1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 16 OF 2006 Syed Md. Khaja s/o Syed Kasim & others Appellants Versus Maulanbai w/o Abdul Gafoor & others Respondents Mr.M.V.Deshpande, advocate for the appellants. Mr.S.V.Kurundkar, advocate for Respondents No.1, 3 & 5. CORAM: R.M.BORDE, J. DATE : 10th August, 2009. ORAL ORDER: 1 This is an appeal by original defendants raising exception to the concurrent judgments recorded by the Courts below. 2 Respondent No.1-original plaintiff instituted Regular Civil Suit No.1002/2000 (Special Civil Suit No.184/1997) claiming relief of recovery of possession of suit house admeasuring 10 x 20 feet situate at Nai Abadi, College Road, Nanded and perpetual injunction and future mesne profits. According to the plaintiffs, deceased Abdul Gafoor s/o Md. Ismail was husband of plaintiff no.1 and real brother of plaintiffs no.3, 4 and 5 and they are allottees/owners/possessors of plot admeasuring 25 feet North-South and 60 feet East-West, situate at Nai Abadi, Nanded and they have constructed a tin shed in the western portion of the plot and eastern portion of the plot was kept open as court yard. Son of plaintiff 2 no.4 is married with Shahnazbegum, who is daughter of defendant no.1 and their marriage was performed in the year 1981. The disputed plot admeasuring 10 x 20 feet was given in possession of defendants no.1 & 2 on their request for conducting fabricating business. The possession of defendants was that of a licensee. The plaintiff requested defendants to give back the possession. As the defendants refused to do so, plaintiff approached the Court claiming the relief, as set out above. 3 Defendants appeared and resisted the suit by filing written statement. According to them, the property is owned by Nanded Municipal Council and in the absence of Nanded Municipal Council, suit is not tenable and requires to be dismissed for want of impleadment of necessary party. They have also contended that in the family partition, suit property came to the share of defendant no.1. Prior to the allotment of property, defendant no.1, in the year 1971-72 exchanged his residence along with Mohd. Gaffoor s/o Mohd. Ismail and as such, he got absolute possessory rights in respect of the suit property. Defendants, as such, prayed for dismissal of the suit. 4 The trial Court, after considering pleadings of the parties and after recording evidence, recorded a finding that the plaintiffs have established that an area admeasuring 10 x 20 feet was given to the defendants for carrying business of steel fabrication and said license has been terminated by issuing notice. The trial Court has also recorded a finding that the disputed property was not transferred by virtue of exchange between Mohd. Gafoor and defendants. The trial Court, thus, granted decree in favour of plaintiffs. The judgment and decree passed 3 by the trial Court was subjected to challenge at the instance of defendants in Regular Civil Appeal No.357/2001, which came to be disposed of by III Ad hoc Additional District Judge, Nanded, by judgment and decree dated 25.07.2005. 5 I have perused the judgments delivered by both the Courts below. It is urged by the learned Counsel appearing for appellants that the defendants are in possession over the suit property since 1962 and the property, being of the ownership of Municipal Council, plaintiffs have no entitlement to ask for recovery of possession. 6 That, so far as joining of necessary parties is concerned, it is contended by the plaintiffs, that defendant is inducted as licensee in the suit premises. Even after the property is recorded in the Municipal record to be of the ownership of plaintiffs and Municipal Council, so far as revocation of license is concerned, the plaintiffs, who have inducted the defendants, are entitled to revoke same and claim re-possession. The Courts below were justified in recording a finding that the Municipal Council, in the facts and circumstances of the case, is not necessary party. So far as defence raised by defendants is concerned, according to them, they are inducted in the suit premises on the year 1962 and there was exchange between Mohd. Gafoor and them and they have been put in possession of the business premises in exchange of certain other property. The theory propounded by defendants in respect of exchange has not been established. There is also no evidence that defendants were in possession of the suit premises since 1962. Considering the finding of facts recorded by the Courts below, contention raised by the 4 defendants in respect of their entitlement to the property cannot be accepted. The points urged before me in the matter are essentially matters relating to appreciation of evidence. No substantial question of law arises for consideration in the appeal. 7 Appeal, therefore, stands dismissed. Pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa1606