... 1 ... IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.20 OF 2006 Mr Andru Anton Fernandes @ Gudekar ...Appellant Vs. Devidas Keshav Rege & Ors. ...Respondents Mr Umesh Mankapure for the Appellant. None for the Respondents. CORAM : A. S. OKA, J. CORAM : A. S. OKA, J. CORAM : A. S. OKA, J. DATE : APRIL 04, 2006. DATE : APRIL 04, 2006. DATE : APRIL 04, 2006. P.C.: P.C.: P.C.: 1. Heard the learned Advocate appearing for the Appellant. The Appellant is the original Plaintiff. Suit filed by the Appellant-Plaintiff for declaration and possession was dismissed by the Trial Court on merits. Appeal was preferred by the Appellant herein to the District Court. The said Appeal has been dismissed. 2. The learned Advocate appearing for the Appellant pointed out that though the Trial Court had held that the suit was maintainable, the Appellate Court has found that the suit was barred by provisions of Order 2 Rule 2 of the Code of Civil Procedure, 1908. He submitted that there was no cross-objection filed by the original Defendants. Inviting my ... 2 ... attention to the finding recorded on this aspect, he pointed out that the earlier suit filed by the Appellant was permitted to be withdrawn with liberty to file a fresh suit. He submitted that as finding on this aspect is clearly erroneous, Second Appeal deserves consideration. 3. I have considered the submissions. There is a substance in the submissions made by the learned Advocate appearing for the Appellant that bar of Order 2 Rule 2 of the said Code cannot be attracted as the earlier suit filed by the Appellant was permitted to be withdrawn with liberty to file a fresh suit. The Appellate Court has taken a very technical view of the matter by pointing out that in order passed in earlier suit, it is not specifically stated that the Appellant is entitled to file a fresh suit on same cause of action. 4. The Appellate Court has not dismissed the Appeal only on this ground. The Appellate Court after considering the evidence on record has come to the conclusion that the Appellant has failed to prove ... 3 ... title. The case of the Appellant was that the suit property belongs to Shivram Raje Sawant Bhosale and it was enjoyed by the forefathers of the Plaintiff as a tenant. However, no documentary evidence was produced by the Appellant-Plaintiff to establish tenancy. No document of grant in favour of the Appellant was produced in the Trial Court. In view of this position, the Appellate Court has confirmed the finding of the Trial Court that the Appellant has failed to prove his ownership or title as regards the suit property. There is no error in the said finding recorded by the courts below. Even if suit is held to be maintainable, the Appellant has not established his title. In view of this finding, no interference is called for. 5. Second Appeal is dismissed with no orders as to costs. JUDGE JUDGE JUDGE