatnama” (Exh.37) and had agreed to pay rent of Rs.40/- per month. A quit notice was served on him, which was not complied with, and therefore, the suit was filed. 4. Indisputably, the suit premises are governed by the provisions of the Rent Control Act. It is not in dispute that the temporary construction of the hotel is made on agricultural land. The evidence of parties show that father of the appellant was running hotel since long. On this basis, it is argued that false suit was filed in order to misuse the document and to indicate inducement of the tenancy since 5th June, 1999. The counsel would submit that identity of the suit premises is not duly proved, and that it is certainly not part 3 of the house property claimed by the deceased plaintiff. He would submit that first Appellate Court has committed patent error while rejecting the request of the appellant to permit additional evidence under Order XXXIX Rule 27 of Civil Procedure Code. The appellant desire to file certain documents including the map before the first Appellate Court. The first Appellate Court however rejected his application. 5. Whatever contentions are raised in this Second Appeal, mainly pertain to the appreciation of the evidence by the Courts below. Assuming that there is some error in the description of the suit property as part and parcel of the house No. 1335/1, then also it does not stand to reason, as to how the appellant is likely to get any advantage. It appears that though the appellant pleaded that the document dated 5th June, 1999 was fabricated and he had signed only a blank stamp paper, yet his admissions clearly indicated due execution of the document. The plaintiffs proved the said document (Exh.37) by examining an attesting witness. The first Appellate Court observed “Further, during cross examination, defendant has admitted that the agreement at Exh.37 contains the terms and conditions settled between him and plaintiff. He admits his signature at Exh.37. If the defendant is admitting his signature on document 4 Exh.37, then burden lies upon him to prove that the contents were later on inserted by the plaintiff and the plaintiff had taken his signature on the blank stamp paper in question.” It is further observed by the first Appellate Court that the appellant (defendant) admitted that he has executed the Kabuliyatnama of southern part of hotel. The first Appellate Court further observed “ the defendant has specifically admitted that he is a tenant in the suit premises and originally the proper;ty belong to plaintiff.” 6. The first Appellate Court has duly considered the admissions of the appellant. Once it is found that the appellant is not concerned with the ownership rights in respect of the suit premises and that the respondents probabilized their case of ownership, then it follows that the appellant cannot seek any protection. His tenancy rights are duly terminated and even otherwise stand forfited due to his denial of ownership as tenant and landlord. Considering all the reasons discussed by the Courts below and the concurrent findings rendered against the appellants, I do not find any substantial question of law involved. The appeal is dismissed. ( V.R. KINGAONKAR, J.) srm/sa/479/09 5 SRM/* 6