( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 18 OF 2008 WITH CIVIL APPLICATION NO. 2510 OF 2008 Rajesh s/o. Surajmal Dakale .. Appellant Versus Smt. Ushatai w/o. Dattatraya Sarolkar .. Respondent (Kulkarni) Shri A.M. Gaikwad, Advocate for the appellant. CORAM : P.R. BORKAR,J. DATED : 27.07.2009 P.C. :- 1. Heard Adv. Shri A.M. Gaikwad for the appellant. No one is present for the respondent though duly served. 2. The learned advocate for the appellant pointed out to me that the Trial Court has come to conclusion in para 14 of its judgment that Ushatai Dattatraya Sarolkar is not a tenant within the meaning of Section 5 of the Bombay Rent Act ( 2 ) and she has no right right remain in possession of the suit premises; moreover, it is proved by the evidence on record that she has acquired suitable premises and built up a house and is residing there. Considering these aspects, the Trial Court decreed the suit. The First Appellate Court held that the remand is necessary as issue whether defendant Ushatai is/was tenant ought to have been raised. My attention is also drawn to para 18 of the First Appellate Court judgment, wherein it is stated that the learned advocate for respondent–Ushatai has submitted that when there is specific denial by Ushatai that she was residing with her father. Thus, issue regarding respondent Ushatai becoming tenant on death of her father and/or mother has to be decided. 3. In my opinion, before giving finding that Ushatai is not tenant and therefore under Bombay Rent Act Court has no jurisdiction, such issues should have specifically framed as was pleaded by the respondent. 4. In this view of the matter, in my opinion, the order of remand cannot be said to illegal. Therefore, this Appeal From Order is dismissed. ( 3 ) 5. In view of disposal of the Appeal From Order, Civil Application No. 2510 of 2008 does not survive. The Civil Application also stands disposed of. [P.R. BORKAR,J.] snk/2009/JUN09/ao18.08