1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.734 OF 2009 Keshav Jayram Harmalkar (since deceased through legal heirs) Sumati K.Harmalkar & Ors. ..Appellant versus Dyaneshwar Harmalkar & Another ..Respondents Mr.S.S.Redekar for the appellants. None for the respondent. CORAM : R.Y.GANOO, J. DATE : 12th JUNE, 2009. P.C: 1. The Original Plaintiff Keshav instituted suit in the City Civil Court at Bombay against his son Gyaneshwar and MHADA so as to challenge the document in the nature of affidavit purported to have been obtained by Gyaneshwar by practicing misrepresentation and fraud upon said Keshav and 2 for challenging the transfer of the suit premises in favour of Gyaneshwar. The learned Judge of the City Civil Court conducted trial in Short Cause Suit No.1031 of 2008 and dismissed the suit after considering the evidence of Gajanan, present appellant No.1(e), as during the pendency of the trial the original plaintiff Keshav expired. 2. Against this Judgment and Decree dated 1st April, 2009, the appellants have filed the present appeal. 3. I have heard learned Advocate Mr.Redekar on behalf of the appellants. At the stage of trial evidence was led by Gajanan, Appellant No.1(e) and thereafter the trial was over and the learned trial Judge has dismissed the appeal. 4. I have extensively heard learned Advocate Mr. Redekar.. According to the Original Plaintiff Keshav, the document on the basis of which MHADA Authorities transferred the suit premises in 3 favour of respondent No.1 was secured by respondent No.1 by practicing misrepresentation. To the disadvantage of the present appellants, the original plaintiff Keshav expired and the present appellant 1(e) was required to give evidence. I have perused the notes of evidence tendered in the Court by learned Advocate Mr.Redekar. Learned Advocate Mr.Redekar could not point out to the Court on the basis of the said notes of evidence as to how the present appellant 1(e) got knowledge as regards alleged fraud/misrepresentation on part of the present respondent. The evidence led by Gajanan, appellant 1(e) appears to be the repetition of what is stated in the plaint and nothing beyond that. If the original Plaintiff Keshav was made to believe certain things and thereafter upon his death somebody else is giving evidence in the matter, that person who was giving evidence in the matter was expected to depose as to how he gathered information from the original plaintiff about the alleged misrepresentation/fraud. This is absent in the 4 evidence given by the appellant. If this be so, it will have to be observed that the appellants have not placed before the Court adequate material in support of their contention. 5. It is just difficult to believe that the Original Plaintiff or present appellants did not come to know about the transfer of premises in the name of the Respondent. The fact regarding transfer of premises in favour of the respondent was well within the family itself and all the appellants as also Keshav, during his lifetime had opportunity to know by normal means to know the person in whose name the premises stood from time to time. 6. After having considered the impugned judgment, I am inclined to observe that the learned trial Judge has taken correct view of the matter and no interference is required and the first appeal is required to be dismissed at the stage of admission. Hence the Order. 5 ORDER 1. First appeal is dismissed with no Order as to costs. 2. In view of the dismissal of the appeal, Civil Application No.2084 of 2009 does not survive and the same is dismissed with no order as to costs. (R.Y.Ganoo, J.)