1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 337/2007 (Digamber Bhuraji Hiwase Vs. Mahadeo Govindrao Manekar & anr.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 23 rd JUNE, 2008. Heard Shri Chandurkar for the appellant, and Shri Sadar for the respondent no.1. The appellant is the original defendant. A suit was filed by the plaintiff for possession, arrears of licence fees and an enquiry into future mesne profit. According to the plaintiff, he was the owner of the suit property and he had employed the father of the defendants as Saldar. Being a Saldar, the father of the defendants was permitted to occupy the suit property as a licensee thereof on payment of Rs. 40/- per month as licence fees. Since the defendants failed to vacate the premises in spite of the requests made on behalf of the plaintiff, a suit was instituted. The defendants denied the claim of the plaintiff and further denied that the plaintiff was the owner of the suit property. It was pleaded by the defendants that they became the owners of the suit property by adverse possession in view of their long standing possession over the suit property since the year 2 1940. According to the defendants, their grandfather and father had occupied the site in the year 1940 which was barren and had constructed a house thereon. It is, however, pertinent to note that the defendants had not pleaded as to whom the suit property belonged. The trial Court framed the necessary issues and after appreciating the material evidence on record, dismissed the suit of the plaintiff mainly on the ground that the plaintiff had failed to prove that the defendants' father was inducted in the suit property as licensee thereof. The trial Court heavily relied on the words “Bhadyane” (lease) in the examination-in-chief of the plaintiff. The trial Court held that in view of the user of the word “Bhadyane” in the evidence, it was clear that the defendants were not the licensee in the suit property as pleaded by the plaintiff. The first appellate Court, however, reversed the findings recorded by the trial Court, holding that mere user of the word “Bhadyane” (rent) loosely used by the plaintiff in his evidence instead of the words “Licence” and “fee”, would not be enough to hold that the defendants' father was the tenant in the suit property and not a licensee thereof. The judgment of the appellate Court is challenged in the instant second appeal. Placing heavy reliance on the word “Bhadyane” from the oral evidence of the plaintiff which was recorded in Marathi, it was argued on behalf of the appellant that the plaintiff ought to have been non- 3 suited by the first appellate Court in view of the user of the word “Bhadyane” in the examination-in-chief which clearly showed that the defendants' father was not a licensee. It is further submitted on behalf of the appellant that the first appellate Court also was not justified in granting a decree for recovery of Rs. 1440/-, in the absence of any evidence in that regard. According to the counsel for the respondent no.1, the judgment passed by the first appellate Court is extremely just and proper and does not call for any interference in a second appeal. According to the counsel for the respondent no.1, the findings recorded by the appellate Court are based on a proper appreciation of the evidence on record. He, therefore, sought for the dismissal of the present appeal. I have perused the judgments passed by both the Courts. Both the Courts have concurrently held that the defendants had failed to prove their ownership over the suit property by adverse possession. The defendants had neither pleaded nor proved as to whom the property belonged and as to how they had acquired the ownership over the same by adverse possession. The first appellate Court had rightly held that the use of the word “Bhadyane” was not sufficient to hold that the defendants' father was inducted in the property as a tenant and the plaintiff had not succeeded in proving that the defendants were the licensee. The parties belong to a village and the property is situated in the Gram Panchayat. There is no specific word for licence 4 and fees used in a common parlance and in the day to day life. In this background, use of the word “Bhadyane” (lease) in the examination-in-chief by the plaintiff, as rightly held by the first appellate Court, was not enough to hold that the defendants' father was a tenant in the suit property and was not a licensee thereof. Even otherwise, the suit property is situated in the Gram Panchayat and it was not the case of the defendants that since they were the tenants in the suit property, the suit filed by the plaintiff was bad as the permission of the Rent Controller was not obtained. Both the Courts have held that the plaintiff is the owner of the suit property. In the background of the aforesaid facts, it cannot be said that the findings recorded by the first appellate Court are unjust and perverse. It also cannot be said that there is no evidence for granting a decree for recovery of arrears of licence fees to the tune of Rs. 1,440/- as the plaintiff had tendered oral evidence in that regard. Since no substantial question of law arises for consideration in the instant second appeal, same is dismissed with no order as to costs. At this juncture, a request is made on behalf of the appellant to permit the appellant to reside in the premises atleast for a period of six months from today as the second appeal is decided in the midst of the rainy season and it would be difficult for the appellant to search for an alternate accommodation in the rainy season. The prayer made on behalf of the appellant is 5 opposed by the learned counsel for the respondent no.1. However, since the appellant is residing in the suit property and the second appeal is decided in the midst of the rainy season, it would be in the interest of justice to permit the appellant to reside in the suit property for a period of four months. Therefore, the appellant is permitted to reside in the suit premises on his furnishing an undertaking before this Court that the appellant would positively vacate the suit premises on or before 31st of October, 2008, within a period of two weeks from today. JUDGE RMP