1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 849 OF 2007 Yusuf Adam Kuware (Since deceased through his LR's) Amina Yusuf Kuware & Ors. ..Appellants V/s. Tahirabibi Idris Gharte ..Respondent Mr.Rajiv Patil, for the Appellants. Mr.Milind Parab i/b.Ms.Deepak & Co. for the Respondent. CORAM : R.M.SAVANT, J. DATED : 4TH SEPTEMBER, 2008. P.C. This Appeal takes exception to the Judgment and decree dated 23rd August, 2007 passed by the Ad-hoc District Judge-I, Raigad at Alibag, by which the Judgment and decree passed by the Trial Court dated 13th January, 2002 came to be 2 confirmed. 2. The Appellant herein is the original Defendant. The suit filed by the Respondent herein for possession of the suit property which is a room admeasuring 14 x 7 square feet with mezzanine floor situated in the ground floor of house bearing No.352 situated at village Nagothane. A notice under section 106 of the Transfer of Property Act,was issued to the Appellant/ Plaintiff by the Respondent asking him to vacate and hand over the possession of the said suit premises on account of the fact that there were arrears of rent. Both the courts below have concurrently held that the notice issued to the Appellant/Defendant was valid and that he was in arrears of rent and therefore a decree for eviction needed to be passed against the Appellant/Defendant. 3. It is sought to be contended on behalf of 3 the Appellant that in view of the earlier notice issued by the Plaintiff, the suit filed on the basis of the subsequent notice was not maintainable in view of the fact that the earlier notice was not acted upon. It was further submitted that the Lower Appellate Court has erred in confirming the decree passed by the Trial Court, in view of its finding that the Defendant had cleared the arrears on notice being issued. 4. The submission of the learned counsel for the Defendant cannot be accepted though pursuant to the earlier notice, the amount was paid by the Defendant he had thereafter fallen in arrears which had resulted in the second notice being issued to the Defendant. Both the Courts below therefore have rightly held that the said notice was valid and the suit was maintainable. In so far as the finding of the Lower Appellate Court is concerned, in my view, the finding of the Lower Appellate 4 Court is not happily worded considering the provisions of section 106 of the Transfer of Property Act. The Lower Appellate Court in the context of the said provision has held that, assuming that the rent was paid, the notice to quit under section 106 can be given for a reason beside the said reason mentioned in the notice. In the instant case it appears, the Plaintiff wanted the said premises for her own use and occupation. 5. In so far as the plea of adverse possession taken by the Plaintiff is concerned, the Trial Court elaborately dealt with the said issue in its Judgment. Significantly, the Appellant herein has not assailed the finding of the Trial Court in respect of the said claim based on the adverse possession, as no ground is taken in the Memo of Appeal filed in the Lower Appellate Court assailing the decree of the Trial Court on the said ground. The Appellant therefore had probably given 5 up the said claim based on adverse possession. In the said context, the absence of the finding of the Lower Appellate Court in respect of the said issue cannot be faulted with. Both the Courts below have concurrently held against the Appellant/Plaintiff. The challenge raised in the above Second Appeal does not involve any substantial question of law. The Appeal is accordingly dismissed. 6. In view of the dismissal of the Second Appeal, the Civil Application Nos.1566 of 2007 and 1108 of 2008 do not survive and are disposed of as such. 7. The possession of the Appellant is protected for a period of six weeks from date. [R.M.SAVANT, J.] 6