( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 815 OF 2009 Kamalnayan s/o Hiralal Mantri APPELLANT VERSUS Shri Suresh s/o Hiralal Mantri RESPONDENT ..... Mr. A.M. Gholap, advocate for the appellant. Mr. Mukul Kulkarni, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 18th November, 2009] PER COURT : 1. Heard learned counsel for the parties. 2. The second appeal arises out of concurrent judgements rendered by the trial Court and the first Appellate Court. The parties are real brothers interse. The respondent is younger brother of the appellant and had filed suit (Spl.C.S. No. 13/1998) for recovery of possession in respect of the suit premises in which the appellant runs Printing Press. The plaintiff’s case ( 2 ) before the trial Court was that the suit premises are part of house property bearing C.T.S. No. 1934/A/3 and have been allotted to his share during course of partition effected in 1984, but the appellant (defendant) was allowed to use the said premises as a gratuitous licensee. It was agreed between the two brothers that the possession will be delivered to the plaintiff as and when demanded. Significantly, the appellant though denied that he is licensee, yet, pleaded that it was agreed by him to deliver the possession of the suit premises to the plaintiff as and when a tenant inducted in another part of the house property, would vacate the same and would give it to him. Since that tenant did not deliver possession to the defendant, according to him, he was not liable to deliver possession of the suit premises to the plaintiff. 3. On basis of material placed on record, both the Courts held that the suit premises have been allotted to the share of the plaintiff (respondent) and delivery of possession to him could not be subject to the ( 3 ) contingency which was not controllable by the parties. The Courts below held that such kind of contingent agreement was not legally enforceable nor there was any reliable evidence to infer the terms as stated by the defendant. The first Appellate Court held that section 29 of the Contract Act was attracted in the given case and since the defendant did not take effective steps for 20 years so as to obtain eviction decree against his tenant, he was not entitled to seek any protection. 4. The findings of facts need not be interfered with in the exercise of second appellate jurisdiction. No perversity as such is noticed from the impugned judgement. The second appeal is not maintainable in view of “Gurdev Kaur & others v. Kaki & others” (AIR 2006 S.C. 1975). In the interest of justice and having regard to blood relations between the parties, on equitable grounds, six (6) months’ period is granted to the defendant (appellant) to vacate the premises in question. The second appeal is dismissed. ( 4 ) 6. In view of dismissal of second appeal, the civil application No. 12009/2009 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa815-09