1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.633 OF 2010 Bajirao S/o Maruti Pawar ... Appellant. Versus Ranu S/o Ambu Bhalerao ... Respondent. ... Mr.R.N.Dhorde, advocate for the appellant. Mr.R.R.Karpe, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 04.10.2010. PER COURT 1. This is defendant's Second Appeal. The plaintiff had filed the suit for recovery of possession on the ground that the defendant was inducted as tenant at the rate of Rs.200/- p.m. He committed default in payment of the rent. As 2 such the plaintiff issued notice U/s 106 of the Transfer of Property Act, seeking possession. The defendant did not reply the said notice. The plaintiff as such filed suit for possession. The defendant took the plea that he is in possession on the basis of oral agreement of sale. The trial Court decreed the suit. The defendant preferred an appeal before the District Court. The District Court on appreciation of the evidence dismissed the appeal. The defendant has assailed the said judgment and decree in this Second Appeal. Mr.Dhorde, learned counsel for the appellant submitted that the plaintiff has not proved his case. There is no rent deed nor there are any rent receipts and as the plaintiff has not proved his case he is not entitled for a decree. The Courts have failed to consider this aspect. According to the learned counsel, even the issues were not properly framed by the Court inasmuch as the case of the defendant was that he is in possession on the basis of agreement of sale, whereas the Court has framed an issue as "Whether defendant proves that he has purchased the property for Rs.25,000/- (Rupees twenty five 3 thousand)". According to him, the Courts have not applied their mind. 2. With the assistance of the learned counsel for the respective parties, I have gone through the impugned judgment and decree. Even if the case of defendant of oral agreement, it is assumed, still, the defendant has not filed any suit or counter claim for specific performance of contract. As the theory of defendant is based on oral agreement, the defendant is not entitled for protection U/s 53-A of the Transfer of Property Act. The defendant admits the plaintiff to be the owner of the property as such there would be no impediment for the plaintiff to seek possession. The plaintiff has led oral evidence to show that the defendant was tenant and had agreed to pay Rs.200/- p.m. He had even issued the notice to that effect. The same has been received by the defendant. The defendant has not denied the contents of the said notice nor had filed any reply to the same. Both the Courts have concurrently on appreciating the evidence has held that the rent agreed was Rs.200/- p.m. and 4 that the defendant was tenant and has decreed the suit. No perversity can be found in the appreciation of the evidence. As such the Second Appeal being sans any substantial question of law is dismissed. However, there shall be no order as to costs. 3. In view of dismissal of Second Appeal, the Civil Application does not survive and it is accordingly disposed of. (S.V.GANGAPURWALA,J.) asp/office/sa633.10